dvd-discuss.archive.0009100640 764 764 13147545 7165332117 15376 0ustar wseltzerwseltzerFrom dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 00:06:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA32094 for dvd-discuss-outgoing; Fri, 1 Sep 2000 00:06:53 -0400 Received: from emperor.hwrd1.md.home.com (cc273095-a.hwrd1.md.home.com [24.3.46.177]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA32091 for ; Fri, 1 Sep 2000 00:06:52 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id AAA29951; Fri, 1 Sep 2000 00:07:24 -0400 Date: Fri, 1 Sep 2000 00:07:24 -0400 From: Jim Bauer Message-Id: <200009010407.AAA29951@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA now thinks linking is illegal Newsgroups: local.dvd-discuss In-Reply-To: <200008311012.GAA28739@maynard.mail.mindspring.net> References: <4.1.20000830195932.018a0690@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: >Surely the e-mail cease and desist messages were sent in >response to the firestorm caused by the slur against >"open source" of DVD CCA's opposition to the Pavlovich >quash motion in California. > >Never forget that MPAA is nothing but a publicity and lobbying >machine. And sending reams of spam is all it has ever done >throughout its history. > >And spamming is, and has been, Jack Valenti's only reason >to exist. What he can accomplish with lying and bluster eases >the cost of paying gunslingers to do it and thereby diminishing >stockholders return on investment. And nothing pleases >Jack more than to see bluff and bullshit his consume his >enemies' resources -- to keep his annual bonus high and >from having to do honest labor. > >The e-mail C&Ds are MPAA's fight against Slashdot. Why some >ISPs are caving is no more mysterious than why some >consumers believe advertising, rather campaign promises. It's a long shot, but could any of the anti-spam laws be used agains the MPAA's C&D emails? (Assuning that is who is really sending them.) -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 04:07:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA00674 for dvd-discuss-outgoing; Fri, 1 Sep 2000 04:07:05 -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 EAA00664 for ; Fri, 1 Sep 2000 04:07:03 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 1 Sep 2000 10:02:35 +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; Fri, 1 Sep 2000 09:44:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 1 Sep 2000 09:44:57 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000901094457.C24865@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 Consilgere@cs.com wrote: > My only problem with an argument like that is that it implies that all source > code is always legal to posess under all circumstances. I honestly don't > believe that should be the case. There are plenty of instances where source > code being as "protected" as some of our ranks would have it would be > hazardous to business and consumer alike. can't agree on that. source never is dangerous. executing it (depending on language, with a compiliation beforehand) can turn it into something dangerous. but hey, here's a short snippet that'll wipe any unix system clean if run as root: #!/bin/sh rm -rf / you saying those two lines are illegal code? :) programs are tools. you can use a hammer to kill someone, but usually you use it to drive nails into walls. I own several swords. swords are tools made exclusively to kill people. they're still not illegal, because they have other uses, too - looking good over the fireplace, for example. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 04:07:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA00662 for dvd-discuss-outgoing; Fri, 1 Sep 2000 04:07:04 -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 EAA00658 for ; Fri, 1 Sep 2000 04:07:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 1 Sep 2000 10:02:35 +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; Fri, 1 Sep 2000 09:40:47 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 1 Sep 2000 09:40:47 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000901094047.B24865@lemuria.org> References: <80.252dc2.26e05206@cs.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <80.252dc2.26e05206@cs.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 Consilgere@cs.com wrote: > His decision dealt with DeCSS being illegal in all its forms. so that means an english-language essay describing DeCSS (in enough detail to implement it) is illegal? what if I leave out one detail that you need? what if two, three, n ? what if I just talk about DeCSS? what if I talk about something else and just mention DeCSS? is this mail illegal? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 04:07:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA00681 for dvd-discuss-outgoing; Fri, 1 Sep 2000 04:07:07 -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 EAA00675 for ; Fri, 1 Sep 2000 04:07:05 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 1 Sep 2000 10:02:35 +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; Fri, 1 Sep 2000 09:46:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 1 Sep 2000 09:46:01 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Enforcement vs Jurisdiction Message-ID: <20000901094601.D24865@lemuria.org> References: <20000831212234.20435.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000831212234.20435.qmail@web511.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: > Well, you aren't even in the US, so I doubt there's much that could > happen. The worst case scenario is that you'd have to avoid travelling > to California. like the women I talked to on the phone when calling the court once said: I'll be arrested at disneyland. :) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 04:07:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA00663 for dvd-discuss-outgoing; Fri, 1 Sep 2000 04:07:04 -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 EAA00654 for ; Fri, 1 Sep 2000 04:06:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 1 Sep 2000 10:02:35 +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; Fri, 1 Sep 2000 09:37:43 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 1 Sep 2000 09:37:43 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000901093743.A24865@lemuria.org> References: <20000831224038.A23169@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 Steve Stearns wrote: > > the point (that kaplan didn't get) is that you cannot draw a sharp line > > without it being completely arbitrary and the source of all kinds of > > contradictions. > > Well, it wouldn't be the first time that a law was completely > arbitrary. Take a look at drug control policy for some good examples of > that. aside from the law, there's the interpretation of the law. the law says "device". kaplan says that code is a device. I say that if code is a device, then speech is also a device, because there is no hard line between natural and programming languages. examples: COBOL is a programming language that seems to be almost an english description of the process. "pseudo code" is an english description, but almost a program. I'm certain that for at least a subclass of the english language (say, as long as you follow a certain structure and use a limited dictionary) automatic essay-to-program conversation is possible, even easy. and the problem there is NOT in the limits to structure etc. - poems, haikus, lyrics, whole books even ("paradise lost" by milton comes to mind) have been written in english while following very strict specifications on structure etc. so either speech is also a circumenvention device, and just talking about decss is trafficking(sp?), or kaplan's interpretation is stupid and code is NOT a device. is a compiled program a device? hardly. if I re-implement decss in PHP, Perl or any other interpreted language, then there is no compilation. isn't that awful for the copyright industry? not being able to protect themselves against piracy? bzzt, wrong answer. piracy is still illegal and can be prosecuted. it's just that we don't outlaw cars because you can drive someone over with them. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 07:25:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA02397 for dvd-discuss-outgoing; Fri, 1 Sep 2000 07:25:03 -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 HAA02394 for ; Fri, 1 Sep 2000 07:25:01 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e81BPWn11195 for ; Fri, 1 Sep 2000 14:25:32 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 1 Sep 2000 14:25:31 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. In-Reply-To: <20000830164421.A16417@eldritchpress.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 30 Aug 2000, Eric Eldred wrote: >But aren't they works that cannot be distributed--because >of some law or regulation OTHER than copyright law--and >isn't DeCSS an example of a work that copyright law alone >allows to be copyrighted but not distributed? Are there >other examples of this phenomenon? No, since DMCA isn't copyright. It's paracopyright. Makes more than a few people wanna puke. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 09:06:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03557 for dvd-discuss-outgoing; Fri, 1 Sep 2000 09:06:05 -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 JAA03554 for ; Fri, 1 Sep 2000 09:06:03 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13UqWe-0001iq-00 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 15:06:32 +0200 Date: Fri, 1 Sep 2000 15:06:32 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS fairytale In-Reply-To: <20000901093743.A24865@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 I was playing with the idea of rewriting the DeCSS description into a fairytail. The snippet below is just a half cooked description on the wiring of the first table. The entire CSS algorithm could be described in terms like this on a few pages. If I completed this story, could 2600 publish it on their website - and still stay within Kaplans ruling ? frank ------> The Magic movie factory: A fairytale by Frank A. Stevenson This is the story about the magic, that happens inside every ordinary DVD movie player when you play a movie. It was told to me by a very old and wise man. You see most people think that DVD players are made up of stuff they call silicone. But as you might have noticed on your DVD drive there is a small sticker saying that you shouldn't open it. That is because, in truth, the player is populated by small e-elves, or simply elves. And they perform a very strange ritual every time you wan't to play a movie. I will try and explain it, in order that you may fully apreaciate what goes on when you watch a DVD movie. The elves work much like a modern office, with some phones and table lamps, but no computers or anything fancy. Most of the work is done by looking and turning on and of these table lamps according to the rules. The rules were once written by the elven king, but he has been long gone, and no one seems to rember where he laft, or exactly what he looked like, so they simply keep a picture of Mr Jack Valenti on the office wall, since it is a close enough resemblemce. The most complicated room, in the elven offices is the F room. Every so often a phone call will me made to the office manager, reading out a sequence of 8 light switch settings. Starting with A red light ( labeled MSB - but it seems to have been forgotten what that means, som have conjured More Sol Beer, but this is mostly a theme beeing discussed over elven ale... ) The office manager the turns of / on the table lamps, situated on the front of his desk, with small labelse placed underneath, counting 7,6,5...,0 beginning with MSB as number 7. The rule that the office elves follow are archaic but important, there are three rules: AND - A worker that uses this rule, will switch his light on if the to lights he has been assigned to watch are both switched on. OR - The worker assigned this rule, will switch his light on if either lamp that he watches is turned on XOR - The worker will light his lamp, if only a single, of the two lights he is watching is on. Some workers, follows the same rules, but sets their own table lamp opposite of what the rules say they should be. To make this story short, I will just list the elvens, and the lamps they are watching, together with the rules they follow: Argyr - Uses And of lamp 0 and 1 Brille - Uses Xor of Argyr and lamp3, and sets his light opposite. Cywig - Uses And of 4 and 5 Dille - Uses Xor of Cywig and 6, sets his lamp opposite Egil - Uses And, and reads the opposite of Dille and uses Brilles as is Fille - Uses And, and reads the opposite of Brille and uses 5 Hama - Reads uses And, and reads the opposites of both 1 and 3 Ingi - Uses And and reads the opposite of Brille, and uses Hama as is Janis - Uses And with Argyr and lamp 3 Kumi - Uses And With Ingi and Janis Lumi - Uses lamp 3 and the opposite of lamp 1 Mbwa - Uses a special rule, and will only light his lamp if either Ingi, Kumi or Limi has a light. ========== More to follow, mayby ================ frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 10:01:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04049 for dvd-discuss-outgoing; Fri, 1 Sep 2000 10:01:07 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA04046 for ; Fri, 1 Sep 2000 10:01:05 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id KAA26459 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 10:01:38 -0400 (EDT) Date: Fri, 1 Sep 2000 10:01:38 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS fairytale Message-ID: <20000901100137.B25440@ils.unc.edu> References: <20000901093743.A24865@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i In-Reply-To: ; from frank@funcom.com on Fri, Sep 01, 2000 at 03:06:32PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 01, 2000 at 03:06:32PM +0200, Frank Andrew Stevenson wrote: > > I was playing with the idea of rewriting the DeCSS description into a > fairytail. The snippet below is just a half cooked description on the > wiring of the first table. The entire CSS algorithm could be described in > terms like this on a few pages. If I completed this story, could 2600 > publish it on their website - and still stay within Kaplans ruling ? > ... So you're going to re-write DeCSS in assembler? Or are you going to take the C source? The commands (elves) you sent are not nearly enough for C, and not even enough for assembler (e.g., where's NOP? [the lazy elf]). Basically, I think this is a good idea. Two people have recently posted programs to cypherpunks that took a plain English document (such as the declaration of independence) and used it to encode the DeCSS C code. I have been working on a program that does something similar, but in the tradition of winowing & chaffing (i.e., it produces a long list of numbers that may be recombined with a text to produce the C code, executable, tar file, or whatever else you might want to encode). Bottom line, for Kaplan, is that any sort of provision by 2600 is likely to be frowned upon IFF it's code, or an analogue to code. However: What you described is intended, I think to be a description of the (reverse engineered) CSS ALGORITHM. I don't think Kaplan has prohibited 2600 or anyone else from distributing this, and in fact, I like this approach. Although the CA case is devoted to this topic (as a trade secret violation), the NY case was purely DMCA. Most importantly, perhaps, is that dissemination of the CSS algorithm with appropriate instructional components would fail under Kaplan's tests to be a violation of the DMCA, and would PASS as having its primary goal be instruction. Why didn't we do this before? -- Greg // Gregory B. Newby, Assistant Professor in the School of Information // and Library Science, University of North Carolina at Chapel Hill // CB# 3360 Manning Hall, Chapel Hill, NC, 27599-3360 E: gbnewby@ils.unc.edu // V: 919-962-8064 F: 919-962-8071 W: http://www.ils.unc.edu/gbnewby/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 11:18:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04517 for dvd-discuss-outgoing; Fri, 1 Sep 2000 11:18:29 -0400 Received: from web55.ntx.net (web55.ntx.net [209.1.144.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04514 for ; Fri, 1 Sep 2000 11:18:28 -0400 Received: from cdpage.com (bdsl239.dnvr.uswest.net [209.180.249.239]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id IAA02492 for ; Fri, 1 Sep 2000 08:19:25 -0700 (PDT) Message-ID: <39AFC6AB.13CE15E7@cdpage.com> Date: Fri, 01 Sep 2000 09:09:31 -0600 From: Dana Parker Organization: DVD Diva X-Mailer: Mozilla 4.72 [en] (Windows NT 5.0; I) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] LA Times story about Chinese DVD piracy References: <20000901093743.A24865@lemuria.org> <20000901100137.B25440@ils.unc.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 http://www.latimes.com/business/20000831/t000081632.html -- 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 Fri Sep 1 11:27:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04646 for dvd-discuss-outgoing; Fri, 1 Sep 2000 11:27:50 -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 LAA04643 for ; Fri, 1 Sep 2000 11:27:49 -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 LAA04826 for ; Fri, 1 Sep 2000 11:26:06 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.1.20000830205534.01d46ec8@law.harvard.edu> References: <4.1.20000830205534.01d46ec8@law.harvard.edu> Date: Fri, 1 Sep 2000 09:22:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Kaplan on Sony --- wrong again. 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 LAA04644 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 9:13 PM -0400 8/30/2000, Wendy Seltzer wrote: >At 04:49 PM 8/30/00 -0400, Robert S. Thau wrote: >>While thumbing my way through Kaplan's opinion, I wrote: >> >> > Footnote 170 then reads: >> > >> > Section-by-section analysis 9 ("The Sony test of 'capab[ility] of >> > substantial noninfringing uses,' while still operative in cases >> > claiming contributory infringement, is not part of this >> > legislation") >> > >> > I'll try to figure out this evening which report he's reading, since I >> > can't find many of his quotes in the ones I pulled out of >> > thomas.loc.gov yesterday. >> >>All right, I'm stumped. It looks to me as if Kaplan means to quote >>the section-by-section analysis fromthe House judiciary committee >>report on the bill. >> >>Well, when I go into the thomas.loc.gov search page for reports from >>the 105th Congress, and ask for committee reports on hr2281, I get >>four: > >I can't find it online either, but it's item 7 in a legislative history >volume that >supplements Nimmer on Copyright: "Section-By-Section Analysis of H.R. 2281 >as Passed by the United States House of Representatives on August 4, 1998" >Comm. Print 105-6 (too old to be in PDF from the Judiciary Committee's site). > >"While this legislation is aimed primarily at 'black boxes' that have >virtually no legitimate uses, trafficking in any product or service that >meets one or more of the three points in this test could lead to >liability." (9) > >"No legitimate manufacturer of consumer electronics devices or computer >equipment could reasonably claim to be left in doubt about the course of >action to be avoided, simply because the phrase 'technological measure' is >not itself defined in the bill. The only obligation imposed on >manufacturers by this legislation is a purely negative one: to refrain from >affimatively designing a product or component /primarily/ for the purpose >of circumventing a protective technology that effectively controls access >to or uses of a copyrighted work." (11) > >Yet the concern was not that a definition of "technological measure" might >be too broad, but that it might "inadvertently deprive legal protection to >some of the copy or access control technologies that are or will be in >widespread use for the protection of both digital or analog formats." [!]  > >The Judiciary Committee differed pretty strongly from Commerce on Bliley's >Macrovision and video card problems, saying performance degradation >wouldn't make a TPM "ineffective." > >Yuck. >--Wendy >--- Thau goes on to say "But in the meantime, it's important to note that the issue of Sony was specifically revisited in the conference committee, if not before, and the committee was praised in subsequent debate for incorporating Sony." Is that correct? Doesn't the conference committee have the last word? Arnold From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 11:55:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04945 for dvd-discuss-outgoing; Fri, 1 Sep 2000 11:55:29 -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 LAA04942 for ; Fri, 1 Sep 2000 11:55:28 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id LAA15507 for ; Fri, 1 Sep 2000 11:56:02 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA22481; Fri, 1 Sep 2000 11:56:02 -0400 (EDT) Date: Fri, 1 Sep 2000 11:56:02 -0400 (EDT) Message-Id: <200009011556.LAA22481@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on Sony --- wrong again. In-Reply-To: References: <4.1.20000830205534.01d46ec8@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold writes: > Thau goes on to say "But in the meantime, it's important to note that > the issue of Sony was > specifically revisited in the conference committee, if not before, and > the committee was praised in subsequent debate for incorporating Sony." > > Is that correct? Doesn't the conference committee have the last word? That's correct. I did indeed say that ;-). Of course, this whole matter turned out to be rather deeper and muddier than I thought --- the report Kaplan was reading turns out to be on the final House version (the one sent to conference), and not on the initial committee markup. That said, 1201 was revised in conference, and I would certainly expect (IANAL!) that the conference committee report should be taken as authoritative on *at least* the points where they were revised (possibly also language originally introduced in the Senate, etc.). As to whether Sony was one of those points --- I was taking Klug's word for it. He was not a conferee, but he kept abreast of their maneuvers, and describes them in some detail in debate. Not as strong a citation as one might like, particularly given the muddiness of these waters generally, but it's there. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 12:00:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05094 for dvd-discuss-outgoing; Fri, 1 Sep 2000 12:00:48 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA05091 for ; Fri, 1 Sep 2000 12:00:44 -0400 Received: by aero.org id <17232-3>; Fri, 1 Sep 2000 09:00:59 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdSCAa02834; Fri Sep 1 08:57:38 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 08:52:47 -0700 Subject: Re: [dvd-discuss] Things I wish had been asked at trial, II 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 09/01/2000 08:52:47 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 1 Sep 2000 08:57:43 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes but think of how you are helping the global economy.....and besides, the DVD entertainment experience is superior to the old fashioned VHS so you should just be glad that they are sticking it to you....... Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Things I wish had arvard.edu been asked at trial, II 08/31/00 07:01 PM Please respond to dvd-discuss On Thu, 31 Aug 2000 16:41:10 -0700, Michael.A.Rolenz@aero.org wrote: >Don't you just love the way that they believe you have nothing to spend >your money on but to have them change codes for you and when you've changed >it enought to throw your player away and buy a new one. With six players you can get the same functionality that you can with an eighty dollar VCR. That's progress! __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 12:01:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05114 for dvd-discuss-outgoing; Fri, 1 Sep 2000 12:01:34 -0400 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA05111 for ; Fri, 1 Sep 2000 12:01:32 -0400 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id MAA21152 for ; Fri, 1 Sep 2000 12:02:05 -0400 (EDT) Message-Id: <4.2.2.20000901114121.019583f0@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Fri, 01 Sep 2000 12:02:00 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Kaplan on Sony --- wrong again. In-Reply-To: References: <4.1.20000830205534.01d46ec8@law.harvard.edu> <4.1.20000830205534.01d46ec8@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:22 AM 9/1/00 -0400, Arnold G. Reinhold wrote about the Judiciary Committee Report: >Thau goes on to say "But in the meantime, it's important to note that the >issue of Sony was >specifically revisited in the conference committee, if not before, and >the committee was praised in subsequent debate for incorporating Sony." > >Is that correct? Doesn't the conference committee have the last word? > >Arnold I'm no expert on legislative history, but it seems that the Conference Committee, later in time and reconciling differing House and Senate bills, would be more authoritative. Maybe the answer is that if we have to keep referring to such a tortured legislative history, this law is so hopelessly confused that it gives no one notice of what it prohibits. None of these drafters expressed his views clearly through the statutory language. Call the whole section void for vagueness because it leads to discretionary enforcement at the whim of the copyright holder. --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 Sep 1 12:20:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05514 for dvd-discuss-outgoing; Fri, 1 Sep 2000 12:20:09 -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 MAA05511 for ; Fri, 1 Sep 2000 12:20:07 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA12244 for ; Fri, 1 Sep 2000 09:20:39 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma012053; Fri, 1 Sep 00 09:19:50 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA25264; Fri, 1 Sep 2000 10:19:50 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Rowing the 30,000 other kayaks Date: Fri, 1 Sep 2000 10:24:30 -0600 Message-ID: <002901c01431$1ab81ac0$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 Kaplan's comments in court, restraining only one of 3N,000 (I can't remember N) would not be considered reasonable for issuing an injunction. IANAL so I don't know the proper term for this concept (it certainly doesn't involve kayaks). Note: I'm NOT repeat NOT suggesting anyone within the jurisdiction of SDNY or CA do any of this of course. I would want anyone to get in trouble. If you're from somewhere else -- read on. Well an idea just occurred of a way in which to demonstrate these kayaks -- and incidentally irk the P's. CNN (and I would imagine Time, ABC, and other newsmedia outlets owned by the P's) has a discussion board. Various forms of DeCSS and DVD-CCA related information could easily be included in posts to these discussion boards. For example links to DeCSS mirrors could be included in the message -- in context of course, nothing gratuitous ;-). Other posts might include the list of all known player keys asking why these numbers are restrained speech when another apparently random group of numbers is not. The beauty of this is either (a) these various boards have to start censoring messages that meet all the criteria for legitimacy (see below for CNN's list) (b) change the terms of for posting (c) close down their boards (d) function with unclean hands or (e) disclaim the contents of their message boards and allow the links, keys, and other content to remain. CNN blinked, Insider-style at the linking issue, embarrasing them. Any of (a)-(d) highlight the P's lack of concern for any first amendment or journalistic integrity standards leaving them open to public scrutiny and embarrasment. (e) highlights the futility of the injunction (if the P's can't control their own site, how can they expect the D's to do so or to courts to control the internet). "It is no enough that one path lead to victory, but that all possible paths lead to victory." We may get lucky and one of the P's may realize that attacking the press is attacking themselves and treating their customers like criminals is hurting them more than home-recording and fair-use ever could. Deviously yours, John Zulauf private netizen The "code of conduct" for CNN community messages. Abide by these and what is their grounds for censorship? Beauty, eh? Please abide by the following code of conduct: No profanity or obscenities of any kind, even disguised with *asterisks. No personal attacks on other Community participants (personal attacks are defined as comments that reflect upon the person instead of their opinion) Slanderous, defamatory, obscene, indecent, lewd, pornographic, violent, abusive, insulting, threatening and harassing comments are not tolerated. Please do not stray from the discussion topic. No impersonation of other participants or public figures. A user may choose an appropriate nickname in chat as long as a real name is used in the personal information field (which is not publicly visible on message side). No advertising of any kind, including non-profit organizations. No copyrighted material is allowed. Please use links instead of quotes from sources outside CNN. On message boards no oversize fonts, JavaScript, tables, headings or other advanced HTML commands are allowed. Please use only bold or colored fonts to emphasize your points. BTW... note the distinction CNN makes between linking and quoting in terms of copyright violation. If linking to content is effectively the same as quoting (per the P's and the Court) why does CNN make the distinction -- could it be that the P's have lawyers taking opposite opinions before the court? I wonder if their is such a position regarding linking by CNN (or other P's news subsidiary) in some court filing. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 12:45:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05986 for dvd-discuss-outgoing; Fri, 1 Sep 2000 12:45:06 -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 MAA05983 for ; Fri, 1 Sep 2000 12:45:04 -0400 Received: from ppp.anonymizer.com (c3T2-129.015.popsite.net [216.126.186.129]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id JAA14049 for ; Fri, 1 Sep 2000 09:47:32 -0700 (PDT) Message-Id: <4.3.2.7.2.20000901093313.00c71720@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, 01 Sep 2000 09:44:02 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Shamos and The Matrix Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A seconds-long investigation has revealed that when Shamos swapped out his SiS, what he (or Burns) got back may not have been the full-length version of The Matrix. Rather, there may be a suggestion that what they got may be found on the Net here: http://yoyo.org/levine/films/misc/matrix.mpeg This may, or may not, explain many things. --- "It was juvenile and a little stupid, so we all liked it immediately." (Robert Welter, _Night of the Avenging Blowfish_) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 13:50:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06310 for dvd-discuss-outgoing; Fri, 1 Sep 2000 13:50:28 -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 NAA06307 for ; Fri, 1 Sep 2000 13:50:26 -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 e81HoTX05132 for ; Fri, 1 Sep 2000 13:50:29 -0400 (EDT) Message-ID: <39AFEC6A.56F3C6AB@mindspring.com> Date: Fri, 01 Sep 2000 13:50:35 -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] Rowing the 30,000 other kayaks Content-Type: text/plain; charset=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 an idea just occurred of a way in which to demonstrate these kayaks -- > and incidentally irk the P's. CNN (and I would imagine Time, ABC, and other > newsmedia outlets owned by the P's) has a discussion board. Various forms > of DeCSS and DVD-CCA related information could easily be included in posts > to these discussion boards. For example links to DeCSS mirrors could be > The CNN message board that looks closest to the topic is "Digital age copyright" under the "law" section: http://community.cnn.com/cgi-bin/WebX?13@62.AFJRcUtyNw8^0@.eeb3094/13 see ya there, mickeym From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 14:19:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06551 for dvd-discuss-outgoing; Fri, 1 Sep 2000 14:19:42 -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 OAA06548 for ; Fri, 1 Sep 2000 14:19:40 -0400 Received: from ip212.bedford9.ma.pub-ip.psi.net ([38.32.79.212]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13UvQD-0003Dh-00 for dvd-discuss@eon.law.harvard.edu; Fri, 01 Sep 2000 14:20:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos and The Matrix Date: Fri, 01 Sep 2000 14:22:30 -0400 Message-ID: References: <4.3.2.7.2.20000901093313.00c71720@127.0.0.1> In-Reply-To: <4.3.2.7.2.20000901093313.00c71720@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 OAA06549 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu James S. Tyre wrote: >http://yoyo.org/levine/films/misc/matrix.mpeg > >This may, or may not, explain many things. Yeah--that's what it's all about! __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 15:00:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06774 for dvd-discuss-outgoing; Fri, 1 Sep 2000 15:00:50 -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 PAA06771 for ; Fri, 1 Sep 2000 15:00:47 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id TAA17298 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 19:59:42 +0100 Date: Fri, 1 Sep 2000 19:59:42 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Things I wish had been asked at trial, II Message-ID: <20000901195942.A17204@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39AF179F.AFEB0ED9@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: <39AF179F.AFEB0ED9@mit.edu>; from ravi_n@mit.edu on Thu, Aug 31, 2000 at 10:42:39PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > We should be accurate here. To get the same functionality > in a VCR you would need a multi-system VCR with > video conversion capabilities or an additional multi-system > TV. At http://www.world-import.com/ they're selling VCRs > with video conversion for slightly less than $500. This is > one of the reasons the studios thought of region coding in > the first place. They learned the benefits of "natural region > coding" because of incompatible video standards (NTSC, PAL > and SECAM). > My VCR here in the UK will play NTSC tapes. It's a pretty common feature on European VCR's and you don't need to spend anything like $500 for one. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 16:03:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07454 for dvd-discuss-outgoing; Fri, 1 Sep 2000 16:03:01 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA07451 for ; Fri, 1 Sep 2000 16:03:00 -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 QAA16793; Fri, 1 Sep 2000 16:03:30 -0400 (EDT) Message-ID: <39B00C12.36A7D1AB@mit.edu> Date: Fri, 01 Sep 2000 16:05:38 -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] Things I wish had been asked at trial, II References: <39AF179F.AFEB0ED9@mit.edu> <20000901195942.A17204@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: > > > > > We should be accurate here. To get the same functionality > > in a VCR you would need a multi-system VCR with > > video conversion capabilities or an additional multi-system > > TV. At http://www.world-import.com/ they're selling VCRs > > with video conversion for slightly less than $500. This is > > one of the reasons the studios thought of region coding in > > the first place. They learned the benefits of "natural region > > coding" because of incompatible video standards (NTSC, PAL > > and SECAM). > > > My VCR here in the UK will play NTSC tapes. It's a pretty common feature on > European VCR's and you don't need to spend anything like $500 for one. Do you need a multi-system TV with your VCR? The $500 figure is for VCRs that convert the signal to whatever your TV needs (like you could do with a hypothetical region-free DVD player). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 16:25:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07649 for dvd-discuss-outgoing; Fri, 1 Sep 2000 16:25:27 -0400 Received: from argo.dyndns.org (t-Yku6mE_ZIOFFi9HauVpA@host212-140-202-8.btinteractive.net [212.140.202.8]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA07646 for ; Fri, 1 Sep 2000 16:25:25 -0400 Received: from fork.argo.dyndns.org (IDENT:root@fork.man2.dom [172.16.1.2]) by argo.dyndns.org (8.10.0/8.10.0) with ESMTP id e81KQ0h11345 for ; Fri, 1 Sep 2000 21:26:00 +0100 Received: from localhost.localdomain (IDENT:paul@localhost.localdomain [127.0.0.1]) by fork.argo.dyndns.org (8.10.0/8.10.0) with ESMTP id e81KRMN30505 for ; Fri, 1 Sep 2000 21:27:27 +0100 Message-Id: <200009012027.e81KRMN30505@fork.argo.dyndns.org> X-Mailer: exmh version 2.1.1 10/15/1999 X-Exmh-Isig-CompType: unknown X-Exmh-Isig-Folder: wlan To: dvd-discuss@eon.law.harvard.edu From: Paul Ashton Subject: [dvd-discuss] Re: Rowing the 30,000 other kayaks Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Date: Fri, 01 Sep 2000 21:27:22 +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Possible conduits for DeCSS? From: http://www.mpaa.org/about/ http://messages.yahoo.com/?action=q&board=DIG http://messages.yahoo.com/?action=q&board=DIS http://messages.yahoo.com/?action=q&board=SNE http://messages.yahoo.com/?action=q&board=MGM Can't find Paramount, Twentieth Century Fox, Universal http://messages.yahoo.com/?action=q&board=TWX http://messages.yahoo.com/?action=q&board=AOL Paul From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 16:31:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07792 for dvd-discuss-outgoing; Fri, 1 Sep 2000 16:31:13 -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 QAA07789 for ; Fri, 1 Sep 2000 16:31:11 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id NAA11389 for ; Fri, 1 Sep 2000 13:29:25 -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 smtpdAAAMQaqnw; Fri Sep 1 13:29:20 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 NAA20747 for ; Fri, 1 Sep 2000 13:31:31 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Rowing the 30,000 other kayaks Date: Fri, 1 Sep 2000 09:45:24 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <002901c01431$1ab81ac0$87ce0593@ia.nsc.com> In-Reply-To: <002901c01431$1ab81ac0$87ce0593@ia.nsc.com> MIME-Version: 1.0 Message-Id: <00090109462401.01305@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, 01 Sep 2000, John Zulauf wrote: > Well an idea just occurred of a way in which to demonstrate these kayaks -- > and incidentally irk the P's. CNN (and I would imagine Time, ABC, and other > newsmedia outlets owned by the P's) has a discussion board. Various forms > of DeCSS and DVD-CCA related information could easily be included in posts > to these discussion boards. For example links to DeCSS mirrors could be > included in the message -- in context of course, nothing gratuitous ;-). > Other posts might include the list of all known player keys asking why these > numbers are restrained speech when another apparently random group of > numbers is not. No, you don't post links. You quote passages from CNN's (since deleted) page which *include* links. -- | 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 Sep 1 17:04:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08236 for dvd-discuss-outgoing; Fri, 1 Sep 2000 17:04:26 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08233 for ; Fri, 1 Sep 2000 17:04:25 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA07086 for ; Fri, 1 Sep 2000 16:04:59 -0500 (CDT) Message-ID: <39B019E9.D80996BF@uic.edu> Date: Fri, 01 Sep 2000 16:04:41 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Rowing the 30,000 other kayaks Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Before anyone runs off to litter links to DeCSS all over corporate pages, stop for a minute ... This battle is not over whether DeCSS is linked to by corporate pages ... Having a million links from CNN sites to copies of DeCSS won't make a bit of difference in the REAL battle. This battle is now over whether the CSS algorithm will be available for people to create video tools, like players, video editors, etc, without a restrictive license. The MPAA is successful in that they have people running around making as many copies of DeCSS as possible ... which is: o Meaningless if the use of DeCSS in a commercial product remains illegal. o Counterproductive in that it makes "us" look like criminals. Anyone who wants DeCSS can easily get it now. The real fight is in making it so that people can safely and legally USE the algorithm to break the MPAA monopoly over what features consumers are allowed to have in digital video equipment. If it becomes legal to produce a DVD player that can output unencrypted digital video without Macrovision, then: o The market for analog-only DVD players with degraded video outputs will be decimated. o The industry plans to roll out consumer equipment that uses encryption on the video streams to eliminate fair use of video content will be ruined. o The Macrovision company will be severely harmed. o All the current player manufacturers, bound contractually by the DVD-CCA to never manufacture an DVD that can put out unencrypted, undistorted video will be UNABLE to offer matching product features, and will be severely harmed. This is why the real battle is in the California case where the MPAA is now trying and outlaw the Livid open source DVD player. The 2600 case was just a preliminary exercise done in order to get an overbroad injunction against, in effect, "anything that decyphers CSS. Now they have the ammunition to go after their real target. At this point, thinking of new ways to distribute DeCSS just draws attention away from the real issues. I just want to refocus the attention of those people who are looking for a productive way to spend their energies so that they don't waste their time fighting the last battle while the MPAA stands poised to win the entire war. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 17:09:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08386 for dvd-discuss-outgoing; Fri, 1 Sep 2000 17:09:08 -0400 Received: from dial87.roadrunner.com (sf-du87.cybermesa.com [209.12.75.87]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08382 for ; Fri, 1 Sep 2000 17:09:05 -0400 Received: (from paul@localhost) by dial87.roadrunner.com (8.8.7/8.8.7) id PAA00862 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 15:11:10 -0600 Date: Fri, 1 Sep 2000 15:11:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000901151106.A722@localhost> References: <20000831224038.A23169@lemuria.org> <20000901093743.A24865@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000901093743.A24865@lemuria.org>; from tom@lemuria.org on Fri, Sep 01, 2000 at 09:37:43AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 01, 2000 at 09:37:43AM +0200, Tom Vogt wrote: > Steve Stearns wrote: > > > the point (that kaplan didn't get) is that you cannot draw a sharp line > > > without it being completely arbitrary and the source of all kinds of > > > contradictions. > > > > Well, it wouldn't be the first time that a law was completely > > arbitrary. Take a look at drug control policy for some good examples of > > that. > > aside from the law, there's the interpretation of the law. the law says > "device". kaplan says that code is a device. I say that if code is a > device, then speech is also a device, because there is no hard line between > natural and programming languages. I'm not objecting to your main point, but I have a correction: o (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - This really is worded to be a drag-net. You may be correct that source code should not fit into any of the listed categories, but the judge certainly did decide that "code" is "technology." Peter Junger had an interesting thing to say about using the term "technology" as a smoke-screen to distract from calling programs "speech". I don't know if the appeal is the place to force this issue or not --- "is calling a program 'technology' a bit a verbal acrobatics whose sole effect is to distract from the issue of free speech?" Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 17:14:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08554 for dvd-discuss-outgoing; Fri, 1 Sep 2000 17:14:33 -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 RAA08551 for ; Fri, 1 Sep 2000 17:14:32 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 666E299C86; Fri, 1 Sep 2000 14:15:04 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 2A112938C0 for ; Fri, 1 Sep 2000 14:15:04 -0700 (PDT) Date: Fri, 1 Sep 2000 14:15:03 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Rowing the 30,000 other kayaks In-Reply-To: <39B019E9.D80996BF@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 Fri, 1 Sep 2000, John Schulien wrote: > Before anyone runs off to litter links to DeCSS all over > corporate pages, stop for a minute ... > > This battle is not over whether DeCSS is linked to > by corporate pages ... Having a million links from > CNN sites to copies of DeCSS won't make a bit > of difference in the REAL battle. > > This battle is now over whether the CSS algorithm > will be available for people to create video tools, > like players, video editors, etc, without a restrictive > license. Thank you... This really needs to be said. The MPAA can't stop *DeCSS*, but they don't need to. If DeCSS can't be used in a widely available player, we've lost. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 17:50:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08764 for dvd-discuss-outgoing; Fri, 1 Sep 2000 17:50:34 -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 RAA08761 for ; Fri, 1 Sep 2000 17:50:32 -0400 Message-ID: <20000901215037.7237.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Fri, 01 Sep 2000 14:50:37 PDT Date: Fri, 1 Sep 2000 14:50:37 -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 --- Paul Fenimore wrote: > This really is worded to be a drag-net. You may be correct that > source code should not fit into any of the listed categories, but > the judge certainly did decide that "code" is "technology." Peter > Junger had an interesting thing to say about using the > term "technology" as a smoke-screen to distract from calling > programs "speech". I don't know if the appeal is the place to > force this issue or not --- "is calling a program 'technology' a > bit a verbal acrobatics whose sole effect is to distract from the > issue of free speech?" I think the first argument to make is that 1201(c)(4) tells us that 'technology' was not meant to include speech using computer products. The statue explicitly says it was not meant to diminish the freedom of such speech, and this is much more specifically encompassing of software than the broad catch-all 'technology'. To the extent that 'technology' includes computer programs, it includes copyrighted literary works, which are pure speech. When 2600 posts DeCSS, it does nothing other than publishing copyrighted material which it has a licence to do. Distributing pure speech does not contain any 'nonspeech elements' and is not 'conduct' like burning a draft card that the O'Brien intermediate scrutiny test applies to. An uninstalled computer program simply has no functional apsects at all. Certainly source code that must be configured, compiled, and installed before it can be used has none, and the Bernstein opinion says as much. __________________________________________________ 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 Sep 1 17:55:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09250 for dvd-discuss-outgoing; Fri, 1 Sep 2000 17:55:52 -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 RAA09247 for ; Fri, 1 Sep 2000 17:55:49 -0400 Received: by aero.org id <17091-3>; Fri, 1 Sep 2000 14:56:16 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdUBAa09845; Fri Sep 1 14:56:08 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 14:55:41 -0700 Subject: Re: [dvd-discuss] Rowing the 30,000 other kayaks 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 09/01/2000 02:55:41 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 1 Sep 2000 14:56:12 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Did anybody download the CNN page that had the links? Passing that around might be amusing. "D. C. Sessions" cc: Sent by: Subject: Re: [dvd-discuss] Rowing the 30,000 owner-dvd-discuss@eon.law.h other kayaks arvard.edu 09/01/00 01:33 PM Please respond to dvd-discuss On Fri, 01 Sep 2000, John Zulauf wrote: > Well an idea just occurred of a way in which to demonstrate these kayaks -- > and incidentally irk the P's. CNN (and I would imagine Time, ABC, and other > newsmedia outlets owned by the P's) has a discussion board. Various forms > of DeCSS and DVD-CCA related information could easily be included in posts > to these discussion boards. For example links to DeCSS mirrors could be > included in the message -- in context of course, nothing gratuitous ;-). > Other posts might include the list of all known player keys asking why these > numbers are restrained speech when another apparently random group of > numbers is not. No, you don't post links. You quote passages from CNN's (since deleted) page which *include* links. -- | 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 Sep 1 19:10:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09646 for dvd-discuss-outgoing; Fri, 1 Sep 2000 19:10:39 -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 TAA09643 for ; Fri, 1 Sep 2000 19:10:38 -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 TAA06893 for ; Fri, 1 Sep 2000 19:11:12 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA25051 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 19:11:12 -0400 (EDT) Date: Fri, 1 Sep 2000 19:11:12 -0400 (EDT) Message-Id: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CSS vs. Access Control Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's a sketch of an argument against Kaplan's conclusion that CSS is effective access control, based entirely on the report which Kaplan uses in support of his conclusion that it is (the one I dug out of the library yesterday). It looks to me like, true to form, he has wildly distorted the report, which (AFAICS) works well for the good guys. This looks pretty persuasive to me --- comments? The plaintiffs argued that the CSS technology is "access control" because it was cryptographic in nature, and that DeCSS was circumvention because it "decrypts a work ... without the authority of the copyright owner." This is a somewhat peculiar contention, because the CSS algorithm, cipher and keys embedded in DeCSS are functionally equivalent to those in any licensed DVD player. So, one may imagine a computer on which a licensed DVD player and DeCSS have both been installed, and imagine them both used to provide access to the same DVD. The plaintiffs would claim that the licensed player is controlling access by using the CSS technology, while DeCSS is circumventing that access control. But the implementation of CSS embedded in the licensed player is functionally equivalent to that in DeCSS in all respects. When one provides access, the other would as well, in all cases. [footnote: the licensed DVD player taken as a whole might not provide access due to technical measures other than CSS, such as region coding. But the plaintiffs' own experts have acknowledged in their testimony that these technical mechanisms are entirely separate from CSS, and no part of it.] Clearly, the plaintiffs' claim cannot be based on the contention that DeCSS circumvents CSS access control by providing access where CSS would otherwise prevent it --- CSS itself never does any such thing. Instead, they are asserting that the law gives them the right to authorize (or to decline to authorize) the production of a *device* which incorporates the CSS algorithm, cipher and keys, basing this claim in the law's definition of "effective access control", given in 1201(a)(3)(B). Judge Kaplan concurred. His analysis of this portion of the law is based on the House Judiciary Committee's section-by-section analysis of the bill as passed by the House (which differed in several respects from the law as enacted, but preserves the basic approach of 1201). However, his analysis is based on selectively quoting the report, which, taken in whole and with its contents viewed in context, leads to wholly different conclusions. Judge Kaplan correctly quotes the report as stating that: .... The practical, common-sense approach taken by H.R. 2281 is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work ... then the "effectiveness" test is met, and the prohibitions of the statute are applicable. This test, which focuses on the function performed by the technology, provides a sufficient basis for clear interpretation. (p. 10) However, the quote is taken out of context; Kaplan never considers the report's analysis of what "the defined ways to control access to a work" are. And there is a reason for that --- the very first sentence of the report's analysis of subssection 1201(a) defines the scope of "effective access control" in a manner very much at odds with his analysis: Subsection (a) of new section 1201 applies when a *person who is not authorized* to have access to a work seeks to gain access by circumventing a technological measure put in place by the copyright owner that effectively controls access to the work. (p. 5, emphasis added) Here we see a very different view of the scope of subsection 1201(a) --- that it is aimed at technical measures which prevent a person from gaining access to a work which *that person* is not authorized to view. This view of the law is clarified further in a subsequent section which emphasizes again that the focus of this section is on devices which may, "in the ordinary course of their operation" prevent *persons* who have not been specifically authorized from accessing a work, and discusses how that might be accomplished: ... an access control technology under section 1201(a) would not necessarily prevent access to a work altogether, but could be designed to allow access during a limited time period, such as during a period of library borrowing. Technological measures are also essential to a distribution strategy that allows a consumer to purchase a copy of a single article from an electronic database, rather than having to pay more for a subscription to a journal containing many articles the consumer does not want. Again, the focus is on measures which perform affirmative checks as to whether a *person* has been authorized to view a work, and which have the *effect* of denying access to unauthorized persons. That is "the defined way of controlling access to a work", and CSS clearly is not within the scope of this definition. The CSS technology is not an effective access control. Both the plaintiffs and Judge Kaplan have advanced other arguments as to why CSS should be considered effective access control. Both are groundless. The plaintiffs have asserted, in hearings, pleadings, and briefs, that since CSS is "an encryption technology", it deserves protection as access control under 1201(a). But the very report cited as an authority by Judge Kaplan decries any such view of the bill. It says: Throughout the legislative process, the phrase "technological measure" ... has been treated in H.R. 2281 in terms of the function such a measure would perform, rather than the specific technology to be used or the means of developing it. (p. 10) ... Any effort to ... define in terms of particular technologies what constitutes an "effective" measure, could inadvertently deprive legal protection to some of the copy or access control technologies that are or will be in widespread use ... (p. 11). and more besides. In any case, it is common knowledge (described in any elementary textbook on the subject) that cryptographic techniques have numerous applications which have nothing at all to do with access control; for example, they may be used to allow a third party to verify that a public document such as a press release was actually written by the purported author, and not an impostor. [footnote: Microsoft uses these technologies as part of its "Authenticode" system, to verify the origin of computer code embedded in web pages] The mere presence of some cryptographic technique or algorithm in CSS cannot be taken, by itself, as any indication that access control is happening. For that, one needs to look, as the Judiciary Committee has indicated, at how that technology functions, and CSS does not function as an access control. So much for the plaintiffs. Judge Kaplan brought an argument of his own to bear: 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 or a process or a treatment, with the authority of the copyright owner, to gain access to a work." 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. This is incorrect in two respects. First off, [confining ourselves to player keys --- rest easily dealt with] Judge Kaplan is factually wrong when he asserts that the only lawful means of gaining access to a player key are entering into a licensing agreement or buying a licensed player. Reverse engineering is also a legal means of gaining access to such a key, as confirmed in Sega v. Accolade from the 9th circuit, which is a precedent which the law was deliberately worded to preserve, as confirmed by the Judiciary Committee's section-by-section analysis (once again, the very same report cited by Judge Kaplan as an authority) on page 14. But there is a more serious error. Kaplan bases his claim that CSS "effectively controls access" because it is impossible to gain access to a CSS-protected work unless the CSS technology is functioning properly. But by that standard, one might just as well argue that the DVD player's power supply is an access control --- it is impossible to gain access to a work unless that is functioning as well. What makes an access control, as the committee report makes plain, is that it may block access *when operating normally*, and in that case, that the criterion it uses has to do with whether the *viewer* has obtained the authority of the copyright owner *to access a particular work*. CSS never blocks access when operating normally; once again, it does not effectively control access to a work as that term is defined in the law. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 20:15:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09879 for dvd-discuss-outgoing; Fri, 1 Sep 2000 20:15:13 -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 UAA09876 for ; Fri, 1 Sep 2000 20:15:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA18920 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 20:25:42 -0400 Date: Fri, 1 Sep 2000 20:25:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. Message-ID: <20000901202536.C18143@eldritchpress.org> References: <20000830164421.A16417@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Fri, Sep 01, 2000 at 02:25:31PM +0300 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 01, 2000 at 02:25:31PM +0300, Sampo A Syreeni wrote: > On Wed, 30 Aug 2000, Eric Eldred wrote: > > >But aren't they works that cannot be distributed--because > >of some law or regulation OTHER than copyright law--and > >isn't DeCSS an example of a work that copyright law alone > >allows to be copyrighted but not distributed? Are there > >other examples of this phenomenon? > > No, since DMCA isn't copyright. It's paracopyright. Makes more than a few > people wanna puke. What is "paracopyright"? 1201 is a section of Title 17, the U.S. Code that covers copyright. It is intended as an implementation of the WTO treaty governing copyright of digital media, isn't it?. If you are saying that the DVD-CCA is unlawfully being granted by copyright law from Congress the right to license DVD players and the like, you are correct. However, isn't it still the COPYRIGHT LAW that is doing this? And if so how can copyright law itself restrict this right? Copying, yes, access control no. So the argument needs to be made that Congress extending this right is acting unconstitutionally. Constitution limits term and rights "to promote the progress of science and the useful arts," by ENCOURAGING publication. How does prohibiting publication of ideas (DeCSS) do this? But I may be wrong. Please somebody tell me of another instance where copyright law itself allows the holder of one copyright to restrict the publication rights of another publisher whose work does not copy or otherwise infringe on the first's right? And if the argument is that this is not copyright law rather commerce law, then where is the authority in the Copyright Clause for this? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 20:45:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10062 for dvd-discuss-outgoing; Fri, 1 Sep 2000 20:45:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA10058 for ; Fri, 1 Sep 2000 20:44:57 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA18980 for dvd-discuss@eon.law.harvard.edu; Fri, 1 Sep 2000 20:55:38 -0400 Date: Fri, 1 Sep 2000 20:55:32 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000901205532.D18143@eldritchpress.org> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200009012311.TAA25051@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Sep 01, 2000 at 07:11:12PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 01, 2000 at 07:11:12PM -0400, Robert S. Thau wrote: > Here's a sketch of an argument against Kaplan's conclusion that CSS is > effective access control, based entirely on the report which Kaplan > uses in support of his conclusion that it is (the one I dug out of > the library yesterday). > > It looks to me like, true to form, he has wildly distorted the report, > which (AFAICS) works well for the good guys. > > This looks pretty persuasive to me --- comments? > > > > > The plaintiffs argued that the CSS technology is "access control" > because it was cryptographic in nature, and that DeCSS was > circumvention because it "decrypts a work ... without the authority of > the copyright owner." This is a somewhat peculiar contention, because > the CSS algorithm, cipher and keys embedded in DeCSS are functionally > equivalent to those in any licensed DVD player. So, one may imagine a > computer on which a licensed DVD player and DeCSS have both been > installed, and imagine them both used to provide access to the same > DVD. The plaintiffs would claim that the licensed player is > controlling access by using the CSS technology, while DeCSS is > circumventing that access control. But the implementation of CSS > embedded in the licensed player is functionally equivalent to that in > DeCSS in all respects. When one provides access, the other would as > well, in all cases. > > [footnote: the licensed DVD player taken as a whole might not > provide access due to technical measures other than CSS, such as > region coding. But the plaintiffs' own experts have acknowledged > in their testimony that these technical mechanisms are entirely > separate from CSS, and no part of it.] > > Clearly, the plaintiffs' claim cannot be based on the contention that > DeCSS circumvents CSS access control by providing access where CSS > would otherwise prevent it --- CSS itself never does any such thing. > Instead, they are asserting that the law gives them the right to > authorize (or to decline to authorize) the production of a *device* > which incorporates the CSS algorithm, cipher and keys, basing this > claim in the law's definition of "effective access control", given in > 1201(a)(3)(B). > > Judge Kaplan concurred. His analysis of this portion of the law is > based on the House Judiciary Committee's section-by-section analysis > of the bill as passed by the House (which differed in several respects > from the law as enacted, but preserves the basic approach of 1201). > However, his analysis is based on selectively quoting the report, > which, taken in whole and with its contents viewed in context, leads > to wholly different conclusions. > > Judge Kaplan correctly quotes the report as stating that: > > .... The practical, common-sense approach taken by H.R. 2281 is > that if, in the ordinary course of its operation, a technology > actually works in the defined ways to control access to a work > ... then the "effectiveness" test is met, and the prohibitions of > the statute are applicable. This test, which focuses on the > function performed by the technology, provides a sufficient basis > for clear interpretation. (p. 10) > > However, the quote is taken out of context; Kaplan never considers the > report's analysis of what "the defined ways to control access to a > work" are. And there is a reason for that --- the very first sentence > of the report's analysis of subssection 1201(a) defines the scope of > "effective access control" in a manner very much at odds with his > analysis: > > Subsection (a) of new section 1201 applies when a *person who is > not authorized* to have access to a work seeks to gain access by > circumventing a technological measure put in place by the copyright > owner that effectively controls access to the work. (p. 5, emphasis > added) > > Here we see a very different view of the scope of subsection 1201(a) > --- that it is aimed at technical measures which prevent a person from > gaining access to a work which *that person* is not authorized to > view. This view of the law is clarified further in a subsequent > section which emphasizes again that the focus of this section is on > devices which may, "in the ordinary course of their operation" > prevent *persons* who have not been specifically authorized from > accessing a work, and discusses how that might be accomplished: > > ... an access control technology under section 1201(a) would not > necessarily prevent access to a work altogether, but could be > designed to allow access during a limited time period, such as > during a period of library borrowing. Technological measures are > also essential to a distribution strategy that allows a consumer to > purchase a copy of a single article from an electronic database, > rather than having to pay more for a subscription to a journal > containing many articles the consumer does not want. > > Again, the focus is on measures which perform affirmative checks as to > whether a *person* has been authorized to view a work, and which have > the *effect* of denying access to unauthorized persons. That is "the > defined way of controlling access to a work", and CSS clearly is not > within the scope of this definition. The CSS technology is not an > effective access control. > > Both the plaintiffs and Judge Kaplan have advanced other arguments as > to why CSS should be considered effective access control. Both are > groundless. > > The plaintiffs have asserted, in hearings, pleadings, and briefs, that > since CSS is "an encryption technology", it deserves protection as > access control under 1201(a). But the very report cited as an > authority by Judge Kaplan decries any such view of the bill. It says: > > Throughout the legislative process, the phrase "technological > measure" ... has been treated in H.R. 2281 in terms of the function > such a measure would perform, rather than the specific technology to > be used or the means of developing it. (p. 10) ... > > Any effort to ... define in terms of particular technologies what > constitutes an "effective" measure, could inadvertently deprive > legal protection to some of the copy or access control technologies > that are or will be in widespread use ... (p. 11). > > and more besides. > > In any case, it is common knowledge (described in any elementary > textbook on the subject) that cryptographic techniques have numerous > applications which have nothing at all to do with access control; for > example, they may be used to allow a third party to verify that a > public document such as a press release was actually written by the > purported author, and not an impostor. > > [footnote: Microsoft uses these technologies as part of its > "Authenticode" system, to verify the origin of computer code embedded > in web pages] > > The mere presence of some cryptographic technique or algorithm in CSS > cannot be taken, by itself, as any indication that access control is > happening. For that, one needs to look, as the Judiciary Committee > has indicated, at how that technology functions, and CSS does not > function as an access control. > > So much for the plaintiffs. Judge Kaplan brought an argument of his > own to bear: > > 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 or a process or a treatment, with the authority of the > copyright owner, to gain access to a work." 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. > > This is incorrect in two respects. First off, [confining ourselves to > player keys --- rest easily dealt with] Judge Kaplan is factually > wrong when he asserts that the only lawful means of gaining access to > a player key are entering into a licensing agreement or buying a > licensed player. Reverse engineering is also a legal means of gaining > access to such a key, as confirmed in Sega v. Accolade from the 9th > circuit, which is a precedent which the law was deliberately worded to > preserve, as confirmed by the Judiciary Committee's section-by-section > analysis (once again, the very same report cited by Judge Kaplan as an > authority) on page 14. > > But there is a more serious error. Kaplan bases his claim that CSS > "effectively controls access" because it is impossible to gain access > to a CSS-protected work unless the CSS technology is functioning > properly. But by that standard, one might just as well argue that the > DVD player's power supply is an access control --- it is impossible to > gain access to a work unless that is functioning as well. What makes > an access control, as the committee report makes plain, is that it may > block access *when operating normally*, and in that case, that the > criterion it uses has to do with whether the *viewer* has obtained the > authority of the copyright owner *to access a particular work*. CSS > never blocks access when operating normally; once again, it does not > effectively control access to a work as that term is defined in the > law. I think it is really excellent, and even this dumbbell is beginning to understand you. So can we then go on to say that the user of DeCSS "by purchasing a DVD player or drive containing the keys pursuant to such a license," is thereby JUST AS lawfully gaining access, as the person who is "entering into a license with the DVD CCA under authority granted by the copyright owners"? Because if so then he is explicitly recognizing the right of first sale which defendants argued--or the equal weight which the law was intended to give to reverse engineering. Of course, if CSS is not really access control then it doesn't make any difference about how it is licensed or authorized, by reverse engineering or otherwise. The PERSON who uses a technology is, however, authorized under the law, no matter if CSS or DeCSS are called "access control" or "circumvention". After all, the person using CSS or DeCSS need nothing nothing about all this, only if the disc is counterfeit or not--and CSS doesn't help there. The question, though, I believe, still exists as to whether or not the statute is self-contradictory or overbroad. Any ideas about that? What can you make of the final conference report? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 21:03:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10230 for dvd-discuss-outgoing; Fri, 1 Sep 2000 21:03:51 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10227 for ; Fri, 1 Sep 2000 21:03:50 -0400 Received: from ip1.bedford9.ma.pub-ip.psi.net ([38.32.79.1]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13V1jM-00003S-00 for dvd-discuss@eon.law.harvard.edu; Fri, 01 Sep 2000 21:04:25 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos and The Matrix Date: Fri, 01 Sep 2000 21:06:43 -0400 Message-ID: References: <4.3.2.7.2.20000901093313.00c71720@127.0.0.1> 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 VAA10228 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >James S. Tyre wrote: > >>http://yoyo.org/levine/films/misc/matrix.mpeg >> >>This may, or may not, explain many things. > >Yeah--that's what it's all about! All farting aside, to elaborate-- The demo here is fair use for comment and parody. The larger point is: do their works exist in our common info-space? Or do we need to tolerate a special world--a Hollyworld--where no criticism ever invades; where no one will ever, ever, ever fart? If Valenti and crew are too fragile to take this joke, then perhaps they're just too fragile. And if their production companies are too rigid to allow their products to become part of the miasma of the digital cosmos, then their arteries have already collapsed. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 22:26:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10468 for dvd-discuss-outgoing; Fri, 1 Sep 2000 22:26:25 -0400 Received: from imo-d07.mx.aol.com (imo-d07.mx.aol.com [205.188.157.39]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10465 for ; Fri, 1 Sep 2000 22:26:25 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d07.mx.aol.com (mail_out_v28.15.) id x.f9.2679c1d (4369) for ; Fri, 1 Sep 2000 22:26:51 -0400 (EDT) Message-ID: Date: Fri, 1 Sep 2000 22:26:50 EDT 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" 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 9/1/00 4:09:06 AM Eastern Daylight Time, tom@lemuria.org writes: << programs are tools. you can use a hammer to kill someone, but usually you use it to drive nails into walls. I own several swords. swords are tools made exclusively to kill people. they're still not illegal, because they have other uses, too - looking good over the fireplace, for example. >> My point exactly. programs are tools. Not speech, tools. Your code wouldn't be illegal for quite a few reasons. But, to give an example from my home state, owning a screwdriver is illegal if it was used in the commission of a breaking and entering. This law could be extended to include illegalizing certain programs if they exist on a computer thought to have been used in an attack. I don't see why source code should be immune to a law like that. Code like that should be illegalized. Tools can be illegal. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 23:12:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10755 for dvd-discuss-outgoing; Fri, 1 Sep 2000 23:12:15 -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 XAA10752 for ; Fri, 1 Sep 2000 23:12:14 -0400 Received: from 216-164-132-94.s348.tnt2.lnhva.md.dialup.rcn.com ([216.164.132.94]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13V3jY-0006Lp-00 for dvd-discuss@eon.law.harvard.edu; Fri, 01 Sep 2000 23:12:47 -0400 Date: Fri, 01 Sep 2000 23:11:51 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 Fri, 1 Sep 2000, Consilgere@cs.com wrote: > Date: Fri, 1 Sep 2000 22:26:50 EDT > To: dvd-discuss@eon.law.harvard.edu > From: Consilgere@cs.com > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] code as speech > > In a message dated 9/1/00 4:09:06 AM Eastern Daylight Time, > tom@lemuria.org > writes: > > << programs are tools. you can use a hammer to kill someone, but usually > you > use it to drive nails into walls. I own several swords. swords are tools > made exclusively to kill people. they're still not illegal, because they > have other uses, too - looking good over the fireplace, for example. >> > > My point exactly. programs are tools. Not speech, tools. Your code > wouldn't be illegal for quite a few reasons. But, to give an example > from my > home state, owning a screwdriver is illegal if it was used in the > commission > of a breaking and entering. This law could be extended to include > illegalizing certain programs if they exist on a computer thought to have > > been used in an attack. I don't see why source code should be immune to > a > law like that. Code like that should be illegalized. Tools can be > illegal. > Programs incorporate both functional (tool-like) and expressive (speech-like) aspects. One of the clearest exmaples of this is that software is protected under the copyright laws, (and, I must admit, secondarily under patent regimes, though --hopefully-- only to a very limited extent.) It has been recognized that, under certain circumstances, a screwdriver could be used as a burglury tool, or as a weapon. In certain cases, I suppose that this possesion could be turned in to a criminal charge, but mere possession of a screwdriver does not a crime make. For the sake of example, the Arizona statute reads as follows: 13-1505. Possession of burglary tools; classification A. A person commits possession of burglary tools by possessing any explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary as defined in sections 13-1506, 13-1507 and 13-1508 and intending to use or permit the use of such an item in the commission of a burglary. B. Possession of burglary tools is a class 6 felony. Intention is the operative here. Obviously, the Linux operating system has several applications and other tools that could be used in "theft of services or "computer intrusion". Yet these programs have other overiding purposes. Now, if one is fond of inculcating a police state, one could endeavor to make unlicensed posession of a debugger a criminal offense, but that's why Eric S. Raymond is fond of guns. (see http://www.linux.com/interviews/19990518/8/) Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 1 23:29:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10958 for dvd-discuss-outgoing; Fri, 1 Sep 2000 23:29:37 -0400 Received: from imo-r01.mx.aol.com (imo-r01.mx.aol.com [152.163.225.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10955 for ; Fri, 1 Sep 2000 23:29:36 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r01.mx.aol.com (mail_out_v28.15.) id x.5b.ad3d136 (3871) for ; Fri, 1 Sep 2000 23:29:38 -0400 (EDT) Message-ID: <5b.ad3d136.26e1ce20@cs.com> Date: Fri, 1 Sep 2000 23:29:36 EDT 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" 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 9/1/00 4:09:17 AM Eastern Daylight Time, tom@lemuria.org writes: << so that means an english-language essay describing DeCSS (in enough detail to implement it) is illegal? >> Like I've said to other people, a competent software engineer can tell the difference between a plaintext description of a program and an attempted implementation of a program. A judge with no qualifications to do anything with any sort of technology beyond a microwave can't. And as for your assertion that "source never is dangerous", would you say the same about guns? drugs? cars? They're all not dangerous unless used improperly, and there's government regulation involved in all of them. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 00:00:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11111 for dvd-discuss-outgoing; Sat, 2 Sep 2000 00:00:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA11108 for ; Fri, 1 Sep 2000 23:59:59 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA19305 for dvd-discuss@eon.law.harvard.edu; Sat, 2 Sep 2000 00:10:28 -0400 Date: Sat, 2 Sep 2000 00:10:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Protecting works not yet created Message-ID: <20000902001023.A19263@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 Patterson notes that Feist in 1991 finally overruled lower federal court rulings protecting "sweat-of-the-brow" copyrights. He adds something interesting: http://www.lawsch.uga.edu/~jipl/vol1/patterson.html#NOTE3 3 Permanent injunctions to protect works not yet created are judicial copyrights in the tradition of the sweat-of-the-brow copyrights, granted without any regard for either constitutional restraints or statutory requirements. See, e.g., Pacific & S. Co. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983) (holding videotaping of news broadcasts for sale to subjects of news reports does not constitute fair use), aff'd in part and rev'd in part, 744 F.2d 1490 (11th Cir. 1984), on remand, 618 F. Supp. 469 (N.D. Ga.), aff'd, 792 F.2d 113 (11th Cir. 1985) Does Universal v Corley grant a permanent injunction "to protect works not yet created"? What constitutional restraints has this lower court overlooked in attempting to implement 1201(a) and 1201(b)? From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 02:36:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA14186 for dvd-discuss-outgoing; Sat, 2 Sep 2000 02:36:25 -0400 Received: from web113.yahoomail.com (web113.yahoomail.com [205.180.60.84]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA14170 for ; Sat, 2 Sep 2000 02:36:24 -0400 Received: (qmail 17552 invoked by uid 60001); 2 Sep 2000 06:36:58 -0000 Message-ID: <20000902063658.17551.qmail@web113.yahoomail.com> Received: from [128.122.253.144] by web113.yahoomail.com; Fri, 01 Sep 2000 23:36:58 PDT Date: Fri, 1 Sep 2000 23:36:58 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] NYT 9/2 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 Is Litigation The Best Way To Tame New Technology? http://www.nytimes.com/library/tech/yr/mo/biztech/articles/02napster.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 Sep 2 03:17:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA15740 for dvd-discuss-outgoing; Sat, 2 Sep 2000 03:17:44 -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 DAA15737 for ; Sat, 2 Sep 2000 03:17:42 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id AAA27494 for ; Sat, 2 Sep 2000 00:15:57 -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 smtpdAAAk6ayM1; Sat Sep 2 00:15:46 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 AAA21830 for ; Sat, 2 Sep 2000 00:17:32 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Fri, 1 Sep 2000 16:47:31 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000831224038.A23169@lemuria.org> <20000901093743.A24865@lemuria.org> <20000901151106.A722@localhost> In-Reply-To: <20000901151106.A722@localhost> MIME-Version: 1.0 Message-Id: <00090116493900.01530@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, 01 Sep 2000, Paul Fenimore wrote: > This really is worded to be a drag-net. You may be correct that source > code should not fit into any of the listed categories, but the judge > certainly did decide that "code" is "technology." Peter Junger had an > interesting thing to say about using the term "technology" as a > smoke-screen to distract from calling programs "speech". I don't know > if the appeal is the place to force this issue or not --- "is calling > a program 'technology' a bit a verbal acrobatics whose sole effect is > to distract from the issue of free speech?" As I pointed out, 'technology' is for all practical purposes synonomous with 'knowledge'. One refers to a way of doing things, and the other refers to knowing _how_ to do them; you can't ban technology without banning knowledge. Which strikes so directly at the First Amendment that there's no way to dance around the conflict. -- | 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 Sep 2 03:25:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA15954 for dvd-discuss-outgoing; Sat, 2 Sep 2000 03:25:57 -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 DAA15951 for ; Sat, 2 Sep 2000 03:25:56 -0400 Received: from swbell.net ([64.216.211.192]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0900DSL0H4K8@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sat, 2 Sep 2000 02:22:17 -0500 (CDT) Date: Sat, 02 Sep 2000 02:14:17 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B0A8C9.52C247B3@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: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > Here's a sketch of an argument against Kaplan's conclusion that CSS is > effective access control, based entirely on the report which Kaplan > uses in support of his conclusion that it is (the one I dug out of > the library yesterday). > > It looks to me like, true to form, he has wildly distorted the report, > which (AFAICS) works well for the good guys. > > This looks pretty persuasive to me --- comments? > > The plaintiffs argued that the CSS technology is "access control" > because it was cryptographic in nature, and that DeCSS was > circumvention because it "decrypts a work ... without the authority of > the copyright owner." This is a somewhat peculiar contention, because > the CSS algorithm, cipher and keys embedded in DeCSS are functionally > equivalent to those in any licensed DVD player. So, one may imagine a > computer on which a licensed DVD player and DeCSS have both been > installed, and imagine them both used to provide access to the same > DVD. The plaintiffs would claim that the licensed player is > controlling access by using the CSS technology, while DeCSS is > circumventing that access control. But the implementation of CSS > embedded in the licensed player is functionally equivalent to that in > DeCSS in all respects. When one provides access, the other would as > well, in all cases. > > [footnote: the licensed DVD player taken as a whole might not > provide access due to technical measures other than CSS, such as > region coding. But the plaintiffs' own experts have acknowledged > in their testimony that these technical mechanisms are entirely > separate from CSS, and no part of it.] > > Clearly, the plaintiffs' claim cannot be based on the contention that > DeCSS circumvents CSS access control by providing access where CSS > would otherwise prevent it --- CSS itself never does any such thing. > Instead, they are asserting that the law gives them the right to > authorize (or to decline to authorize) the production of a *device* > which incorporates the CSS algorithm, cipher and keys, basing this > claim in the law's definition of "effective access control", given in > 1201(a)(3)(B). > > Judge Kaplan concurred. His analysis of this portion of the law is > based on the House Judiciary Committee's section-by-section analysis > of the bill as passed by the House (which differed in several respects > from the law as enacted, but preserves the basic approach of 1201). > However, his analysis is based on selectively quoting the report, > which, taken in whole and with its contents viewed in context, leads > to wholly different conclusions. > > Judge Kaplan correctly quotes the report as stating that: > > .... The practical, common-sense approach taken by H.R. 2281 is > that if, in the ordinary course of its operation, a technology > actually works in the defined ways to control access to a work > ... then the "effectiveness" test is met, and the prohibitions of > the statute are applicable. This test, which focuses on the > function performed by the technology, provides a sufficient basis > for clear interpretation. (p. 10) > > However, the quote is taken out of context; Kaplan never considers the > report's analysis of what "the defined ways to control access to a > work" are. And there is a reason for that --- the very first sentence > of the report's analysis of subssection 1201(a) defines the scope of > "effective access control" in a manner very much at odds with his > analysis: > > Subsection (a) of new section 1201 applies when a *person who is > not authorized* to have access to a work seeks to gain access by > circumventing a technological measure put in place by the copyright > owner that effectively controls access to the work. (p. 5, emphasis > added) > > Here we see a very different view of the scope of subsection 1201(a) > --- that it is aimed at technical measures which prevent a person from > gaining access to a work which *that person* is not authorized to > view. This view of the law is clarified further in a subsequent > section which emphasizes again that the focus of this section is on > devices which may, "in the ordinary course of their operation" > prevent *persons* who have not been specifically authorized from > accessing a work, and discusses how that might be accomplished: > > ... an access control technology under section 1201(a) would not > necessarily prevent access to a work altogether, but could be > designed to allow access during a limited time period, such as > during a period of library borrowing. Technological measures are > also essential to a distribution strategy that allows a consumer to > purchase a copy of a single article from an electronic database, > rather than having to pay more for a subscription to a journal > containing many articles the consumer does not want. > Also note how authorization occurs with distribution. > Again, the focus is on measures which perform affirmative checks as to > whether a *person* has been authorized to view a work, and which have > the *effect* of denying access to unauthorized persons. That is "the > defined way of controlling access to a work", and CSS clearly is not > within the scope of this definition. The CSS technology is not an > effective access control. > > Both the plaintiffs and Judge Kaplan have advanced other arguments as > to why CSS should be considered effective access control. Both are > groundless. > > The plaintiffs have asserted, in hearings, pleadings, and briefs, that > since CSS is "an encryption technology", it deserves protection as > access control under 1201(a). But the very report cited as an > authority by Judge Kaplan decries any such view of the bill. It says: > > Throughout the legislative process, the phrase "technological > measure" ... has been treated in H.R. 2281 in terms of the function > such a measure would perform, rather than the specific technology to > be used or the means of developing it. (p. 10) ... > > Any effort to ... define in terms of particular technologies what > constitutes an "effective" measure, could inadvertently deprive > legal protection to some of the copy or access control technologies > that are or will be in widespread use ... (p. 11). > > and more besides. > > In any case, it is common knowledge (described in any elementary > textbook on the subject) that cryptographic techniques have numerous > applications which have nothing at all to do with access control; for > example, they may be used to allow a third party to verify that a > public document such as a press release was actually written by the > purported author, and not an impostor. > > [footnote: Microsoft uses these technologies as part of its > "Authenticode" system, to verify the origin of computer code embedded > in web pages] > > The mere presence of some cryptographic technique or algorithm in CSS > cannot be taken, by itself, as any indication that access control is > happening. For that, one needs to look, as the Judiciary Committee > has indicated, at how that technology functions, and CSS does not > function as an access control. > > So much for the plaintiffs. Judge Kaplan brought an argument of his > own to bear: > > 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 or a process or a treatment, with the authority of the > copyright owner, to gain access to a work." 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. > > This is incorrect in two respects. First off, [confining ourselves to > player keys --- rest easily dealt with] Judge Kaplan is factually > wrong when he asserts that the only lawful means of gaining access to > a player key are entering into a licensing agreement or buying a > licensed player. Reverse engineering is also a legal means of gaining > access to such a key, as confirmed in Sega v. Accolade from the 9th > circuit, which is a precedent which the law was deliberately worded to > preserve, as confirmed by the Judiciary Committee's section-by-section > analysis (once again, the very same report cited by Judge Kaplan as an > authority) on page 14. > > But there is a more serious error. Kaplan bases his claim that CSS > "effectively controls access" because it is impossible to gain access > to a CSS-protected work unless the CSS technology is functioning > properly. But by that standard, one might just as well argue that the > DVD player's power supply is an access control --- it is impossible to > gain access to a work unless that is functioning as well. What makes > an access control, as the committee report makes plain, is that it may > block access *when operating normally*, and in that case, that the > criterion it uses has to do with whether the *viewer* has obtained the > authority of the copyright owner *to access a particular work*. CSS > never blocks access when operating normally; once again, it does not > effectively control access to a work as that term is defined in the > law. Your argument against Kaplan's conclusion seems to agree with Senator Ashcroft: >From [page: S4890] In discussing the anti-circumvention portion of the legislation, I think it is worth emphasizing that I could agree to support the bill's approach of outlawing certain devices because I was repeatedly assured that the device prohibitions in 1201(a)(2) and 1201(b) are aimed at so-called `black boxes' and not at legitimate consumer electronics and computer products that have substantial non-infringing uses. I specifically worked for and achieved changes to the bill to make sure that no court would misinterpret this bill as outlawing legitimate consumer electronics devices or computer hardware. As a result, neither section 1201(a)(2) nor section 1201(b) should be read as outlawing any device with substantial non-infringing uses, as per the tests provided in those sections. If history is a guide, however, someone may yet try to use this bill as a basis for initiating litigation to stop legitimate new products from coming to market. By proposing the addition of section 1201(d)(2) and (3), I have sought to make clear that any such effort to use the courts to block the introduction of new technology should be bound to fail. It's amazing how Senator Ashcroft predicted this battle of the MPAA to control the player market by preventing the development and bringing to market a new product -- a Linux DVD player. And even in its original form as a Windows program, it was a new product. I don't think Congress intended to prevent a new player from coming to market even though there is a "licensed and authorized" player available on that OS. I seem to remember Kaplan making a big deal that DeCSS was originally a Windows program and having doubts that it had anything to do with Linux. As such, it was less legitimate in his opinion. How I read Congress' intention, so what! Taking a lesson from the MPAA in their "piracy will run rampant and destroy the American way of life" theme because of DeCSS (even though there is no proof), I thought I would start some new fears of what "may happen". Control of the player market could lead to a phase out of the current generation of players to new players where you are only authorized to view a DVD if you pay a fee every time you view the DVD. A nasty bait and switch tactic. As the older models break and well before the market is saturated with players like VCRs, you will only be able to purchase the newer type. Suddenly you must start paying to view the DVDs you thought you already purchased. If this happens, then CSS will be part of an access control that can block access when operating normally. You haven't finished paying to watch those DVDs like you thought. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 03:50:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA16189 for dvd-discuss-outgoing; Sat, 2 Sep 2000 03:50:39 -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 DAA16186 for ; Sat, 2 Sep 2000 03:50:36 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id IAA19403 for dvd-discuss@eon.law.harvard.edu; Sat, 2 Sep 2000 08:50:17 +0100 Date: Sat, 2 Sep 2000 08:50:16 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Things I wish had been asked at trial, II Message-ID: <20000902085016.A17783@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39AF179F.AFEB0ED9@mit.edu> <20000901195942.A17204@ramtop.demon.co.uk> <39B00C12.36A7D1AB@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: <39B00C12.36A7D1AB@mit.edu>; from ravi_n@mit.edu on Fri, Sep 01, 2000 at 04:05:38PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 01, 2000 at 04:05:38PM -0400, Ravi Nanavati wrote: > Phil Harrison wrote: > > > > > My VCR here in the UK will play NTSC tapes. It's a pretty common feature on > > European VCR's and you don't need to spend anything like $500 for one. > > Do you need a multi-system TV with your VCR? The $500 figure > is for VCRs that convert the signal to whatever your TV needs > (like you could do with a hypothetical region-free DVD player). > I had to dig out the instruction manuals to answer this. Bear in mind that I didn't particularly look for these features when I purchased my VCR or TV. My TV will show pictures encoded inn PAL, NTSC 3.58 and NTSC 4.43 on the SCART inputs. I'm not sure if it will play PAL60. My VCR will plat NTSC tapes and will output in either NTSC 4.43 or PAL60 (which is PAL but with 525 lines instead of the normal 625 lines). So clearly both my TV and VCR were designed with the idea that I might want to view NTSC video tapes. Admittedly these were reasonably good quality items but I bought them a few years ago. I'll see if I can find a low cost TV and VCR that would be able to play NTSC tapes if you like. -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 04:01:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA16336 for dvd-discuss-outgoing; Sat, 2 Sep 2000 04:01:09 -0400 Received: from rgate4.ricochet.net ([204.179.143.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA16333 for ; Sat, 2 Sep 2000 04:01:08 -0400 Received: from shannon (mg-206253202-203.ricochet.net [206.253.202.203]) by rgate4.ricochet.net (8.9.3/8.9.3) with SMTP id DAA12687 for ; Sat, 2 Sep 2000 03:04:53 -0500 (CDT) From: "John Dempsey" To: Subject: [dvd-discuss] Winning and losing Date: Sat, 2 Sep 2000 01:04:41 -0700 Message-ID: <000001c014b4$72fee4b0$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: 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 really needs to be said. The MPAA can't stop *DeCSS*, but they don't > need to. If DeCSS can't be used in a widely available player, we've lost. I consider it very plausable that deCSS will be in a player--perhaps a pirate's toolkit app--illegal but readily available. AOL killed Gnutella but it's thriving. RIAA will probably kill Napster but the Napster protocol (related in name and function only) has about twenty variant servers so far. It is a blow to freedom when application of reverse-engineered knowledge is illegal. It's a much bigger blow the day it's impossible. And *that* day is not on the horizon. All this court stuff is just bailing water for these industries no matter who wins. They lost and we won the day the key leaked. It's all downhill from there. So turn that frown upside down! Rejoice! John From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 04:06:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA16473 for dvd-discuss-outgoing; Sat, 2 Sep 2000 04:06:18 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA16470 for ; Sat, 2 Sep 2000 04:06:05 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id EAA19534 for dvd-discuss@eon.law.harvard.edu; Sat, 2 Sep 2000 04:16:49 -0400 Date: Sat, 2 Sep 2000 04:16:43 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Kinko's Message-ID: <20000902041643.F19263@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 Patterson at http://www.lawsch.uga.edu/~jipl/vol1/patterson.html points out a couple of areas in which the 1976 copyright law was changed in such a way as to be unconstitutional, and notes that lower courts have often ruled in a way so as to try to balance the competing economic interests of parties, rather than follow the principles of the Constitution. In particular, the 1976 act codified fair use for the first time. His discussion notes that the Constitution provides general policy for Congress to establish Copyright, and provides for a balance of the public domain with the rights of authors. We can argue that the DMCA (at least as interpreted by Kaplan) violates all four of the general principles Patterson discusses: the limited-grant principle, the separation principle, the primary market principle, and the accessibility principle. Some of his paragraphs seem particularly pertinent: The lesson from the stationers' copyright that remains relevant, however, is that copyright is a means of information control. This is so whether the control is exercised in the interest of the government's political power or in the interest of the copyright owner's private profit. As such, copyright can be used to inhibit rather than to promote learning. This explains why in the United States from 1790 (the date of the first Federal Copyright Act) to 1978 (the effective date of the 1976 Act), there were two conditions necessary for copyright: (1) a new writing, and (2) publication of that writing.[49] The 1976 Copyright Act eliminated the condition of publication. Herein lies the importance of understanding "the exclusive Right" that Congress is empowered to secure as the right to publish and vend. The absence of the publication requirement means, in effect, the availability of an unconditional copyright as a means of information control to inhibit learning, the very misuse of copyright the framers sought to guard against. This is why under the Constitution the Congress can grant only a copyright that ensures public access to the copyrighted material. This is the real significance of the meaning of "the exclusive Right" as the right to publish and vend. ... Of the three copyright policies in the Copyright Clause-the promotion of learning, the protection of the public domain, and the benefit to the author-two benefit both users and the public interest. Despite the clarity of their statement, however, the rules in the Copyright Act of 1976 are further removed from the public interest than the rules in any copyright statute have ever been. The policy of learning is attenuated because copyright no longer requires a public distribution of the work; the public domain is subordinated to the interest of the copyright owner because copyright can now last for a century and more; and the benefit to authors is lessened because (under the work-for-hire doctrine) copyright is no longer limited to authors. And now the DMCA doesn't even require access--where does it protect the public domain and allow fair use--how does it advance learning? One significance is that the 1976 act was an attempt by Congress to make U.S. copyright law conform to international treaties such as the Berne Convention. Of course it could not do that very well without losing the Constitutional principles. Likewise with the DMCA and the WTO (and the CTEA). An appendix to Patterson's paper refers to a demand letter to a copy shop--this letter refers to the case Basic Books v Kinko's (it was not appealed by Kinko from the SDNY), at http://www.bc.edu/bc_org/avp/cas/comm/free_speech/basicbooks.html Reading Basic Books makes one realize that all that Judge Motley did was try to balance some competing economic interests based on the fair use guidelines in the 1976 act, but without understanding or applying the Constitutional principles which Patterson enumerates. For example, some of the works referred to in the demand letter were only compilations of public domain material; excerpts from the books using only the public domain material might cause economic harm to the plaintiffs, but are obviously allowed by any sense of fair use. But the 1976 act in 17 USC 107 codifies fair use in such as way as to encourage courts to do this balancing. In particular, section 4 of the four criteria is this: (4) the effect of the use upon the potential market for or value of the copyrighted work. Contrast that to Patterson's conclusion: The key to understanding "the exclusive Right" is the right to vend, for the right to publish with no intent to sell copies raises the issue of access. Copyright, in short, was designed to protect against competitors. And its main function is to protect the entrepreneur against those who would pirate a work for competitive sale in the marketplace. The proprietary aspects of copyright thus should extend not to the individual user who makes only a personal use of the work. The opportunity for a few to gather "great profits in small payments"[a right that became possible to exercise and license with the availability of the photocopier] is not a proper basis for denying the constitutional rights of the many to use copyrighted works to further their learning. Whereas Motley states outright that access by the public does not count, only commercial interests: Additionally, "reference to a work's availability is appropriate." Wright v. Warner Books, Inc., 748 F. Supp. at 112. Therefore, longer portions copied from an out-of-print book may be fair use because the book is no longer available. (This has been thought to be true because, presumably, there is little market effect produced by the copying. However, plaintiffs in this case convincingly argue that damage to out-of-print works may in fact be greater since permissions fees may be the only income for authors and copyright owners.). It seems that Kaplan is trying to do this balancing act when he states that defendants could pay for licenses from DVD CCA like anyone else. He does not consider that there might be questions involved other than money, nor that it might be a question of public access, not just by defendants. Very likely Patterson is right that lower courts will continue to try to do economic balancing without considering Constitutional principles, and thereby arrive at nonsense, unless the Supreme Court remedies the situation by making the law plain. Insofar as the 1976 act and subsequent acts such as the DMCA and the CTEA unconstitutionally infringe on the public domain, we ought to include a challenge to them on appeal. The alternative is to allow the publishers to carry out their monopolies and antitrust tying as they like. Motley includes a section refuting Kinko's claim that the book publishers had "unclean hands" and were using courts to implement illegal antitrust activities. There are many holes in her argument, but it is useful to read. This is really just like the DeCSS case and Napster--it must be raised again and again until judges "get it." Otherwise the Stationers' Company, as Patterson relates, will win the final victory over us all. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 05:07:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA17179 for dvd-discuss-outgoing; Sat, 2 Sep 2000 05:07:11 -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 FAA17176 for ; Sat, 2 Sep 2000 05:07:10 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 2 Sep 2000 10:56:24 +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; Sat, 2 Sep 2000 10:49:08 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 2 Sep 2000 10:49:08 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000902104908.B28656@lemuria.org> References: <5b.ad3d136.26e1ce20@cs.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <5b.ad3d136.26e1ce20@cs.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 Consilgere@cs.com wrote: > And as for your assertion that "source never is dangerous", would you say the > same about guns? drugs? cars? I didn't say that "source is never dangerous" - I said that a tool isn't a murder. it may be an instrument for one, but it doesn't constitute the act. I can use photoshop (a well-known image manipulation software) to work on child porn pictures. people have been killed with virtually everything humans have created. actually, I believe that far more people die in car than in gun accidents. the point is that a tool is not an act. a sword is not a murder, a xerox machine is not an act of piracy, and a car is not a travel. and decss is neither piracy nor circumvention - it can be USED for that, but it can also be used for politics (showing that DMCA is insane) or education (programming an cryptography), even law (where's the line between code and speech?). my DeArt contest means to prove that it can even be used for art. > They're all not dangerous unless used > improperly, and there's government regulation involved in all of them. as someone else already remarked: all of these regulated tools have one thing in common: they immediatly endanger human life. that's hardly true for decss, right? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 05:07:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA17171 for dvd-discuss-outgoing; Sat, 2 Sep 2000 05:07:09 -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 FAA17168 for ; Sat, 2 Sep 2000 05:07:07 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 2 Sep 2000 10:56:24 +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; Sat, 2 Sep 2000 10:41:19 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 2 Sep 2000 10:41:19 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos and The Matrix Message-ID: <20000902104119.A28656@lemuria.org> References: <4.3.2.7.2.20000901093313.00c71720@127.0.0.1> 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 Ron Gustavson wrote: > The larger point is: do their works exist in our common info-space? > Or do we need to tolerate a special world--a Hollyworld--where no > criticism ever invades; where no one will ever, ever, ever fart? possibly - hollywood has a long history of attacking fan-websites and fan-art. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 06:16:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA17483 for dvd-discuss-outgoing; Sat, 2 Sep 2000 06:16:54 -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 GAA17480 for ; Sat, 2 Sep 2000 06:16:52 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 2 Sep 2000 12:11:59 +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, 2 Sep 2000 11:20:29 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 2 Sep 2000 11:20:29 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000902112029.A28874@lemuria.org> References: <5b.ad3d136.26e1ce20@cs.com> <20000902104908.B28656@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000902104908.B28656@lemuria.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 Tom Vogt wrote: > as someone else already remarked: all of these regulated tools have one > thing in common: they immediatly endanger human life. that's hardly true > for decss, right? actually, ever since "unsafe at any speed" we should know that the corporate republic that the US is currently evolving into values profit HIGHER than human life. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 10:49:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA19047 for dvd-discuss-outgoing; Sat, 2 Sep 2000 10:49:27 -0400 Received: from imo-r12.mx.aol.com (imo-r12.mx.aol.com [152.163.225.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA19044 for ; Sat, 2 Sep 2000 10:49:26 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r12.mx.aol.com (mail_out_v28.15.) id x.6a.645ef77 (4411) for ; Sat, 2 Sep 2000 10:49:22 -0400 (EDT) Message-ID: <6a.645ef77.26e26d72@cs.com> Date: Sat, 2 Sep 2000 10:49:22 EDT 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" 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 9/1/00 11:16:19 PM Eastern Daylight Time, jerwin@osf1.gmu.edu writes: << Intention is the operative here. Obviously, the Linux operating system has several applications and other tools that could be used in "theft of services or "computer intrusion". >> So if I'm accused of breaking into some PC somewhere using Back Orifice, and the cops come and find the Back Orifice source on my PC, it wouldn't fall under any posession law because the source is protected speech? I really don't think that would be practical. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 10:54:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA19172 for dvd-discuss-outgoing; Sat, 2 Sep 2000 10:54:12 -0400 Received: from hotmail.com (f312.law9.hotmail.com [64.4.8.187]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA19169 for ; Sat, 2 Sep 2000 10:54:11 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sat, 2 Sep 2000 07:54:17 -0700 Received: from 38.38.24.135 by lw9fd.law9.hotmail.msn.com with HTTP; Sat, 02 Sep 2000 14:54:17 GMT X-Originating-IP: [38.38.24.135] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 02 Sep 2000 10:54:17 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 02 Sep 2000 14:54:17.0917 (UTC) FILETIME=[AB3E5ED0:01C014ED] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere wrote: >But, to give an example from my >home state, owning a screwdriver is illegal if it was >used in the commission >of a breaking and entering. Strange indeed. So after the screwdriver has been used in this fashion, and is no longer needed as evidence since the guilty party has been convicted, sentenced, and exhausted appeals, the owner of the home (who foolishly left his tool box outside providing the screwdriver) either cannot get his screwdriver back, or is a criminal for not destroying it? You live in a f***ed up state! No matter, code is not a tool until it is installed on a computer anymore than my written description of how to do something is a tool. _________________________________________________________________________ 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 Sat Sep 2 11:18:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19304 for dvd-discuss-outgoing; Sat, 2 Sep 2000 11:18:00 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA19301 for ; Sat, 2 Sep 2000 11:17:59 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id LAA23427 for ; Sat, 2 Sep 2000 11:18:35 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA27281; Sat, 2 Sep 2000 11:18:35 -0400 (EDT) Date: Sat, 2 Sep 2000 11:18:35 -0400 (EDT) Message-Id: <200009021518.LAA27281@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000901205532.D18143@eldritchpress.org> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <20000901205532.D18143@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > I think it is really excellent, and even this dumbbell is beginning > to understand you. Yes, I like it too, but did you have to quote the whole thing? > So can we then go on to say that the user of DeCSS "by purchasing a > DVD player or drive containing the keys pursuant to such a license," > is thereby JUST AS lawfully gaining access, as the person who is > "entering into a license with the DVD CCA under authority granted > by the copyright owners"? Because if so then he is explicitly > recognizing the right of first sale which defendants argued--or > the equal weight which the law was intended to give to reverse > engineering. Errrrmmmm... the key at issue is the *player* key, which Kaplan argues is legally transferred at the sale of the player. The first sale doctrine concerns sale of the work. What Kaplan is really arguing for here is some kind of sui generis intellectual property protection for cryptographic keys, and as others have pointed out (starting with a /. comment that I copied here, I think, the day after the ruling --- without having fully grokked the thing myself), that simply isn't in the law. He pulled it out of his... assets. > The question, though, I believe, still exists as to whether or not > the statute is self-contradictory or overbroad. Any ideas about that? > What can you make of the final conference report? Well, the final conference report (unlike the Judiciary committee analysis relied on by Kaplan) *is* on line; you can read it yourself. Regrettably, it offers no specifics regarding the interpretation of the definitions of 1201(a)(3) or (b)(2), or how they interact with the various safe harbors set forth in 1201(c). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 12:00:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19507 for dvd-discuss-outgoing; Sat, 2 Sep 2000 12:00:03 -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 MAA19486 for ; Sat, 2 Sep 2000 12:00:02 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id IAA26806 for ; Sat, 2 Sep 2000 08:59:26 -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 smtpdAAAheaqv0; Sat Sep 2 08:59:23 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 IAA22902 for ; Sat, 2 Sep 2000 08:59:59 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Sat, 2 Sep 2000 08:58:44 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> In-Reply-To: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00090208595700.02067@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, 01 Sep 2000, Robert S. Thau wrote: > In any case, it is common knowledge (described in any elementary > textbook on the subject) that cryptographic techniques have numerous > applications which have nothing at all to do with access control; for > example, they may be used to allow a third party to verify that a > public document such as a press release was actually written by the > purported author, and not an impostor. It would be well to cite recent legislation on electronic signatures, which seems more likely to establish the fact than appeals to common knowledge. -- | 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 Sep 2 12:12:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19648 for dvd-discuss-outgoing; Sat, 2 Sep 2000 12:12:19 -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 MAA19645 for ; Sat, 2 Sep 2000 12:12:18 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id JAA11451 for ; Sat, 2 Sep 2000 09:10:32 -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 smtpdAAAoUaqmw; Sat Sep 2 09:10:21 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 JAA23054 for ; Sat, 2 Sep 2000 09:12:09 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 2 Sep 2000 09:05:13 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00090209074001.02067@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, 01 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/1/00 4:09:06 AM Eastern Daylight Time, tom@lemuria.org > writes: > > << programs are tools. you can use a hammer to kill someone, but usually you > use it to drive nails into walls. I own several swords. swords are tools > made exclusively to kill people. they're still not illegal, because they > have other uses, too - looking good over the fireplace, for example. >> > > My point exactly. programs are tools. Not speech, tools. Your code > wouldn't be illegal for quite a few reasons. But, to give an example from my > home state, owning a screwdriver is illegal if it was used in the commission > of a breaking and entering. This law could be extended to include > illegalizing certain programs if they exist on a computer thought to have > been used in an attack. I don't see why source code should be immune to a > law like that. Code like that should be illegalized. Tools can be illegal. A dictionary is a tool. A reference handbook is a tool. A rhetorical device is a tool. Hey, for that matter, legislation is a tool. Multiple inheritance in real life: something can be both speech _and_ a tool. Ain't life amazing? -- | 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 Sep 2 12:36:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19813 for dvd-discuss-outgoing; Sat, 2 Sep 2000 12:36:33 -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 MAA19810 for ; Sat, 2 Sep 2000 12:36:32 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id JAA22276 for ; Sat, 2 Sep 2000 09:37:19 -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 smtpdAAAsPayER; Sat Sep 2 09:37:14 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 JAA23301 for ; Sat, 2 Sep 2000 09:37:00 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 2 Sep 2000 09:32:53 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <6a.645ef77.26e26d72@cs.com> In-Reply-To: <6a.645ef77.26e26d72@cs.com> MIME-Version: 1.0 Message-Id: <00090209365601.02102@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, 02 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/1/00 11:16:19 PM Eastern Daylight Time, > jerwin@osf1.gmu.edu writes: > > << Intention is the operative here. Obviously, the Linux operating system has > several applications and other tools that could be used in "theft of > services or "computer intrusion". >> > So if I'm accused of breaking into some PC somewhere using Back Orifice, and > the cops come and find the Back Orifice source on my PC, it wouldn't fall > under any posession law because the source is protected speech? I really > don't think that would be practical. One of the charms in the USA is that 'practical' isn't supposed to trump liberty. Your example has several flaws, all fatal: 1) You engaged in a crime -- cracking. THAT is the crime, not posession. 2) BackOrifice is actually a remote system administration tool, and used as such by network administrators (much as a Slim Jim is used by the AAA) 3) The source for Back Orifice has several uses unrelated to the actual use of the object to crack systems; not least being development and test of measures against BackOrifice. -- | 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 Sep 2 12:57:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20448 for dvd-discuss-outgoing; Sat, 2 Sep 2000 12:57:11 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20445 for ; Sat, 2 Sep 2000 12:57:09 -0400 Received: by aero.org id <17102-5>; Sat, 2 Sep 2000 09:57:35 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa21789; Sat Sep 2 09:57:22 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 2 Sep 2000 09:57:08 -0700 Subject: Re: [dvd-discuss] CSS vs. Access Control 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 09/02/2000 09:57:07 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 2 Sep 2000 09:57:32 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Or another generation of players that only work if you are tied to the internet and they give you permission and log what you watch...the technology is there today.. Or consider this...I've bought the same recordings in reel-to-reel format, cassette, 8 track, record and CD over the years for various reasons of fidelity and convenience. Now the CD pretty much has both. I don't need cassettes or 8 track for the car....what more will DVD audio do for me? Little. 5hr play times, I can stack 5 cds on the changer. 96ksps sampling at 20 bits (or is it 24 bits) vs 48ksps at 16 bits. WFD....the Nyquist rate sets the minimal sampling rate to accurately reproduce signals. 96 dB dynamic range vs 120 (or 144?) dB. My speakers don't do that and neither does my hearing (partial deafness in my right ear)...What does the consumer get from DVD audio - Not Much...what does the media providers...ACCESS CONTROL and that's what this is all about. Jolley Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control 09/02/2000 12:27 AM Please respond to dvd-discuss "Robert S. Thau" wrote: > > Here's a sketch of an argument against Kaplan's conclusion that CSS is > effective access control, based entirely on the report which Kaplan > uses in support of his conclusion that it is (the one I dug out of > the library yesterday). > > It looks to me like, true to form, he has wildly distorted the report, > which (AFAICS) works well for the good guys. > > This looks pretty persuasive to me --- comments? > > The plaintiffs argued that the CSS technology is "access control" > because it was cryptographic in nature, and that DeCSS was > circumvention because it "decrypts a work ... without the authority of > the copyright owner." This is a somewhat peculiar contention, because > the CSS algorithm, cipher and keys embedded in DeCSS are functionally > equivalent to those in any licensed DVD player. So, one may imagine a > computer on which a licensed DVD player and DeCSS have both been > installed, and imagine them both used to provide access to the same > DVD. The plaintiffs would claim that the licensed player is > controlling access by using the CSS technology, while DeCSS is > circumventing that access control. But the implementation of CSS > embedded in the licensed player is functionally equivalent to that in > DeCSS in all respects. When one provides access, the other would as > well, in all cases. > > [footnote: the licensed DVD player taken as a whole might not > provide access due to technical measures other than CSS, such as > region coding. But the plaintiffs' own experts have acknowledged > in their testimony that these technical mechanisms are entirely > separate from CSS, and no part of it.] > > Clearly, the plaintiffs' claim cannot be based on the contention that > DeCSS circumvents CSS access control by providing access where CSS > would otherwise prevent it --- CSS itself never does any such thing. > Instead, they are asserting that the law gives them the right to > authorize (or to decline to authorize) the production of a *device* > which incorporates the CSS algorithm, cipher and keys, basing this > claim in the law's definition of "effective access control", given in > 1201(a)(3)(B). > > Judge Kaplan concurred. His analysis of this portion of the law is > based on the House Judiciary Committee's section-by-section analysis > of the bill as passed by the House (which differed in several respects > from the law as enacted, but preserves the basic approach of 1201). > However, his analysis is based on selectively quoting the report, > which, taken in whole and with its contents viewed in context, leads > to wholly different conclusions. > > Judge Kaplan correctly quotes the report as stating that: > > .... The practical, common-sense approach taken by H.R. 2281 is > that if, in the ordinary course of its operation, a technology > actually works in the defined ways to control access to a work > ... then the "effectiveness" test is met, and the prohibitions of > the statute are applicable. This test, which focuses on the > function performed by the technology, provides a sufficient basis > for clear interpretation. (p. 10) > > However, the quote is taken out of context; Kaplan never considers the > report's analysis of what "the defined ways to control access to a > work" are. And there is a reason for that --- the very first sentence > of the report's analysis of subssection 1201(a) defines the scope of > "effective access control" in a manner very much at odds with his > analysis: > > Subsection (a) of new section 1201 applies when a *person who is > not authorized* to have access to a work seeks to gain access by > circumventing a technological measure put in place by the copyright > owner that effectively controls access to the work. (p. 5, emphasis > added) > > Here we see a very different view of the scope of subsection 1201(a) > --- that it is aimed at technical measures which prevent a person from > gaining access to a work which *that person* is not authorized to > view. This view of the law is clarified further in a subsequent > section which emphasizes again that the focus of this section is on > devices which may, "in the ordinary course of their operation" > prevent *persons* who have not been specifically authorized from > accessing a work, and discusses how that might be accomplished: > > ... an access control technology under section 1201(a) would not > necessarily prevent access to a work altogether, but could be > designed to allow access during a limited time period, such as > during a period of library borrowing. Technological measures are > also essential to a distribution strategy that allows a consumer to > purchase a copy of a single article from an electronic database, > rather than having to pay more for a subscription to a journal > containing many articles the consumer does not want. > Also note how authorization occurs with distribution. > Again, the focus is on measures which perform affirmative checks as to > whether a *person* has been authorized to view a work, and which have > the *effect* of denying access to unauthorized persons. That is "the > defined way of controlling access to a work", and CSS clearly is not > within the scope of this definition. The CSS technology is not an > effective access control. > > Both the plaintiffs and Judge Kaplan have advanced other arguments as > to why CSS should be considered effective access control. Both are > groundless. > > The plaintiffs have asserted, in hearings, pleadings, and briefs, that > since CSS is "an encryption technology", it deserves protection as > access control under 1201(a). But the very report cited as an > authority by Judge Kaplan decries any such view of the bill. It says: > > Throughout the legislative process, the phrase "technological > measure" ... has been treated in H.R. 2281 in terms of the function > such a measure would perform, rather than the specific technology to > be used or the means of developing it. (p. 10) ... > > Any effort to ... define in terms of particular technologies what > constitutes an "effective" measure, could inadvertently deprive > legal protection to some of the copy or access control technologies > that are or will be in widespread use ... (p. 11). > > and more besides. > > In any case, it is common knowledge (described in any elementary > textbook on the subject) that cryptographic techniques have numerous > applications which have nothing at all to do with access control; for > example, they may be used to allow a third party to verify that a > public document such as a press release was actually written by the > purported author, and not an impostor. > > [footnote: Microsoft uses these technologies as part of its > "Authenticode" system, to verify the origin of computer code embedded > in web pages] > > The mere presence of some cryptographic technique or algorithm in CSS > cannot be taken, by itself, as any indication that access control is > happening. For that, one needs to look, as the Judiciary Committee > has indicated, at how that technology functions, and CSS does not > function as an access control. > > So much for the plaintiffs. Judge Kaplan brought an argument of his > own to bear: > > 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 or a process or a treatment, with the authority of the > copyright owner, to gain access to a work." 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. > > This is incorrect in two respects. First off, [confining ourselves to > player keys --- rest easily dealt with] Judge Kaplan is factually > wrong when he asserts that the only lawful means of gaining access to > a player key are entering into a licensing agreement or buying a > licensed player. Reverse engineering is also a legal means of gaining > access to such a key, as confirmed in Sega v. Accolade from the 9th > circuit, which is a precedent which the law was deliberately worded to > preserve, as confirmed by the Judiciary Committee's section-by-section > analysis (once again, the very same report cited by Judge Kaplan as an > authority) on page 14. > > But there is a more serious error. Kaplan bases his claim that CSS > "effectively controls access" because it is impossible to gain access > to a CSS-protected work unless the CSS technology is functioning > properly. But by that standard, one might just as well argue that the > DVD player's power supply is an access control --- it is impossible to > gain access to a work unless that is functioning as well. What makes > an access control, as the committee report makes plain, is that it may > block access *when operating normally*, and in that case, that the > criterion it uses has to do with whether the *viewer* has obtained the > authority of the copyright owner *to access a particular work*. CSS > never blocks access when operating normally; once again, it does not > effectively control access to a work as that term is defined in the > law. Your argument against Kaplan's conclusion seems to agree with Senator Ashcroft: >From [page: S4890] In discussing the anti-circumvention portion of the legislation, I think it is worth emphasizing that I could agree to support the bill's approach of outlawing certain devices because I was repeatedly assured that the device prohibitions in 1201(a)(2) and 1201(b) are aimed at so-called `black boxes' and not at legitimate consumer electronics and computer products that have substantial non-infringing uses. I specifically worked for and achieved changes to the bill to make sure that no court would misinterpret this bill as outlawing legitimate consumer electronics devices or computer hardware. As a result, neither section 1201(a)(2) nor section 1201(b) should be read as outlawing any device with substantial non-infringing uses, as per the tests provided in those sections. If history is a guide, however, someone may yet try to use this bill as a basis for initiating litigation to stop legitimate new products from coming to market. By proposing the addition of section 1201(d)(2) and (3), I have sought to make clear that any such effort to use the courts to block the introduction of new technology should be bound to fail. It's amazing how Senator Ashcroft predicted this battle of the MPAA to control the player market by preventing the development and bringing to market a new product -- a Linux DVD player. And even in its original form as a Windows program, it was a new product. I don't think Congress intended to prevent a new player from coming to market even though there is a "licensed and authorized" player available on that OS. I seem to remember Kaplan making a big deal that DeCSS was originally a Windows program and having doubts that it had anything to do with Linux. As such, it was less legitimate in his opinion. How I read Congress' intention, so what! Taking a lesson from the MPAA in their "piracy will run rampant and destroy the American way of life" theme because of DeCSS (even though there is no proof), I thought I would start some new fears of what "may happen". Control of the player market could lead to a phase out of the current generation of players to new players where you are only authorized to view a DVD if you pay a fee every time you view the DVD. A nasty bait and switch tactic. As the older models break and well before the market is saturated with players like VCRs, you will only be able to purchase the newer type. Suddenly you must start paying to view the DVDs you thought you already purchased. If this happens, then CSS will be part of an access control that can block access when operating normally. You haven't finished paying to watch those DVDs like you thought. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 13:08:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20596 for dvd-discuss-outgoing; Sat, 2 Sep 2000 13:08:49 -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 NAA20593 for ; Sat, 2 Sep 2000 13:08:48 -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 NAA29832 for ; Sat, 2 Sep 2000 13:09:24 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA27764; Sat, 2 Sep 2000 13:09:24 -0400 (EDT) Date: Sat, 2 Sep 2000 13:09:24 -0400 (EDT) Message-Id: <200009021709.NAA27764@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CSS vs. Access Control In-Reply-To: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> References: <200009012311.TAA25051@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: > In any case, it is common knowledge (described in any elementary > textbook on the subject) that cryptographic techniques have numerous > applications which have nothing at all to do with access control; for > example, they may be used to allow a third party to verify that a > public document such as a press release was actually written by the > purported author, and not an impostor. D.C. Sessions points out that digital signature laws might be another way to establish this point. (I'd reply to his message directly, but it hasn't reached me yet --- I can see it in the archive, which I was flipping through for other reasons. Weird...). That's certainly a possibility, but I don't know a heck of a lot about those laws. Most discussion I've seen of them stresses the use of digital signatures in private transactions between a buyer and a seller; that's not access control specifically, but it doesn't have quite the same "not access control, *obviously*" punch as signing a public document. If the law explicitly contemplates such uses, that's great, of course. (On, the other hand, I recall that Clinton "electronically signed" the law itself; that's a public document, I guess). BTW, the reason that I referred to this argument as a "sketch" is that it's missing stuff that you'd want to add to a fully-worked version; for instance, there's the whole parade of horribles (constitutional and otherwise) from my authority paper concerning the "authorized device" interpretation, and probably antitrust besides. (Kaplan's argument there was that the DMCA repealed the antitrust laws, to the extent that they are in conflict with it --- but 1201(a), properly interpreted, doesn't conflict with those laws at all, so those arguments should be back in full force). Also, probably more on access control vs. copy control. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 13:17:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20697 for dvd-discuss-outgoing; Sat, 2 Sep 2000 13:17:32 -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 NAA20694 for ; Sat, 2 Sep 2000 13:17:31 -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 NAA00438 for ; Sat, 2 Sep 2000 13:18:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA27795; Sat, 2 Sep 2000 13:18:07 -0400 (EDT) Date: Sat, 2 Sep 2000 13:18:07 -0400 (EDT) Message-Id: <200009021718.NAA27795@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael A. Rolenz writes: > Or another generation of players that only work if you are tied to the > internet and they give you permission and log what you watch...the > technology is there today.. FWIW, there's a safe harbor in the law --- 1201(i) --- which allows you to block the transmission of personally identifying information *if that information is being collected without your being notified*. (Big if, granted, but it's the only thing that keeps it from being legal to circumvent Circuit City Divx under the law --- if you block transmission of billing information in that system, there's nothing left). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 14:16:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA21939 for dvd-discuss-outgoing; Sat, 2 Sep 2000 14:16:27 -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 OAA21936 for ; Sat, 2 Sep 2000 14:16:26 -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 OAA03573 for ; Sat, 2 Sep 2000 14:17:03 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA28070; Sat, 2 Sep 2000 14:17:03 -0400 (EDT) Date: Sat, 2 Sep 2000 14:17:03 -0400 (EDT) Message-Id: <200009021817.OAA28070@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CSS vs. Access Control In-Reply-To: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> References: <200009012311.TAA25051@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: > Here we see a very different view of the scope of subsection 1201(a) > --- that it is aimed at technical measures which prevent a person from > gaining access to a work which *that person* is not authorized to > view. Errrmmmm... one more thing on this point, before I forget. On p. 10, right after the passage quoted by Kaplan, the Judiciary report says: [Section 1201's approach] also follows that taken by the parallel provision sof the Communications Act. Section 553(a) of Title 47, for example, prohibits both the act of cable signal theft, and the manufacturing or distribution of "equipment intended ... for unauthorized reception of any commications service offered over a cable system." Turning to section 553(a) of Title 47, we find: (a) Unauthorized interception or receipt or assistance in intercepting or receiving service; ''assist in intercepting or receiving'' defined (1) No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law. Which clearly states that the scope of authority is that a *person* is authorized to receive service by a cable operator. If 1201(a) is meant to follow the same approach, then the scope of authority there should be taken as as parallel as well --- that the section speaks of authorized persons, not authorized devices. This law does go on to state: (2) For the purpose of this section, the term ''assist in intercepting or receiving'' shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized reception of any communications service offered over a cable system in violation of subparagraph (1). which does bar certain devices, but only those which allow a *person* to receive a service which that *person* is not authorized to receive, as clarified by the explicit reference back to subparagraph (1). It certainly does not give cable operators the authority to decide by fiat what devices may be connected to their networks --- which would allow them to control the design of TV sets, for instance --- but only bans devices with the *specific function* of allowing persons to view programs which they are not authorized to view. So, is there still a viable argument for the "authorized device" interpretation? rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 14:56:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA22671 for dvd-discuss-outgoing; Sat, 2 Sep 2000 14:56:31 -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 OAA22668 for ; Sat, 2 Sep 2000 14:56:31 -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 OAA04968; Sat, 2 Sep 2000 14:57:06 -0400 (EDT) Message-ID: <39B14E02.2DF572B1@mit.edu> Date: Sat, 02 Sep 2000 14:59:14 -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] CSS vs. Access Control References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@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: > So, is there still a viable argument for the "authorized device" > interpretation? We bought the law, so we damn well know what it means! More seriously, while people by their own satellite receivers and use them for that service, I don't know of anyone who buys their own cable descrambler and uses it legally. I would guess that the cable company would argue that if you get your own descrambler they have no way of knowing whether or not it faithfully implements their authorization and billing procedures. And since there are no standards I know of that cover this, they may actually have a point... This is probably where the corresponding argument for the MPAA is broken. I'm fairly certain it has been demonstrated that there is a sealed CSS standard and the only way DeCSS (and especially LiVid) would not faithfully implement it is if some MPAA witnesses have perjured themselves since they have claimed that other technological measures (Macrovision and region coding, for example) are NOT part of CSS. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 15:11:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22836 for dvd-discuss-outgoing; Sat, 2 Sep 2000 15:11:08 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22833 for ; Sat, 2 Sep 2000 15:11:07 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id PAA06638 for ; Sat, 2 Sep 2000 15:11:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA28452; Sat, 2 Sep 2000 15:11:43 -0400 (EDT) Date: Sat, 2 Sep 2000 15:11:43 -0400 (EDT) Message-Id: <200009021911.PAA28452@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B14E02.2DF572B1@mit.edu> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > More seriously, while people by their own satellite receivers > and use them for that service, I don't know of anyone who > buys their own cable descrambler and uses it legally. I > would guess that the cable company would argue that if you > get your own descrambler they have no way of knowing whether > or not it faithfully implements their authorization and billing > procedures. Ummm... I think the cable law actually covers this case --- it's a violation to build your own device *if it lets you view programming that you haven't paid for*; you can check this independantly of whatever technical standards the cable company may have for its own equipment, since you know what you've paid for. In any case, that doesn't affect the scope of authority, which is the critical point in this case --- that the cable authority gets to authorize *viewers*, not *devices*. BTW, I'm sure that there are standards for cable company billing systems too, even if they are only company-internal documents, but their existence or nonexistence doesn't seem directly relevant to the law. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 15:36:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23053 for dvd-discuss-outgoing; Sat, 2 Sep 2000 15:36:08 -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 PAA23050 for ; Sat, 2 Sep 2000 15:36:07 -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 PAA20103; Sat, 2 Sep 2000 15:36:42 -0400 (EDT) Message-ID: <39B15749.D5118339@mit.edu> Date: Sat, 02 Sep 2000 15:38:49 -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] CSS vs. Access Control References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@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: > > More seriously, while people by their own satellite receivers > > and use them for that service, I don't know of anyone who > > buys their own cable descrambler and uses it legally. I > > would guess that the cable company would argue that if you > > get your own descrambler they have no way of knowing whether > > or not it faithfully implements their authorization and billing > > procedures. > > Ummm... I think the cable law actually covers this case --- it's a > violation to build your own device *if it lets you view programming > that you haven't paid for*; you can check this independantly of > whatever technical standards the cable company may have for its own > equipment, since you know what you've paid for. > > In any case, that doesn't affect the scope of authority, which is the > critical point in this case --- that the cable authority gets to > authorize *viewers*, not *devices*. > > BTW, I'm sure that there are standards for cable company billing > systems too, even if they are only company-internal documents, but > their existence or nonexistence doesn't seem directly relevant to the > law. OK, so you're saying I drew the wrong conclusion from seeing that there aren't any people getting non-cable-company boxes. The reason people don't want non-company boxes is that company boxes don't restrict what you can do with content you've paid for. The reason company boxes don't restrict what you can do with content is because if they did, someone would (legally!) go into the non-company box business for those consumers who cared. And the cable companies don't want to let that happen because then they would lose the some of the economies of scale that they have from the large volume of cable boxes they rent with their service (thing like more easily handling people start and stop service because they have a larger reservior of boxes to draw on, better deals with the box makers and so on...). The satellite case is different because the satellite companies need no physical connection to the customer in the first place so they are happier to "outsource" the deployment of their infrastructure to other companies as that can increase the rate at which people sign up for their service (as well as potentially lead to useful innovations). And this also explains why you _can_ buy and use third-party cable modems. Because, for the cable company, in that case the economics look more like the satellite business because they are trying to deploy the cable modem service as fast as they can rather than optimize the operation of an already deployed infrastructure. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 15:45:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA23180 for dvd-discuss-outgoing; Sat, 2 Sep 2000 15:45:43 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA23177 for ; Sat, 2 Sep 2000 15:45:42 -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 PAA08421 for ; Sat, 2 Sep 2000 15:46:19 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA28888; Sat, 2 Sep 2000 15:46:19 -0400 (EDT) Date: Sat, 2 Sep 2000 15:46:19 -0400 (EDT) Message-Id: <200009021946.PAA28888@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B15749.D5118339@mit.edu> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@soggy-fibers.ai.mit.edu> <39B15749.D5118339@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > OK, so you're saying I drew the wrong conclusion from seeing that > there aren't any people getting non-cable-company boxes. The reason > people don't want non-company boxes is that company boxes don't > restrict what you can do with content you've paid for. Perhaps. Also, you get the box free with the service; there's no market incentive for using your own. BTW, your interpretation seemed to be arguing, in effect, that 47 USC 553 made reverse-engineering a set-top box illegal, which (for reasons already stated) seems wrong to me. But it seems even more wrong when applied to the DMCA, which has an explicit safe-harbor clause for reverse engineering. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 17:09:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23311 for dvd-discuss-outgoing; Sat, 2 Sep 2000 17:09:42 -0400 Received: from myriad (GRUEL137.PPP.ANDREW.CMU.EDU [128.2.60.137]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23307 for ; Sat, 2 Sep 2000 17:09:36 -0400 Received: (from ghio@localhost) by myriad (8.9.3/8.9.3/Debian/GNU) id OAA22579; Sat, 2 Sep 2000 14:06:00 -0700 Date: Sat, 2 Sep 2000 14:06:00 -0700 Message-Id: <200009022106.OAA22579@myriad> From: ghio+_nospam_+@altavista.net (Matthew Ghio) To: Subject: Re: [dvd-discuss] Winning and losing In-Reply-To: <000001c014b4$72fee4b0$0200a8c0@shannon> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Dempsey wrote: >I consider it very plausable that deCSS will be in a player--perhaps a >pirate's toolkit app--illegal but readily available. AOL killed Gnutella >but it's thriving. RIAA will probably kill Napster but the Napster protocol >(related in name and function only) has about twenty variant servers so far. >It is a blow to freedom when application of reverse-engineered knowledge is >illegal. It's a much bigger blow the day it's impossible. And *that* day >is not on the horizon. All this court stuff is just bailing water for these >industries no matter who wins. They lost and we won the day the key leaked. >It's all downhill from there. So turn that frown upside down! Rejoice! Of course DeCSS players are available, and will continue to be. You're missing the point. Everyone knows that DeCSS, open standards, etc, will win eventually. The problem we face is how to mitigate the huge amount of damage that the MPAA et al is trying to inflict in the process. If the MPAA wins this one, they will be emboldened to create a new, more extensive protection system, which will include more restrictions, more player incompatibilities, and more consumer backlash. That will make it more difficult and expensive to legally purchase and use copyrighted content, which will lead to more illegal copying. Then the MPAA will bitch and complain about this new "piracy" problem - a problem which they themselves created. A vicious downward spiral. The MPAA doesn't yet realize how much damage they are trying to inflict on themselves (and everyone else). They're going to figure it out sooner or later. Either they can learn the easy way, which is that the court upholds the fair use doctrine, as in the Sony Betamax case, and a new market for home video develops, or they can learn it the hard way - the way the music industry had to have reality come bash them on the head after they killed DAT with too many copy-protection restrictions, ripped people off, and now must face MP3-trading and antitrust lawsuits. Let's hope that the court of appeals has some sense, and that the MPAA doesn't force everyone to do this the hard way. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 21:28:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25566 for dvd-discuss-outgoing; Sat, 2 Sep 2000 21:28:11 -0400 Received: from imo-d01.mx.aol.com (imo-d01.mx.aol.com [205.188.157.33]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25563 for ; Sat, 2 Sep 2000 21:28:10 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d01.mx.aol.com (mail_out_v28.15.) id x.46.a25dc74 (4319) for ; Sat, 2 Sep 2000 21:28:21 -0400 (EDT) Message-ID: <46.a25dc74.26e30335@cs.com> Date: Sat, 2 Sep 2000 21:28:21 EDT 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" 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 9/2/00 3:20:57 AM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << As I pointed out, 'technology' is for all practical purposes synonomous with 'knowledge'. One refers to a way of doing things, and the other refers to knowing _how_ to do them; you can't ban technology without banning knowledge. Which strikes so directly at the First Amendment that there's no way to dance around the conflict. >> Not that I havent done this before, but I disagree. Ireally don't thinks that an accurate definition of technology. Technology is an exploitation of knowledge, but you really can't say they're synonyms. The wheel was very high-tech at one point in our history. Would you consider the wheel knowlegde? From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 21:36:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25709 for dvd-discuss-outgoing; Sat, 2 Sep 2000 21:36:31 -0400 Received: from imo-r08.mx.aol.com (imo-r08.mx.aol.com [152.163.225.8]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25706 for ; Sat, 2 Sep 2000 21:36:31 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r08.mx.aol.com (mail_out_v28.15.) id x.c8.9d7b6a8 (4319) for ; Sat, 2 Sep 2000 21:36:35 -0400 (EDT) Message-ID: Date: Sat, 2 Sep 2000 21:36:34 EDT 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" 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 9/2/00 5:10:07 AM Eastern Daylight Time, tom@lemuria.org writes: << the point is that a tool is not an act. >> I agree. But that doesn't make it wrong to illegalize a tool if you have a good reason. While we may agree there is no good reason to illegalize DeCSS, let's not get too carried away. I say you can't illegalize DeCSS because the reason isn't compelling enough. You seem to say you can't illegalize DeCSS because you can't illegalize software or source code. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 21:41:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25768 for dvd-discuss-outgoing; Sat, 2 Sep 2000 21:41:53 -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 VAA25765 for ; Sat, 2 Sep 2000 21:41:52 -0400 Received: from Jana-Server (user-38ld6i8.dialup.mindspring.com [209.86.154.72]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id VAA10136 for ; Sat, 2 Sep 2000 21:42:28 -0400 (EDT) Message-ID: <39B1AC44.BE6093EB@mindspring.com> Date: Sat, 02 Sep 2000 21:41:25 -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] CSS vs. Access Control Content-Type: text/plain; charset=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: > > So, is there still a viable argument for the "authorized device" > > interpretation? > > > We bought the law, so we damn well know what it means! > > > More seriously, while people by their own satellite receivers > and use them for that service, I don't know of anyone who > buys their own cable descrambler and uses it legally. I > A cable descrambler box has to get connected to the cable to work. It probably can be argued that doing so is a form of trespass, and automated detection is easily implemented because there is a return path. The satellite receiver is pulling the signal out of the air, with no inherent return path. Detection is difficult, phone lines get added to provide a return path for billing transactions with a side effect of tamper detection. > This is probably where the corresponding argument for the > MPAA is broken. I'm fairly certain it has been demonstrated > that there is a sealed CSS standard and the only way DeCSS > (and especially LiVid) would not faithfully implement it > is if some MPAA witnesses have perjured themselves since > they have claimed that other technological measures > (Macrovision and region coding, for example) are NOT > part of CSS. > > - Ravi Nanavati > It's broken in another way. It appears to me that any effective access control measure must have a return path. There is no way for a device controlling access to a work to know if an access event is authorized without a transaction of some sort. Other than the TPM in question, what other measures are there that function without a return path and without a per access transaction? mickeym From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 21:42:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25776 for dvd-discuss-outgoing; Sat, 2 Sep 2000 21:42:41 -0400 Received: from imo-r08.mx.aol.com (imo-r08.mx.aol.com [152.163.225.8]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25773 for ; Sat, 2 Sep 2000 21:42:40 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r08.mx.aol.com (mail_out_v28.15.) id x.60.6912974 (4319) for ; Sat, 2 Sep 2000 21:42:46 -0400 (EDT) Message-ID: <60.6912974.26e30695@cs.com> Date: Sat, 2 Sep 2000 21:42:45 EDT 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" 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 9/2/00 12:14:19 PM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << Multiple inheritance in real life: something can be both speech _and_ a tool. >> Yes, something can. If we really wanted to, we could scratch the Emancipation Proclamation onto the side of a tank. If something is speech and a tool, it's not unreasonable to treat it like a tool, unless there are some safeguards in place to prevent it from being used as a tool. Where are those safeguards in source code? From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 21:49:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25924 for dvd-discuss-outgoing; Sat, 2 Sep 2000 21:49:06 -0400 Received: from imo-r04.mx.aol.com (imo-r04.mx.aol.com [152.163.225.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25921 for ; Sat, 2 Sep 2000 21:49:05 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r04.mx.aol.com (mail_out_v28.15.) id x.12.1d277a4 (4319) for ; Sat, 2 Sep 2000 21:49:07 -0400 (EDT) Message-ID: <12.1d277a4.26e30813@cs.com> Date: Sat, 2 Sep 2000 21:49:07 EDT 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" 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 9/2/00 12:38:38 PM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << One of the charms in the USA is that 'practical' isn't supposed to trump liberty. >> No, but if we want to be taken seriously it would be a good idea not to argue that because we're more intelligent and better with computers, somehow our work is more special than that of any other profession. It just creates more resentment on top of the resentment we already have from being intellectuals. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 21:53:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25985 for dvd-discuss-outgoing; Sat, 2 Sep 2000 21:53:54 -0400 Received: from mason2.gmu.edu (mason2.gmu.edu [129.174.1.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25982 for ; Sat, 2 Sep 2000 21:53:53 -0400 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id VAA16764 for ; Sat, 2 Sep 2000 21:54:31 -0400 (EDT) Date: Sat, 2 Sep 2000 21:54:30 -0400 (EDT) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <46.a25dc74.26e30335@cs.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 2 Sep 2000 Consilgere@cs.com wrote: > Not that I havent done this before, but I disagree. Ireally don't thinks > that an accurate definition of technology. Technology is an exploitation of > knowledge, but you really can't say they're synonyms. The wheel was very > high-tech at one point in our history. Would you consider the wheel > knowlegde? > Technology (1)(a) A discourse or treatise on an art or arts; the scientific study of the practical or industrial arts. 1615 Buck Third Univ. Eng. xlviii, An apt close of this general Technologie. 1628 Venner Baths of Bathe 9 Heere I cannot but lay open Baths Technologie. 1706 Phillips (ed. Kersey), Technology, a Description of Arts, especially the Mechanical. (..) OED, 2nd Edition Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 2 22:44:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26381 for dvd-discuss-outgoing; Sat, 2 Sep 2000 22:44:06 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA26378 for ; Sat, 2 Sep 2000 22:43:53 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA20008 for dvd-discuss@eon.law.harvard.edu; Sat, 2 Sep 2000 17:14:37 -0400 Date: Sat, 2 Sep 2000 17:13:15 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000902171315.B19559@eldritchpress.org> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@soggy-fibers.ai.mit.edu> <39B15749.D5118339@mit.edu> <200009021946.PAA28888@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200009021946.PAA28888@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sat, Sep 02, 2000 at 03:46:19PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Sep 02, 2000 at 03:46:19PM -0400, Robert S. Thau wrote: > Ravi Nanavati writes: > > OK, so you're saying I drew the wrong conclusion from seeing that > > there aren't any people getting non-cable-company boxes. The reason > > people don't want non-company boxes is that company boxes don't > > restrict what you can do with content you've paid for. > > Perhaps. Also, you get the box free with the service; there's no > market incentive for using your own. This may be true with some services; with my service one rents the set-top box. Without the box, one cannot rent pay-per-view movies on the system. And without the box the monthly fee is less (I returned the box for a refund after it came with the subscription.) Instead of the box, I use the reception equipment I already have, various tuners and so on that I did not acquire from the cable system operator. Another point is that some of the boxes might be patented (I believe the Scientific Atlanta or General Instrument boxes prevailed over black boxes because of their patent claims?) Absent patent infringement proof, we can again claim that plaintiffs seek a perpetual patent-like protection for the devices by misuse of copyright. But the market incentives are not really important here, are they? It's how the Congress tried to extrapolate from "black boxes" with cable TV, to similar "devices" with DVD. I believe Robert has demonstrated that Congress did not intend to ban the boxes--it tried to make the authority attach to "persons" and not "devices." Kaplan is simply misreading the law, by selectively quoting the report he relies on. By banning code, he is not only cutting off any illegal uses by people of the code, he is eliminating any possible fair use of the code. In addition to those points, the report refers to the communications act specification of what DMCA calls a device--and it turns out to be hardware, some "equipment" that is not meant to apply to software. So this would be something like a DVD drive that is made to play counterfeit discs. (With CSS, it turns out to be all of them.) Finally, besides attaching authority to a person and not a device, the report and the reference indicate (how definitively?) that the authority is carried with first sale. That is, Congress was concerned that people might use these boxes to bypass paying for content. The other, catch-all, phrase "other legal authority" probably is just thrown in to cover unusual circumstances such as FBI wiretapping or professional recording use. But in the first instance it surely means conveyed with first sale. It surely does not involve some separate act of "consent" as stated by Kaplan. It is possible that a cable TV contract can involve agreement and license concerning use of equipment. But if user pays for receiving a movie, and user's equipment is indistinguishable from system's, and does not interfere with operation of system, then cable system operators have no grounds for complaint. In fact, if they tried to use federal law to enforce some tying of cable tv with particular reception equipment, then they are liable to antitrust tying violation. Because it might be necessary for user to employ her own equipment to gain fair use of the purchased movie--her own box might allow copying, for example, which system's doesn't. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 01:50:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27621 for dvd-discuss-outgoing; Sun, 3 Sep 2000 01:50:02 -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 BAA27618 for ; Sun, 3 Sep 2000 01:50:01 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id WAA04140 for ; Sat, 2 Sep 2000 22:48:17 -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 smtpdAAAzKaaei; Sat Sep 2 22:48:14 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 WAA24817 for ; Sat, 2 Sep 2000 22:50:33 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 2 Sep 2000 22:47:47 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <46.a25dc74.26e30335@cs.com> In-Reply-To: <46.a25dc74.26e30335@cs.com> MIME-Version: 1.0 Message-Id: <00090222503201.02493@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, 02 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/2/00 3:20:57 AM Eastern Daylight Time, > dcs@mailhost.lumbercartel.com writes: > > << As I pointed out, 'technology' is for all practical purposes > synonomous with 'knowledge'. One refers to a way of doing > things, and the other refers to knowing _how_ to do them; you > can't ban technology without banning knowledge. Which strikes > so directly at the First Amendment that there's no way to dance > around the conflict. >> > > Not that I havent done this before, but I disagree. Ireally don't thinks > that an accurate definition of technology. Technology is an exploitation of > knowledge, but you really can't say they're synonyms. The wheel was very > high-tech at one point in our history. Would you consider the wheel > knowlegde? Absolutely. Etymology isn't everything, but it's a very useful guide nonetheless. Look up the roots of 'technique' and 'technology' and you get straight to knowledge. (As the '-nology' suffix should hint.) Just because wheels have become so ubiquitous that you can't get away from them doesn't mean that they aren't knowledge, it just means that we have a hard time imagining NOT knowing about them. -- | 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 Sep 3 01:58:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27754 for dvd-discuss-outgoing; Sun, 3 Sep 2000 01:58:15 -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 BAA27751 for ; Sun, 3 Sep 2000 01:58:14 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id WAA14716 for ; Sat, 2 Sep 2000 22:59:00 -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 smtpdAAANKa4OC; Sat Sep 2 22:58:49 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 WAA24956 for ; Sat, 2 Sep 2000 22:58:36 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 2 Sep 2000 22:55:17 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <12.1d277a4.26e30813@cs.com> In-Reply-To: <12.1d277a4.26e30813@cs.com> MIME-Version: 1.0 Message-Id: <00090222574003.02493@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, 02 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/2/00 12:38:38 PM Eastern Daylight Time, > dcs@mailhost.lumbercartel.com writes: > > << One of the charms in the USA is that 'practical' isn't supposed to trump > liberty. >> > No, but if we want to be taken seriously it would be a good idea not to argue > that because we're more intelligent and better with computers, somehow our > work is more special than that of any other profession. It just creates more > resentment on top of the resentment we already have from being intellectuals. On the contrary, we're arguing that the words that we write are NO DIFFERENT from the words written by any other writer. (Gosh, what a radical notion!) It's the SDNY Court that's trying to pretend that somehow all writings are subject to strict First Amendment scrutiny except when they're somehow magical incantations for making computers do incomprehensible things. -- | 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 Sep 3 01:58:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27746 for dvd-discuss-outgoing; Sun, 3 Sep 2000 01:58:08 -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 BAA27743 for ; Sun, 3 Sep 2000 01:58:07 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id WAA09470 for ; Sat, 2 Sep 2000 22:57:32 -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 smtpdAAAAHaqCs; Sat Sep 2 22:57:27 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 WAA24907 for ; Sat, 2 Sep 2000 22:57:54 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sat, 2 Sep 2000 22:51:16 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <60.6912974.26e30695@cs.com> In-Reply-To: <60.6912974.26e30695@cs.com> MIME-Version: 1.0 Message-Id: <00090222550002.02493@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, 02 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/2/00 12:14:19 PM Eastern Daylight Time, > dcs@mailhost.lumbercartel.com writes: > > << Multiple inheritance in real life: something can be both speech _and_ a > tool. >> > Yes, something can. If we really wanted to, we could scratch the > Emancipation Proclamation onto the side of a tank. If something is speech > and a tool, it's not unreasonable to treat it like a tool, unless there are > some safeguards in place to prevent it from being used as a tool. Where are > those safeguards in source code? Where are those safeguards in the writings of Thomas Jefferson, who was also writing tools? THOUGHT is a tool. All you've done is create a handwaving excuse to sidestep the First Amendment across the board. The tank case is pathetic. You're confusing the medium with the message, and *I* have been the one pointing out that scribbling words on a bullet doesn't subject murder to strict scrutiny. Which is totally different from saying that the WORDS themselves aren't subject to strict scrutiny. -- | 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 Sep 3 06:07:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA30054 for dvd-discuss-outgoing; Sun, 3 Sep 2000 06:07:19 -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 GAA30051 for ; Sun, 3 Sep 2000 06:07:16 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 3 Sep 2000 12:04:15 +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; Sun, 3 Sep 2000 11:52:43 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 3 Sep 2000 11:52:43 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000903115243.A32152@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 Consilgere@cs.com wrote: > << the point is that a tool is not an act. >> > I agree. But that doesn't make it wrong to illegalize a tool if you have a > good reason. that's a political debate. obviously, my country decided that guns are tools that need to be illegal (with exceptions). so yes, the law recognizes illegal tools. it's just that those I'm aware of endanger human life. > You seem to say you can't illegalize DeCSS because you can't illegalize > software or source code. yes, I say that. software is too fluent. you can't outlaw something that can change faster than you can analyze it (know what a polymorph virus is?) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 08:17:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30284 for dvd-discuss-outgoing; Sun, 3 Sep 2000 08:17:44 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA30281 for ; Sun, 3 Sep 2000 08:17:41 -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 IAA20039 for ; Sun, 3 Sep 2000 08:18:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA01364; Sun, 3 Sep 2000 08:18:18 -0400 (EDT) Date: Sun, 3 Sep 2000 08:18:18 -0400 (EDT) Message-Id: <200009031218.IAA01364@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B1AC44.BE6093EB@mindspring.com> References: <39B1AC44.BE6093EB@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym@mindspring.com writes: > It's broken in another way. It appears to me that any effective > access control measure must have a return path. There is no way for > a device controlling access to a work to know if an access event is > authorized without a transaction of some sort. > > Other than the TPM in question, what other measures are there that > function without a return path and without a per access > transaction? Well, if I understand your terms right, one example would be straight cryptography, applied as follows: You generate a key, and send that key and your credit card number over a secure channel to, say, the Journal of Forensic Dramaturgy. They accept payment and send you twelve monthly issues, all encrypted with your key. If an eavesdropper intercepts the transmission, they need the key to get anything out of it --- and anyone who could get at that could also get at the decrypted bits of the Journal itself (since you presumably handle your keys with at least as much care). So it certainly prevents a third party from gaining access, barring malfeasance on their part or deliberate fraud on yours. (The secure channel at the beginning is a bit of a wart, which could be eliminated with proper application of public-key crypto, but though the techie in me is gagging when I say it, that's a detail at this level of analysis). There's nothing about this setup that keeps you from republishing the content, of course, but unauthorized republication is possible under any access control regime, and is not properly the subject of access control per se; it's copy control, if anything, which is dealt with separately in the law. BTW, note that this illustrates a bit of a problem with the "key provided by the copyright owner" test from the commerce committee report; the key, in this instance, is provided by the subscriber, not the copyright owner. But the same is true of most ordinary password protection systems, which are, IIRC, cited in the commerce committee report itself as effective access controls; the key is the password, and it is generally provided by the user --- the subscriber, in the case of, say, the on-line Wall Street Journal, and not the copyright holder. Besides, there's a practical problem with criteria for "effective access control" which require judges to test fairly subtle technical distinctions: they make it too easy for a copyright owner with ill will and a sharp lawyer to fudge the distinctions, and claim statutory protection as an access control for something that doesn't deserve it. In fact, we're looking at an example of that right now. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 08:28:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30450 for dvd-discuss-outgoing; Sun, 3 Sep 2000 08:28:29 -0400 Received: from kruuna.Helsinki.FI (sendmail@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA30447 for ; Sun, 3 Sep 2000 08:28:28 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e83CT5S12448 for ; Sun, 3 Sep 2000 15:29:05 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 3 Sep 2000 15:29:05 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A question on copyright and free presses. In-Reply-To: <20000901202536.C18143@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, 1 Sep 2000, Eric Eldred wrote: >So the argument needs to be made that Congress extending >this right is acting unconstitutionally. Constitution >limits term and rights "to promote the progress of science >and the useful arts," by ENCOURAGING publication. How >does prohibiting publication of ideas (DeCSS) do this? You do remember that DMCA was not passed entirely under copyright powers, right? Surprisingly enough there seems to be no safeguard against intermixing stuff passed by copyright and commerce powers in the statute. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 08:47:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30570 for dvd-discuss-outgoing; Sun, 3 Sep 2000 08:47:53 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA30567 for ; Sun, 3 Sep 2000 08:47:51 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id IAA21088 for ; Sun, 3 Sep 2000 08:48:30 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA01410; Sun, 3 Sep 2000 08:48:29 -0400 (EDT) Date: Sun, 3 Sep 2000 08:48:29 -0400 (EDT) Message-Id: <200009031248.IAA01410@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000902171315.B19559@eldritchpress.org> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@soggy-fibers.ai.mit.edu> <39B15749.D5118339@mit.edu> <200009021946.PAA28888@soggy-fibers.ai.mit.edu> <20000902171315.B19559@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > This may be true with some services; with my service one rents > the set-top box. Without the box, one cannot rent pay-per-view > movies on the system. And without the box the monthly fee is less > (I returned the box for a refund after it came with > the subscription.) Instead of the box, I use the reception > equipment I already have, various tuners and so on that I did > not acquire from the cable system operator. Hmmm... so the *real* reason that no one has ever heard of "over-the-counter interfaces from cable TV terminals to commonly available consumer electronics" is that they are usually marketed as "wire". Got it. > Another point is that some of the boxes might be patented (I believe > the Scientific Atlanta or General Instrument boxes prevailed over > black boxes because of their patent claims?) Patents can screw up anything these days, but one fight at a time. > I believe Robert has demonstrated that Congress did not intend to > ban the boxes--it tried to make the authority attach to "persons" > and not "devices." Kaplan is simply misreading the law, by > selectively quoting the report he relies on. Well, I've been arguing for months that the MPAA, and now Kaplan, are misreading the law, but I've only been able to do it indirectly --- in the debates, the proponents of the law say things all over the place that are completely inconsistent with an "authorized device" interpretation. But that's all implications and inferences. Leave it to Kaplan to base *his* analysis on the one report I've seen yet in which they attach authority to a person, and not a device, in reasonably plain English --- a report which isn't readily available on line (if at all), and which I certainly wouldn't have looked at otherwise. > By banning code, > he is not only cutting off any illegal uses by people of the code, > he is eliminating any possible fair use of the code. Well, he is, but that's an argument targeted more at the "code as speech" aspect of the case than the definition of access control per se, which is where I'm focusing this particular attack. > In addition to those points, the report refers to the communications > act specification of what DMCA calls a device--and it turns out to > be hardware, some "equipment" that is not meant to apply to software. > So this would be something like a DVD drive that is made to play > counterfeit discs. (With CSS, it turns out to be all of them.) Ummm.... that may be a stretch. The report invokes the communications act's parallel policy approach in *not* naming specific technologies; I don't read that to say that software isn't covered because the law excludes software technology. And in any case, this is only a citation of another situation in which Congress took a *roughly* similar approach. For all the discussion about the cable act, I don't think it's nearly as important as the report saying "person who is not authorized" when discussing 1201(a) itself. > Finally, besides attaching authority to a person and not a device, > the report and the reference indicate (how definitively?) that the > authority is carried with first sale. That is, Congress was > concerned that people might use these boxes to bypass paying for > content. The other, catch-all, phrase "other legal authority" > probably is just thrown in to cover unusual circumstances such > as FBI wiretapping or professional recording use. But in the > first instance it surely means conveyed with first sale. It > surely does not involve some separate act of "consent" as stated > by Kaplan. Congress is definitely concerned with people getting access to stuff which they haven't paid for. However, the report doesn't address the first sale doctrine specifically (including, say, the right to resell a copy) anywhere that I can see. BTW, one of the frustrating things about this for me is that I'm talking about a report which other people can't get at, since it isn't on line. Unfortunately, my Xerox might not do well through a scanner, particularly not after I scribbled all over it. Sigh... > It is possible that a cable TV contract can involve > agreement and license concerning use of equipment. But if user > pays for receiving a movie, and user's equipment is indistinguishable > from system's, and does not interfere with operation of system, then > cable system operators have no grounds for complaint. In fact, if > they tried to use federal law to enforce some tying of cable tv > with particular reception equipment, then they are liable to > antitrust tying violation. Because it might be necessary for user > to employ her own equipment to gain fair use of the purchased > movie--her own box might allow copying, for example, which system's > doesn't. Copy control is a separate issue. But note the "no required response" provision of 1201(c)(3); if your box isn't doing anything affirmative to *defeat* a copy control, but just ignoring it, you should be fine. (And yes, that means the courts blew it on Streambox, if I'm remembering the name of the case right). rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 09:57:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30806 for dvd-discuss-outgoing; Sun, 3 Sep 2000 09:57:59 -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 JAA30803 for ; Sun, 3 Sep 2000 09:57:58 -0400 Received: from Jana-Server (user-38ld6pu.dialup.mindspring.com [209.86.155.62]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id JAA20932 for ; Sun, 3 Sep 2000 09:58:35 -0400 (EDT) Message-ID: <39B25914.E5612DB5@mindspring.com> Date: Sun, 03 Sep 2000 09:58:45 -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: Re: [dvd-discuss] CSS vs. Access Control Content-Type: text/plain; charset=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@mindspring.com writes: > > > It's broken in another way. It appears to me that any effective > > access control measure must have a return path. There is no way for > > a device controlling access to a work to know if an access event is > > authorized without a transaction of some sort. > > > > Other than the TPM in question, what other measures are there that > > function without a return path and without a per access > > transaction? > > Well, if I understand your terms right, one example would be straight > cryptography, applied as follows: > > > You generate a key, and send that key and your credit card number over > a secure channel to, say, the Journal of Forensic Dramaturgy. They > accept payment and send you twelve monthly issues, all encrypted with > your key. If an eavesdropper intercepts the transmission, they need > the key to get anything out of it --- and anyone who could get at that > could also get at the decrypted bits of the Journal itself (since you > presumably handle your keys with at least as much care). So it > certainly prevents a third party from gaining access, barring > malfeasance on their part or deliberate fraud on yours. > > (The secure channel at the beginning is a bit of a wart, which could > be eliminated with proper application of public-key crypto, but though > the techie in me is gagging when I say it, that's a detail at this > level of analysis). > > The secure channel is the return path. Plus, when they get your card number, a transaction occurs with your bank. And if the encrypted journal were to have a timeout mechanism, you would have to employ the secure channel again to stimulate another transaction. This is the quality of an access control that I assert is necessary, as opposed to a one-time wrapper, such as CSS. mickeym From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 11:55:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31041 for dvd-discuss-outgoing; Sun, 3 Sep 2000 11:55:59 -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 LAA31038 for ; Sun, 3 Sep 2000 11:55:57 -0400 Received: from swbell.net ([64.216.210.188]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0B00K2DIU3VM@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sun, 3 Sep 2000 10:54:03 -0500 (CDT) Date: Sun, 03 Sep 2000 10:45:59 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B27237.AEE12489@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: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@soggy-fibers.ai.mit.edu> <39B15749.D5118339@mit.edu> <200009021946.PAA28888@soggy-fibers.ai.mit.edu> <20000902171315.B19559@eldritchpress.org> <200009031248.IAA01410@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > > BTW, one of the frustrating things about this for me is that I'm > talking about a report which other people can't get at, since it isn't > on line. Unfortunately, my Xerox might not do well through a scanner, > particularly not after I scribbled all over it. Sigh... I would like to look at the report. > > > It is possible that a cable TV contract can involve > > agreement and license concerning use of equipment. But if user > > pays for receiving a movie, and user's equipment is indistinguishable > > from system's, and does not interfere with operation of system, then > > cable system operators have no grounds for complaint. In fact, if > > they tried to use federal law to enforce some tying of cable tv > > with particular reception equipment, then they are liable to > > antitrust tying violation. Because it might be necessary for user > > to employ her own equipment to gain fair use of the purchased > > movie--her own box might allow copying, for example, which system's > > doesn't. > > Copy control is a separate issue. But note the "no required response" > provision of 1201(c)(3); if your box isn't doing anything affirmative > to *defeat* a copy control, but just ignoring it, you should be fine. > (And yes, that means the courts blew it on Streambox, if I'm > remembering the name of the case right). > > rst I read 1201(c)(3) as allowing manufacturers of black boxes to be free to use whatever parts they want to use. It doesn't say they can "ignore" a technological measure. Ignoring, as you described above, doesn't mean you can avoid the prohibitions of subsection (a)(2) or (b)(1). This is probably for manufacturers that don't want to license DVDCCA but want to build a player that can only play DVDs that don't use CSS. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 12:07:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31190 for dvd-discuss-outgoing; Sun, 3 Sep 2000 12:07:05 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31187 for ; Sun, 3 Sep 2000 12:07:04 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id MAA29283 for ; Sun, 3 Sep 2000 12:07:43 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA01915; Sun, 3 Sep 2000 12:07:43 -0400 (EDT) Date: Sun, 3 Sep 2000 12:07:43 -0400 (EDT) Message-Id: <200009031607.MAA01915@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B25914.E5612DB5@mindspring.com> References: <39B25914.E5612DB5@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym@mindspring.com writes: > The secure channel is the return path. Plus, when they get your card > number, a transaction occurs with your bank. And if the encrypted > journal were to have a timeout mechanism, you would have to employ the > secure channel again to stimulate another transaction. Hmmm... if what you mean by "return path" is that there has to be some interaction between the subscriber and the publisher at some point, that seems reasonable, though the interaction could conceivably be very indirect. (I'm thinking about cases where at least one side of the interaction goes entirely through intermediaries, as in a public key infrastructure, without any direct communication). But that's only a necessary condition, not sufficient --- there are any number of things that might be communicated over even a direct channel (personal preferences, selection of relevant material, etc., etc.) without having anything to do with access control. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 12:15:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31327 for dvd-discuss-outgoing; Sun, 3 Sep 2000 12:15:53 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31324 for ; Sun, 3 Sep 2000 12:15:52 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id MAA29730 for ; Sun, 3 Sep 2000 12:16:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA01941; Sun, 3 Sep 2000 12:16:30 -0400 (EDT) Date: Sun, 3 Sep 2000 12:16:30 -0400 (EDT) Message-Id: <200009031616.MAA01941@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B27237.AEE12489@swbell.net> References: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@soggy-fibers.ai.mit.edu> <39B15749.D5118339@mit.edu> <200009021946.PAA28888@soggy-fibers.ai.mit.edu> <20000902171315.B19559@eldritchpress.org> <200009031248.IAA01410@soggy-fibers.ai.mit.edu> <39B27237.AEE12489@swbell.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tjolley@swbell.net writes: > I read 1201(c)(3) as allowing manufacturers of black boxes to be free > to use whatever parts they want to use. It doesn't say they can > "ignore" a technological measure. Ignoring, as you described above, > doesn't mean you can avoid the prohibitions of subsection (a)(2) or > (b)(1). This is probably for manufacturers that don't want to license > DVDCCA but want to build a player that can only play DVDs that don't > use CSS. Ummm... could you say what you mean by "black box"? Throughout the legislative history, that term is taken to be synonymous with "circumvention device" --- illegitimate by definition. This is very different from the engineer's usage of "a device that performs a specific function in some unspecified way --- never mind what's inside it". But we won't turn them into engineers any time soon... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 12:56:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31418 for dvd-discuss-outgoing; Sun, 3 Sep 2000 12:56:31 -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 MAA31415 for ; Sun, 3 Sep 2000 12:56:27 -0400 Received: from Jana-Server (user-38lcjle.dialup.mindspring.com [209.86.78.174]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id MAA15888 for ; Sun, 3 Sep 2000 12:57:04 -0400 (EDT) Message-ID: <39B282EC.2EE4DCC1@mindspring.com> Date: Sun, 03 Sep 2000 12:57:16 -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] CSS vs. Access Control Content-Type: text/plain; charset=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@mindspring.com writes: > > The secure channel is the return path. Plus, when they get your card > > number, a transaction occurs with your bank. And if the encrypted > > journal were to have a timeout mechanism, you would have to employ the > > secure channel again to stimulate another transaction. > > Hmmm... if what you mean by "return path" is that there has to be some > interaction between the subscriber and the publisher at some point, > that seems reasonable, though the interaction could conceivably be > very indirect. (I'm thinking about cases where at least one side of > the interaction goes entirely through intermediaries, as in a public > key infrastructure, without any direct communication). > > But that's only a necessary condition, not sufficient --- there are > any number of things that might be communicated over even a direct > channel (personal preferences, selection of relevant material, etc., > etc.) without having anything to do with access control. > > rst > Right, and CSS does not have this necessary condition. A return path might be used for other purposes, but a return path must be implemented in any per-access control. I propose that this is the functional dividing line between access control versus first sale. mickeym From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 13:26:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31762 for dvd-discuss-outgoing; Sun, 3 Sep 2000 13:26:38 -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 NAA31759 for ; Sun, 3 Sep 2000 13:26:37 -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 NAA02853 for ; Sun, 3 Sep 2000 13:27:16 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA02318; Sun, 3 Sep 2000 13:27:16 -0400 (EDT) Date: Sun, 3 Sep 2000 13:27:16 -0400 (EDT) Message-Id: <200009031727.NAA02318@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B282EC.2EE4DCC1@mindspring.com> References: <39B282EC.2EE4DCC1@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym@mindspring.com writes: > > But that's only a necessary condition, not sufficient --- there are > > any number of things that might be communicated over even a direct > > channel (personal preferences, selection of relevant material, etc., > > etc.) without having anything to do with access control. > > Right, and CSS does not have this necessary condition. A return > path might be used for other purposes, but a return path must be > implemented in any per-access control. I propose that this is the > functional dividing line between access control versus first sale. No --- it's a necessary condition but *not sufficient*. The mere existence of two-way communication does not mean that that communication has anything to do with access control. It could just be user preferences, for example. There are plenty of systems with "return paths", to use your terminology, but no access control at all. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 14:18:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31975 for dvd-discuss-outgoing; Sun, 3 Sep 2000 14:18:23 -0400 Received: from hotmail.com (f121.law9.hotmail.com [64.4.9.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31972 for ; Sun, 3 Sep 2000 14:18:22 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sun, 3 Sep 2000 11:18:31 -0700 Received: from 38.30.238.28 by lw9fd.law9.hotmail.msn.com with HTTP; Sun, 03 Sep 2000 18:18:31 GMT X-Originating-IP: [38.30.238.28] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Sun, 03 Sep 2000 14:18:31 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 03 Sep 2000 18:18:31.0783 (UTC) FILETIME=[5D87AF70:01C015D3] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: > >mickeym@mindspring.com writes: > > > But that's only a necessary condition, not sufficient --- there are > > > any number of things that might be communicated over even a direct > > > channel (personal preferences, selection of relevant material, etc., > > > etc.) without having anything to do with access control. > > > > Right, and CSS does not have this necessary condition. A return > > path might be used for other purposes, but a return path must be > > implemented in any per-access control. I propose that this is the > > functional dividing line between access control versus first sale. > >No --- it's a necessary condition but *not sufficient*. The mere >existence of two-way communication does not mean that that >communication has anything to do with access control. It could just >be user preferences, for example. There are plenty of systems with >"return paths", to use your terminology, but no access control at >all. I'm not completely sure that I agree with mickeym's argeement (not sure I don't either, I need to think harder about it). But, I think he is arguing that the absence of communication from DVD player to copyright owner is "sufficient" evidence to prove that it fails the "necessary condition" that mickeym has suggested for being an effective access control. i.e. all EAC has 2 way com CSS doesn't have 2 way com CSS is not EAC qed _________________________________________________________________________ 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 Sep 3 14:41:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32195 for dvd-discuss-outgoing; Sun, 3 Sep 2000 14:41:19 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA32192 for ; Sun, 3 Sep 2000 14:41:18 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id OAA06212 for ; Sun, 3 Sep 2000 14:41:58 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA03018; Sun, 3 Sep 2000 14:41:57 -0400 (EDT) Date: Sun, 3 Sep 2000 14:41:57 -0400 (EDT) Message-Id: <200009031841.OAA03018@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control 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: > I'm not completely sure that I agree with mickeym's argeement (not > sure I don't either, I need to think harder about it). > But, I think he is arguing that the absence of communication from > DVD player to copyright owner is "sufficient" evidence to prove > that it fails the "necessary condition" that mickeym has suggested > for being an effective access control. Well, he's calling it "the functional dividing line between access control versus first sale". I'm not sure I understand that --- access control is a function of a TPM, and first sale is a legal doctrine --- but it certainly sounds as if he thinks the presence of a "return path", or, as I'd say, two-way communication, *defines* the presence of access control; if you see two-way communication a return path is present. And that's just not true --- there's two-way communication when you fetch pages off any web site, for instance, or get a phone number out of 411, but there is no access control in either case; in fact, in each case, the party giving out the information may have no idea at all who they're giving it to. > all EAC has 2 way com > CSS doesn't have 2 way com > CSS is not EAC > qed That's what it means to be a necessary condition In any case, before spending too much time on this, what's unsatisfactory about the Judiciary report's definition, that something is an effective access control if its effect is that of restricting access to persons who are authorized? As I said, we're probably better off with legal criteria that don't require judges to evaluate subtle technical distinctions about which a plaintiff with ill will can easily blow smoke. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 14:48:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32356 for dvd-discuss-outgoing; Sun, 3 Sep 2000 14:48:51 -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 OAA32353 for ; Sun, 3 Sep 2000 14:48:50 -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 OAA06706 for ; Sun, 3 Sep 2000 14:49:30 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA03068; Sun, 3 Sep 2000 14:49:29 -0400 (EDT) Date: Sun, 3 Sep 2000 14:49:29 -0400 (EDT) Message-Id: <200009031849.OAA03068@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <200009031841.OAA03018@soggy-fibers.ai.mit.edu> References: <200009031841.OAA03018@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: > Well, he's calling it "the functional dividing line between access > control versus first sale". I'm not sure I understand that --- access > control is a function of a TPM, and first sale is a legal doctrine --- > but it certainly sounds as if he thinks the presence of a "return > path", or, as I'd say, two-way communication, *defines* the presence > of access control; if you see two-way communication a return path is > present. Errrmmm... that was "if you see two-way communication, *access control*" is present. The typo monster strikes again. > And that's just not true See previous examples --- e.g. 411, or most web sites, which hand out information as part of a protocol invovlving two-way communication ("a return path") without knowing the identity of the people that they're giving it to, or performing any meaningful access check. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 14:57:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32415 for dvd-discuss-outgoing; Sun, 3 Sep 2000 14:57:56 -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 OAA32412 for ; Sun, 3 Sep 2000 14:57:55 -0400 Received: from swbell.net ([64.216.210.188]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0B0041AQW6SP@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sun, 3 Sep 2000 13:48:06 -0500 (CDT) Date: Sun, 03 Sep 2000 13:40:01 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B29B01.468451B8@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: <200009012311.TAA25051@soggy-fibers.ai.mit.edu> <200009021817.OAA28070@soggy-fibers.ai.mit.edu> <39B14E02.2DF572B1@mit.edu> <200009021911.PAA28452@soggy-fibers.ai.mit.edu> <39B15749.D5118339@mit.edu> <200009021946.PAA28888@soggy-fibers.ai.mit.edu> <20000902171315.B19559@eldritchpress.org> <200009031248.IAA01410@soggy-fibers.ai.mit.edu> <39B27237.AEE12489@swbell.net> <200009031616.MAA01941@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > tjolley@swbell.net writes: > > I read 1201(c)(3) as allowing manufacturers of black boxes to be free Change black box to DVD players. > > to use whatever parts they want to use. It doesn't say they can > > "ignore" a technological measure. Ignoring, as you described above, > > doesn't mean you can avoid the prohibitions of subsection (a)(2) or > > (b)(1). This is probably for manufacturers that don't want to license > > DVDCCA but want to build a player that can only play DVDs that don't Change DVDCCA to CSS. > > use CSS. > > Ummm... could you say what you mean by "black box"? Throughout the > legislative history, that term is taken to be synonymous with > "circumvention device" --- illegitimate by definition. Sorry for the confusion. > > This is very different from the engineer's usage of "a device that > performs a specific function in some unspecified way --- never mind > what's inside it". I just read (c)(3) as allowing the manufacture of DVD players that aren't tied to using a component ONLY from a certain manufacturer. It also reads, to me, that a player doesn't require a CSS license from DVDCCA as long as the player doesn't fall within the prohibitions of subsection (a)(2) and (b)(1). Reading Kaplan's opinion sounded like a legal DVD player MUST have a CSS license ONLY from DVDCCA which goes against (C)(3). DeCSS does what CSS does in its normal operation and should be available for use in any DVD player. DeCSS is a functional substitute for CSS. > But we won't turn them into engineers any time > soon... > > rst > Nor turn me into a lawyer. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 15:28:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32596 for dvd-discuss-outgoing; Sun, 3 Sep 2000 15:28:52 -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 PAA32593 for ; Sun, 3 Sep 2000 15:28:43 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id MAA11031 for ; Sun, 3 Sep 2000 12:27:18 -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 smtpdAAA45aqyv; Sun Sep 3 12:27:11 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 MAA00728 for ; Sun, 3 Sep 2000 12:28:41 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Sun, 3 Sep 2000 11:52:56 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00090312283200.08840@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, 03 Sep 2000, Harold Eaton wrote: > Robert S. Thau wrote: > > > >mickeym@mindspring.com writes: > > > > But that's only a necessary condition, not sufficient --- there are > > > > any number of things that might be communicated over even a direct > > > > channel (personal preferences, selection of relevant material, etc., > > > > etc.) without having anything to do with access control. > > > > > > Right, and CSS does not have this necessary condition. A return > > > path might be used for other purposes, but a return path must be > > > implemented in any per-access control. I propose that this is the > > > functional dividing line between access control versus first sale. > > > >No --- it's a necessary condition but *not sufficient*. The mere > >existence of two-way communication does not mean that that > >communication has anything to do with access control. It could just > >be user preferences, for example. There are plenty of systems with > >"return paths", to use your terminology, but no access control at > >all. > > I'm not completely sure that I agree with mickeym's argeement (not > sure I don't either, I need to think harder about it). > But, I think he is arguing that the absence of communication from > DVD player to copyright owner is "sufficient" evidence to prove > that it fails the "necessary condition" that mickeym has suggested > for being an effective access control. Dongles. Two-way communication isn't necessary when you can distribute a difficult-to-reproduce key which is validated (e.g. by signing) by the freely-available software. There may be other ways to implement access control without two-way communication without a physical device being required. Two-way communication is slightly different. The idea there isn't exactly access control, but access verification. When the purchaser orders a customized copy of the product he's making it possible for the provider to trace illegitimate copies back to her. This *can* be done with encryption (an encrypted copy and a copy-specific key), but this is a stupid way to do things, mainly because once the pirate gets a plaintext version of the work he can copy it forever and not be traced. The correct way to do this is watermarking. Not in the SDMI sense, where they are trying to institute end-to-end access control and are calling it watermarking to disguise their intentions. True watermarking is more along the lines of steganography -- no two copies alike but all identical from a human perspective. Anyone whose works are being plagiarized can trace the bootleg copies back to the source and use (gasp!) legal means to nail the perp. Copyright law in its original intent, what a concept. Of course, neither works too well to prevent me from giving my mother a copy to try out, and perhaps worse it _does_ require ongoing efforts on the part of the publisher to make custom copies and keep track of purchasers. Which costs money. Which they don't want to spend. Tough luck. I refuse to trade off fundamental rights to save them small change. I remain convinced that George O. Smith is absolutely required reading for anyone attempting to discuss property issues in cyberspace. -- | 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 Sep 3 16:13:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA01037 for dvd-discuss-outgoing; Sun, 3 Sep 2000 16:13:57 -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 QAA01034 for ; Sun, 3 Sep 2000 16:13:51 -0400 Received: from aragorn.start-up.com.ar (aragorn [192.168.0.6]) by gandalf.start-up.com.ar (8.9.3/8.9.3) with ESMTP id RAA08517 for ; Sun, 3 Sep 2000 17:24:31 -0300 Received: (from chalito@localhost) by aragorn.start-up.com.ar (8.9.3/8.9.3) id RAA07711 for dvd-discuss@eon.law.harvard.edu; Sun, 3 Sep 2000 17:24:08 -0400 X-Authentication-Warning: aragorn.start-up.com.ar: chalito set sender to andres@start-up.com.ar using -f Date: Sun, 3 Sep 2000 17:24:07 -0400 From: Andres Tarrio To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000903172407.A7692@start-up.com.ar> References: <6a.645ef77.26e26d72@cs.com> Mime-Version: 1.0 Content-Type: multipart/signed; micalg=pgp-md5; protocol="application/pgp-signature"; boundary="0F1p//8PRICkK4MW" Content-Disposition: inline User-Agent: Mutt/1.2.4i In-Reply-To: <6a.645ef77.26e26d72@cs.com>; from Consilgere@cs.com on Sat, Sep 02, 2000 at 10:49:22AM -0400 X-Useless-Header: MS-Outlook sucks. get a real mail reader =P X-Operating-System: Linux aragorn.start-up.com.ar 2.2.14 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --0F1p//8PRICkK4MW Content-Type: text/plain; charset=iso-8859-1 Content-Disposition: inline Content-Transfer-Encoding: quoted-printable On Sat, Sep 02, 2000 at 10:49:22AM -0400, Consilgere@cs.com wrote: > In a message dated 9/1/00 11:16:19 PM Eastern Daylight Time,=20 > jerwin@osf1.gmu.edu writes: >=20 > << Intention is the operative here. Obviously, the Linux operating system= has > several applications and other tools that could be used in "theft of > services or "computer intrusion". >> > So if I'm accused of breaking into some PC somewhere using Back Orifice, = and=20 > the cops come and find the Back Orifice source on my PC, it wouldn't fall= =20 > under any posession law because the source is protected speech? I really= =20 > don't think that would be practical. IANAL, but shouldn't you be accused of breaking into that pc, and not for p= ossessing BackOrifice? The fact that you had BO installed in your pc just makes it easier to prove that it was you who broke into mr. X's pc. It's not *having* BO installed illegal, but rather using it to gain unauthorized access to someone else's computer. You having it installed on you PC wouyld only *help* proving that you were the perpetrator, but of course it doesn't really prove anything. please excuse my poor english. --=20 Andr=E9s Tarr=EDo --0F1p//8PRICkK4MW Content-Type: application/pgp-signature Content-Disposition: inline -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5ssF0MtYwRGSTr/URAgzDAKDrNXTSDTE9T3rcAwCXmSLbVYESnQCg1OMW qHA7956BXKIb+wrV8cQs2gg= =HO3u -----END PGP SIGNATURE----- --0F1p//8PRICkK4MW-- From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 18:10:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01731 for dvd-discuss-outgoing; Sun, 3 Sep 2000 18:10:47 -0400 Received: from web118.yahoomail.com (web118.yahoomail.com [205.180.60.99]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA01728 for ; Sun, 3 Sep 2000 18:10:47 -0400 Received: (qmail 19876 invoked by uid 60001); 3 Sep 2000 22:11:26 -0000 Message-ID: <20000903221126.19875.qmail@web118.yahoomail.com> Received: from [216.165.5.138] by web118.yahoomail.com; Sun, 03 Sep 2000 15:11:26 PDT Date: Sun, 3 Sep 2000 15:11:26 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] DeCSS 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 http://www.salon.com/tech/log/2000/09/01/decss_australia/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 Sun Sep 3 19:46:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01962 for dvd-discuss-outgoing; Sun, 3 Sep 2000 19:46:41 -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 TAA01959 for ; Sun, 3 Sep 2000 19:46:40 -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 TAA20321 for ; Sun, 3 Sep 2000 19:47:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA05372; Sun, 3 Sep 2000 19:47:19 -0400 (EDT) Date: Sun, 3 Sep 2000 19:47:19 -0400 (EDT) Message-Id: <200009032347.TAA05372@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <00090312283200.08840@frankenstein.lumbercartel.com> References: <00090312283200.08840@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: > I remain convinced that George O. Smith is absolutely required reading > for anyone attempting to discuss property issues in cyberspace. In case I'm not the only one on the list who's wondering --- who's George O. Smith, and what's his best work? rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 20:04:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02106 for dvd-discuss-outgoing; Sun, 3 Sep 2000 20:04:11 -0400 Received: from mail1.registeredsite.com (root@mail1.registeredsite.com [209.35.159.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA02103 for ; Sun, 3 Sep 2000 20:04:10 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by mail1.registeredsite.com (8.9.3/8.9.3) with ESMTP id TAB18784 for ; Sun, 3 Sep 2000 19:06:31 -0400 Received: from [24.14.203.65] [24.14.203.65] by mail.nearside.com with ESMTP (SMTPD32-6.00) id A719213E00C6; Sun, 03 Sep 2000 20:04:41 -0400 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Sun, 03 Sep 2000 20:04:47 -0400 Subject: Re: [dvd-discuss] DeCSS News From: Jed Borod To: Message-ID: In-Reply-To: <20000903221126.19875.qmail@web118.yahoomail.com> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu on 9/3/00 6:11 PM, Tuyet A. Ngoc Tran wrote: > http://www.salon.com/tech/log/2000/09/01/decss_australia/index.html But Bayley's decision to remove DeCSS will probably end up looking less like an admission of defeat and more like a shift in strategy -- a shift away from head-to-head combat and toward guerilla tactics. For example, while DeCSS will come down, 2600 Australia may simply "alter the code so that it cannot perform an act of circumvention," Bayley says. This could be accomplished by pulling out a key line of the code and publishing it elsewhere. Or, Bayley may simply distribute DeCSS in a form that is not able to be immediately used by a computer. The idea: "Find ways to be smarter about how to get the information out there in one form or another without being in the firing line of the law in particular," he says. Could 2600 post the decss source code if lines were missing? What about if lines were commented out, rendering the program useless (at least until someone replaced the /*s)? -- Jed Borod From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 3 20:23:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA02268 for dvd-discuss-outgoing; Sun, 3 Sep 2000 20:23:22 -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 UAA02265 for ; Sun, 3 Sep 2000 20:23:21 -0400 Received: by aero.org id <17096-7>; Sun, 3 Sep 2000 17:23:58 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa17777; Sun Sep 3 17:23:47 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sun, 3 Sep 2000 17:23:11 -0700 Subject: Re: [dvd-discuss] Winning and losing 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 09/03/2000 05:23:10 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sun, 3 Sep 2000 17:23:48 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu YES...the problem at hand is how to get into the future as painlessly as possible ghio+_nospam_+@altavista.ne t (Matthew Ghio) To: Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Winning and losing arvard.edu 09/02/2000 02:11 PM Please respond to dvd-discuss John Dempsey wrote: >I consider it very plausable that deCSS will be in a player--perhaps a >pirate's toolkit app--illegal but readily available. AOL killed Gnutella >but it's thriving. RIAA will probably kill Napster but the Napster protocol >(related in name and function only) has about twenty variant servers so far. >It is a blow to freedom when application of reverse-engineered knowledge is >illegal. It's a much bigger blow the day it's impossible. And *that* day >is not on the horizon. All this court stuff is just bailing water for these >industries no matter who wins. They lost and we won the day the key leaked. >It's all downhill from there. So turn that frown upside down! Rejoice! Of course DeCSS players are available, and will continue to be. You're missing the point. Everyone knows that DeCSS, open standards, etc, will win eventually. The problem we face is how to mitigate the huge amount of damage that the MPAA et al is trying to inflict in the process. If the MPAA wins this one, they will be emboldened to create a new, more extensive protection system, which will include more restrictions, more player incompatibilities, and more consumer backlash. That will make it more difficult and expensive to legally purchase and use copyrighted content, which will lead to more illegal copying. Then the MPAA will bitch and complain about this new "piracy" problem - a problem which they themselves created. A vicious downward spiral. The MPAA doesn't yet realize how much damage they are trying to inflict on themselves (and everyone else). They're going to figure it out sooner or later. Either they can learn the easy way, which is that the court upholds the fair use doctrine, as in the Sony Betamax case, and a new market for home video develops, or they can learn it the hard way - the way the music industry had to have reality come bash them on the head after they killed DAT with too many copy-protection restrictions, ripped people off, and now must face MP3-trading and antitrust lawsuits. Let's hope that the court of appeals has some sense, and that the MPAA doesn't force everyone to do this the hard way. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 00:05:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03330 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:05:09 -0400 Received: from imo-r13.mx.aol.com (imo-r13.mx.aol.com [152.163.225.67]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA03327 for ; Mon, 4 Sep 2000 00:05:07 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r13.mx.aol.com (mail_out_v28.15.) id x.34.a00d4d4 (8415) for ; Mon, 4 Sep 2000 00:05:04 -0400 (EDT) Message-ID: <34.a00d4d4.26e4796f@cs.com> Date: Mon, 4 Sep 2000 00:05:03 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/3/00 2:00:01 AM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << On the contrary, we're arguing that the words that we write are NO DIFFERENT from the words written by any other writer. (Gosh, what a radical notion!) But they're not trying to regulate the words we write. They're trying to regulate the programs we write, some of which (but none that i've ever seen addressed) can destroy property. The only way to destroy property with a hard copy of the Anarchist's Cookbook is to use it as a blunt instrument. So the knowledge contained in the book is useless unless applied. And I see the point alot of people are making. Yes, in the physical world, speech is kept sacred, even if the information in that speech is dangerous to someone or something. But there are physical barriers that separate the knowledge from the implementation. I can describe how to build a grenade launcher. That's legal. Giving someone a grenade launcher is illegal. That's not speech. And any jack-in-the-box can tell the difference. And that fact, that information had to be physically implemented to be of any use in most if not all cases, was impossible to deny. Knowing how to fish didn't put dinner on the table. But in our world, the only things that "exist" are computational models for those things we already understand. Society is starting to give those models value, thus lending credence to the idea that they truly exist. And the descriptions of our models that serve only to educate people are quickly becoming entangled with the descriptions computers use to run the simulations. In other words, some of the things we used to be able to differentiate between can no longer be separated. Educating someone has to how an item works has become almost synonymous with providing the means to create, copy, and/or destroy that item. Seeing these differences are getting so blurry, doesn't it make sense to step back and either see how to re-establish that line, or find an acceptable alternative line. Why must we jump to the extreme that all software is free speech and can never be illegalized? From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 00:23:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03514 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:23:15 -0400 Received: from imo-d05.mx.aol.com (imo-d05.mx.aol.com [205.188.157.37]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA03511 for ; Mon, 4 Sep 2000 00:23:13 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d05.mx.aol.com (mail_out_v28.15.) id x.39.9af04d7 (4227) for ; Mon, 4 Sep 2000 00:23:28 -0400 (EDT) Message-ID: <39.9af04d7.26e47dbf@cs.com> Date: Mon, 4 Sep 2000 00:23:27 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/3/00 2:00:14 AM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << Where are those safeguards in the writings of Thomas Jefferson, who was also writing tools? >> There is absolutely no way you can equate DeCSS and Jefferson's writings. Jefferson's writings were almost entirely political, which courts have consistently ruled is always allowed with time-place-manner restrictions. DeCSS has no more political value than a joint at a legalize pot rally. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 00:23:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03522 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:23:51 -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 AAA03519 for ; Mon, 4 Sep 2000 00:23:50 -0400 Received: from Jana-Server ([209.86.147.250]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id AAA04195 for ; Mon, 4 Sep 2000 00:24:29 -0400 (EDT) Message-ID: <39B3240D.523F3390@mindspring.com> Date: Mon, 04 Sep 2000 00:24:45 -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: Re: [dvd-discuss] CSS vs. Access Control Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > >No --- it's a necessary condition but *not sufficient*. The mere > > >existence of two-way communication does not mean that that > > >communication has anything to do with access control. It could just > > >be user preferences, for example. There are plenty of systems with > > >"return paths", to use your terminology, but no access control at > > >all. > > > > I'm not completely sure that I agree with mickeym's argeement (not > > sure I don't either, I need to think harder about it). > > But, I think he is arguing that the absence of communication from > > DVD player to copyright owner is "sufficient" evidence to prove > > that it fails the "necessary condition" that mickeym has suggested > > for being an effective access control. > > Dongles. > > Two-way communication isn't necessary when you can distribute a > difficult-to-reproduce key which is validated (e.g. by signing) by the > freely-available software. There may be other ways to implement > access control without two-way communication without a physical > device being required. > Hmmm, you're right. I never did like dongles, now I guess I see why. So my disagreement with the dvd setup should also apply to dongles, I think. Is a dongle then described as a physical object that represents local authority? Is a dongle an effective access control measure? In the case of dvd, isn't the player the dongle? > Two-way communication is slightly different. The idea there isn't > exactly access control, but access verification. When the purchaser > orders a customized copy of the product he's making it possible for > the provider to trace illegitimate copies back to her. This *can* be > > done with encryption (an encrypted copy and a copy-specific key), > but this is a stupid way to do things, mainly because once the pirate > gets a plaintext version of the work he can copy it forever and not be > traced. > > The correct way to do this is watermarking. Not in the SDMI sense, where > they are trying to institute end-to-end access control and are calling it > watermarking to disguise their intentions. True watermarking is more along > the lines of steganography -- no two copies alike but all identical from a > human perspective. Anyone whose works are being plagiarized can trace > the bootleg copies back to the source and use (gasp!) legal means to nail > the perp. Copyright law in its original intent, what a concept. > > Of course, neither works too well to prevent me from giving my mother a > copy to try out, and perhaps worse it _does_ require ongoing efforts on the > part of the publisher to make custom copies and keep track of purchasers. > Which costs money. Which they don't want to spend. > > Tough luck. > I refuse to trade off fundamental rights to save them small change. > > I remain convinced that George O. Smith is absolutely required reading > for anyone attempting to discuss property issues in cyberspace. > recommend something? > -- > | 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 Sep 4 00:39:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03784 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:39:42 -0400 Received: from imo-r15.mx.aol.com (imo-r15.mx.aol.com [152.163.225.69]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA03781 for ; Mon, 4 Sep 2000 00:39:42 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r15.mx.aol.com (mail_out_v28.15.) id x.f8.26eeef4 (4227) for ; Mon, 4 Sep 2000 00:39:48 -0400 (EDT) Message-ID: Date: Mon, 4 Sep 2000 00:39:47 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/3/00 6:09:49 AM Eastern Daylight Time, tom@lemuria.org writes: << it's just that those [illegalized tools] I'm aware of endanger human life.>> Well in a country where the original "inalienable rights" were life, liberty, and _property_, why couldn't a tool that endangers any of those 3 rights be illegal? >> You seem to say you can't illegalize DeCSS because you can't illegalize >> software or source code. >> > yes, I say that. software is too fluent. you can't outlaw something that > can change faster than you can analyze it Can't as in are physically unable to? not a chance! There's a cute little ditty about a congressional committee meeting on Napster, where someone told Orrin Hatch he had committed a crime by downloading Higher by Creed, and Hatch's response went something like: "No, we didnt committ a crime. We did this for 'governmental and educational purposes'. And seeing we're the ones who decide what that means... " Can't as in they shouldn't? I guess that's why we're here talking. I personally wouldn't mind a law saying that the software that controls my traffic lights has to be D.O.T. tested and approved... it'd prolly make for safer streets... and I certainly don't want a company avoiding that rule hiding behind the First Amendment. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 00:52:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03924 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:52:17 -0400 Received: from imo-r02.mx.aol.com (imo-r02.mx.aol.com [152.163.225.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA03921 for ; Mon, 4 Sep 2000 00:52:17 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r02.mx.aol.com (mail_out_v28.15.) id x.a2.9141552 (4227) for ; Mon, 4 Sep 2000 00:52:22 -0400 (EDT) Message-ID: Date: Mon, 4 Sep 2000 00:52:22 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/3/00 4:16:19 PM Eastern Daylight Time, andres@start-up.com.ar writes: << IANAL, but shouldn't you be accused of breaking into that pc, and not for possessing BackOrifice? >> In Massachusetts it's just a gimmick to drive the sentence up a few months or years or whatever. But why is it ok for the physical world to have laws like that (and afaik, they've been challenged and upheld) and its not ok for our world? <> No. According to the law I cited, possession of the tool is a crime in and of itself. Granted with those sort of programs we could get into other constitutional issues... but back on topic, its one of those crimes they only charge you with when they've got you for the B & E associated with it. <> Well it's no smoking gun, but its no different than a blood type test as far as proof goes. And I'm sure you know what they say about too many coincidences. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 00:56:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04054 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:56:56 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA04051 for ; Mon, 4 Sep 2000 00:56:54 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id WAA07559 for dvd-discuss@eon.law.harvard.edu; Sun, 3 Sep 2000 22:05:14 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 3 Sep 2000 22:03:03 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <34.a00d4d4.26e4796f@cs.com> In-Reply-To: <34.a00d4d4.26e4796f@cs.com> MIME-Version: 1.0 Message-Id: <0009032205102F.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 I understand what you're saying, and I think your point is correct insofar as the facts are concerned, but I draw different conclusions. I think that this is one of the first instances of information (speech) and the means to cause an action being indistinguishable. I don't think we should draw another line. I think that we as a people should just accept the nature of information and move on. --james (Russell) On Sun, 03 Sep 2000, you wrote: > In a message dated 9/3/00 2:00:01 AM Eastern Daylight Time, > dcs@mailhost.lumbercartel.com writes: > > << On the contrary, we're arguing that the words that we write are NO > DIFFERENT > from the words written by any other writer. (Gosh, what a radical notion!) > > But they're not trying to regulate the words we write. They're trying to > regulate the programs we write, some of which (but none that i've ever seen > addressed) can destroy property. The only way to destroy property with a > hard copy of the Anarchist's Cookbook is to use it as a blunt instrument. So > the knowledge contained in the book is useless unless applied. > And I see the point alot of people are making. Yes, in the physical world, > speech is kept sacred, even if the information in that speech is dangerous to > someone or something. But there are physical barriers that separate the > knowledge from the implementation. I can describe how to build a grenade > launcher. That's legal. Giving someone a grenade launcher is illegal. > That's not speech. And any jack-in-the-box can tell the difference. And > that fact, that information had to be physically implemented to be of any use > in most if not all cases, was impossible to deny. Knowing how to fish didn't > put dinner on the table. > But in our world, the only things that "exist" are computational models for > those things we already understand. Society is starting to give those models > value, thus lending credence to the idea that they truly exist. And the > descriptions of our models that serve only to educate people are quickly > becoming entangled with the descriptions computers use to run the > simulations. In other words, some of the things we used to be able to > differentiate between can no longer be separated. Educating someone has to > how an item works has become almost synonymous with providing the means to > create, copy, and/or destroy that item. Seeing these differences are getting > so blurry, doesn't it make sense to step back and either see how to > re-establish that line, or find an acceptable alternative line. Why must we > jump to the extreme that all software is free speech and can never be > illegalized? -- 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 Mon Sep 4 00:59:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04111 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:59:36 -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 AAA04104 for ; Mon, 4 Sep 2000 00:59:35 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id VAA10165 for ; Sun, 3 Sep 2000 21:59:03 -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 smtpdAAAPXaO0t; Sun Sep 3 21:58:55 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 WAA01925 for ; Sun, 3 Sep 2000 22:00:03 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 3 Sep 2000 21:55:05 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39.9af04d7.26e47dbf@cs.com> In-Reply-To: <39.9af04d7.26e47dbf@cs.com> MIME-Version: 1.0 Message-Id: <00090321564300.09185@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, 03 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/3/00 2:00:14 AM Eastern Daylight Time, > dcs@mailhost.lumbercartel.com writes: > > << Where are those safeguards in the writings of Thomas Jefferson, who was > also writing tools? >> > > There is absolutely no way you can equate DeCSS and Jefferson's writings. > Jefferson's writings were almost entirely political, Bzzzzzzzzzzzt! Thanks for playing, and as a consolation prize you win a biography of one of the 18th Century's greatest men of letters, inventors, architects, etc. -- | 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 Sep 4 00:59:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04110 for dvd-discuss-outgoing; Mon, 4 Sep 2000 00:59:36 -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 AAA04105 for ; Mon, 4 Sep 2000 00:59:35 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id VAA17062 for ; Sun, 3 Sep 2000 21:58:11 -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 smtpdAAAspaOmH; Sun Sep 3 21:58:04 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 WAA01928 for ; Sun, 3 Sep 2000 22:00:04 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Sun, 3 Sep 2000 21:57:19 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39B3240D.523F3390@mindspring.com> In-Reply-To: <39B3240D.523F3390@mindspring.com> MIME-Version: 1.0 Message-Id: <00090322000201.09185@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, 03 Sep 2000, mickeym wrote: > > > >No --- it's a necessary condition but *not sufficient*. The mere > > > >existence of two-way communication does not mean that that > > > >communication has anything to do with access control. It could just > > > >be user preferences, for example. There are plenty of systems with > > > >"return paths", to use your terminology, but no access control at > > > >all. > > > > > > I'm not completely sure that I agree with mickeym's argeement (not > > > sure I don't either, I need to think harder about it). > > > But, I think he is arguing that the absence of communication from > > > DVD player to copyright owner is "sufficient" evidence to prove > > > that it fails the "necessary condition" that mickeym has suggested > > > for being an effective access control. > > > > Dongles. > > > > Two-way communication isn't necessary when you can distribute a > > difficult-to-reproduce key which is validated (e.g. by signing) by the > > freely-available software. There may be other ways to implement > > access control without two-way communication without a physical > > device being required. > > > > Hmmm, you're right. I never did like dongles, now I guess I see why. So > my disagreement with the dvd setup should also apply to dongles, I > think. > > Is a dongle then described as a physical object that represents local > authority? Fits like a glove. > Is a dongle an effective access control measure? Let's propose that in the context of the DMCA as properly understood, the dongle is the _archetypical_ access control. > In the case of dvd, isn't the player the dongle? Nope. You don't mass-produce identical dongles; that would totally defeat their purpose. Each dongle is unique, just as a key is. Otherwise it doesn't identify the people who are authorized to use software package X but not package Y. -- | 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 Sep 4 01:03:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA04235 for dvd-discuss-outgoing; Mon, 4 Sep 2000 01:03:25 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA04232 for ; Mon, 4 Sep 2000 01:03:24 -0400 Received: from 216-164-136-197.s197.tnt4.lnhva.md.dialup.rcn.com ([216.164.136.197]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13VoQO-000251-00 for dvd-discuss@eon.law.harvard.edu; Mon, 04 Sep 2000 01:04:05 -0400 Date: Mon, 04 Sep 2000 01:03:22 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control 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, 04 Sep 2000, mickeym wrote: > Date: Mon, 04 Sep 2000 00:24:45 -0400 > To: dvd-discuss@eon.law.harvard.edu > From: mickeym > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] CSS vs. Access Control > > Hmmm, you're right. I never did like dongles, now I guess I see why. So > my disagreement with the dvd setup should also apply to dongles, I > think. > > Is a dongle then described as a physical object that represents local > authority? > > Is a dongle an effective access control measure? > > In the case of dvd, isn't the player the dongle? > Basically, a dongle is a piece of the software program implemented in hardware. Since a properly designed dongle is difficult (but not impossible) to reverse engineer, any software copies a user makes will be nonusable. The software is designed to poll the dongle at various intervals and determine if, in fact, it has been installed on a valid machine. (This (theoretically) stops people in an office starting up the program using one "shared" dongle. ) In terms of the DVD, the closest analogue to the dongle is the key block sectors. It is (theoretically) difficult to copy, and the presence of this key is required to decrypt the disc and play cotent, in the same way that security code from a dongle is necessary to use "protected" software. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 01:39:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA04467 for dvd-discuss-outgoing; Mon, 4 Sep 2000 01:39:36 -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 BAA04445 for ; Mon, 4 Sep 2000 01:39:27 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id WAA16540 for ; Sun, 3 Sep 2000 22:38:53 -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 smtpdAAAwLaqsG; Sun Sep 3 22:38:46 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 WAA02145 for ; Sun, 3 Sep 2000 22:38:55 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Sun, 3 Sep 2000 22:00:13 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <00090312283200.08840@frankenstein.lumbercartel.com> <200009032347.TAA05372@soggy-fibers.ai.mit.edu> In-Reply-To: <200009032347.TAA05372@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <00090322043602.09185@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, 03 Sep 2000, Robert S. Thau wrote: > D. C. Sessions writes: > > I remain convinced that George O. Smith is absolutely required reading > > for anyone attempting to discuss property issues in cyberspace. > > In case I'm not the only one on the list who's wondering --- who's > George O. Smith, and what's his best work? Oh dear. Before trying to discuss the economics, politics, and ethics of cyberspace it's REALLY a good idea to read _Venus_Equilateral_. It's a series of short stories connected into a more-or-less unified whole. The critical story is _Pandora's_Millions_, but you probably need to read them in sequence to appreciate it. The astonishing thing is that it was written half a century ago, and is only now being appreciated for its insight into current events. Bear with the (how else?) dated technology and just read for the human element. Some great geek humor, too, complete with PHBs. -- | 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 Sep 4 01:39:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA04463 for dvd-discuss-outgoing; Mon, 4 Sep 2000 01:39:30 -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 BAA04444 for ; Mon, 4 Sep 2000 01:39:27 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id WAA16545 for ; Sun, 3 Sep 2000 22:38:54 -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 smtpdAAAc0a4sG; Sun Sep 3 22:38:47 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 WAA02264 for ; Sun, 3 Sep 2000 22:39:55 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 3 Sep 2000 22:04:43 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <34.a00d4d4.26e4796f@cs.com> In-Reply-To: <34.a00d4d4.26e4796f@cs.com> MIME-Version: 1.0 Message-Id: <00090322385103.09185@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, 03 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/3/00 2:00:01 AM Eastern Daylight Time, > dcs@mailhost.lumbercartel.com writes: > > << On the contrary, we're arguing that the words that we write are NO > DIFFERENT > from the words written by any other writer. (Gosh, what a radical notion!) > > But they're not trying to regulate the words we write. Coulda fooled me. The case in point isn't about whether DeCSS was written on a M1A1, it's about the words themselves. And the fact that those words are in the language of cryptographic mathematics no more removes them from strict scrutiny than if they were written in the languages of surgery, music, or law. > They're trying to > regulate the programs we write, And all a program is is a description of data and operations on it. The stuff of thought itself. Words. > some of which (but none that i've ever seen > addressed) can destroy property. You believe in magic? That writing words on paper can directly change the real world? They burn people who do THAT at the stake. > The only way to destroy property with a > hard copy of the Anarchist's Cookbook is to use it as a blunt instrument. Which is much easier to do than with a three-page copy of DeCSS. About all you can do with that is get a paper cut. Your point? .. So > the knowledge contained in the book is useless unless applied. Hold that thought. > And I see the point alot of people are making. Yes, in the physical world, > speech is kept sacred, even if the information in that speech is dangerous to > someone or something. But there are physical barriers that separate the > knowledge from the implementation. Hold that thought. Ponder it deeply. > I can describe how to build a grenade > launcher. That's legal. Giving someone a grenade launcher is illegal. > That's not speech. And any jack-in-the-box can tell the difference. And > that fact, that information had to be physically implemented to be of any use > in most if not all cases, was impossible to deny. Knowing how to fish didn't > put dinner on the table. Breathe deeply and slowly. > But in our world, the only things that "exist" are computational models for > those things we already understand. Society is starting to give those models > value, You historical perspective is dangerously shallow. Look into the history of loom cards. > thus lending credence to the idea that they truly exist. Thoughts have always existed. At least to some of us, they have always had value. Some, perhaps, valued them more than others. But a great deal of the US Constitution deals with the value of thought both in regards to preserving it from hindrance and in regards (e.g. the copyright & patent clause) to ensuring its dissemination, preservation, and compensation. > And the > descriptions of our models that serve only to educate people are quickly > becoming entangled with the descriptions computers use to run the > simulations. In other words, some of the things we used to be able to > differentiate between can no longer be separated. OK, so technology has continued to reduce the barrier between thought and deed. You think that domestication, the wheel, the steam engine, electricity, etc. didn't reduce the barrier between thought and deed? The day will soon enough come that machines will be able to respond directly to human speech. When that day comes, will you tell us that freedom of speech and the press are obsolete? > Educating someone has to > how an item works has become almost synonymous with providing the means to > create, copy, and/or destroy that item. Power and responsibility. There's always a human in the loop somewhere, a moral agent. Lower the barrier between thought and action enough and you're going to have to decide between allowing the people to posess dangerous knowledge (and take responsibility for what they do with it) or protect us from ourselves by policing thoughts. I know not what course others may take; but as for me, Patrick Henry said it. > Seeing these differences are getting > so blurry, doesn't it make sense to step back and either see how to > re-establish that line, or find an acceptable alternative line. Why must we > jump to the extreme that all software is free speech and can never be > illegalized? Because information is information. Bits is bits. Photon, charge, flux, inkdrop, acoustic modulation, or synaptic coding is beside the point. They interchange readily today and more readily tomorrow, by the same argument that you use to suggest that freedom of speech and publication are out of date. Call it code, call it speech, call it writing, or call it knowledge -- it doesn't matter, it's the stuff of thought itself exactly as much as poetry, Proverbs, or Paine. Those who trade an essential liberty for a little temporary permission to be entertained .... -- | 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 Sep 4 02:46:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA04729 for dvd-discuss-outgoing; Mon, 4 Sep 2000 02:46:35 -0400 Received: from hotmail.com (f40.law9.hotmail.com [64.4.9.40]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA04726 for ; Mon, 4 Sep 2000 02:46:34 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sun, 3 Sep 2000 23:46:44 -0700 Received: from 141.156.126.102 by lw9fd.law9.hotmail.msn.com with HTTP; Mon, 04 Sep 2000 06:46:44 GMT X-Originating-IP: [141.156.126.102] From: "Richard Bowers" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Mon, 04 Sep 2000 02:46:44 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 04 Sep 2000 06:46:44.0473 (UTC) FILETIME=[E3A88E90:01C0163B] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: "Robert S. Thau" >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: [dvd-discuss] CSS vs. Access Control >Date: Sat, 2 Sep 2000 13:09:24 -0400 (EDT) > >Robert S. Thau writes: > > In any case, it is common knowledge (described in any elementary > > textbook on the subject) that cryptographic techniques have numerous > > applications which have nothing at all to do with access control; for > > example, they may be used to allow a third party to verify that a > > public document such as a press release was actually written by the > > purported author, and not an impostor. > >D.C. Sessions points out that digital signature laws might be another >way to establish this point. (I'd reply to his message directly, but >it hasn't reached me yet --- I can see it in the archive, which I was >flipping through for other reasons. Weird...). > >That's certainly a possibility, but I don't know a heck of a lot about >those laws. Most discussion I've seen of them stresses the use of >digital signatures in private transactions between a buyer and a >seller; that's not access control specifically, but it doesn't have >quite the same "not access control, *obviously*" punch as signing a >public document. If the law explicitly contemplates such uses, that's >great, of course. > According to CACM and Slashdot, the law doesn't apply to digital signatures; it applies to "electronic" signatures, defined to include mouse-clicks on shrink-wrap licenses and other non-encryption-related items. IIRC, Clinton signed the bill on paper, then used a biometric device to sign it with his thumb. This bill is probably one that we'll start hearing more of, as people accidently sign away all of their rights with a mouse click and find the law actually enforcing the agreement. I don't think its something we want to bring up on our side. _________________________________________________________________________ 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 Mon Sep 4 03:00:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA04875 for dvd-discuss-outgoing; Mon, 4 Sep 2000 03:00:37 -0400 Received: from kruuna.Helsinki.FI (sendmail@kruuna.helsinki.fi [128.214.205.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA04872 for ; Mon, 4 Sep 2000 03:00:36 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e8471FF06586 for ; Mon, 4 Sep 2000 10:01:15 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 4 Sep 2000 10:01:14 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In-Reply-To: <46.a25dc74.26e30335@cs.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 2 Sep 2000 Consilgere@cs.com wrote: >Not that I havent done this before, but I disagree. Ireally don't thinks >that an accurate definition of technology. Technology is an exploitation of >knowledge, but you really can't say they're synonyms. You have declarative knowledge and procedural knowledge - the what and the how. The how is technology, the what is science. Both are knowledge. An application of technology gives you actual devices. But those are just the endpoint of the process, gadgets produced by a creative technological process. >The wheel was very high-tech at one point in our history. Would you >consider the wheel knowlegde? No, but a wheel isn't technology, it's a gadget. Its application as a means to reduce friction, with a special reference to efficient transportation, is. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 03:09:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA05067 for dvd-discuss-outgoing; Mon, 4 Sep 2000 03:09:45 -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 DAA05064 for ; Mon, 4 Sep 2000 03:09:43 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id AAA23379 for ; Mon, 4 Sep 2000 00:10:34 -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 smtpdAAA9zaONT; Mon Sep 4 00:10:31 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 AAA02451 for ; Mon, 4 Sep 2000 00:09:46 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Sun, 3 Sep 2000 22:40:28 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00090322414404.09185@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, 03 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/3/00 6:09:49 AM Eastern Daylight Time, tom@lemuria.org > writes: > > << it's just that those [illegalized tools] I'm aware of endanger human > life.>> > > Well in a country where the original "inalienable rights" were life, liberty, > and _property_, why couldn't a tool that endangers any of those 3 rights be > illegal? When a tool does, call the Vatican. -- | 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 Sep 4 03:37:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA05166 for dvd-discuss-outgoing; Mon, 4 Sep 2000 03:37:38 -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 DAA05163 for ; Mon, 4 Sep 2000 03:37:37 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 4 Sep 2000 00:37:48 -0700 Received: from 141.156.126.102 by lw9fd.law9.hotmail.msn.com with HTTP; Mon, 04 Sep 2000 07:37:47 GMT X-Originating-IP: [141.156.126.102] From: "Richard Bowers" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Mon, 04 Sep 2000 03:37:47 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 04 Sep 2000 07:37:48.0190 (UTC) FILETIME=[05C6ABE0:01C01643] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I know I shouldn't be responding to a troll, but its 3am. The first problem with denying the right to publish any program is that a program is text. A program can't be used to destroy anything, any more than a word document containing the manuscript to the Anarchist's Cookbook can. (less, in fact, as the anarchist's cookbook's recipes exist in the relatively well-defined context of real life; they can't be compiled to do something different). Anyone should be able to understand this, not just a programmer - a program is a collection of text, which is somehow meaningful to the computer as well as to a human reader, or some derivation of that source (YES, including binaries). Given any text, I can turn it into something that will compile. Given any program, I can turn it into properly formatted text. I can give you nursery rhymes, or even poetry. Programs are text, and they can't do anything unless an operating system and a hardware interface understand that text. Given sufficient time, I could write a kernal that understood the binary representation of a college student's "Hello World" program to mean "access the DVD drive and turn off the encryption." Does that mean that every college textbook, everywhere, is now violating the law? This leads into the second problem; all programs contain the same vocabulary, and a program, on its own, does not have a context for that vocabulary. Crying "Fire" in a crowded theatre is important for two reasons: the word "Fire" incalculates fear, and the context of a crowded theatre causes that fear to cause harm. What harm does the word "Fire" do, bereft of context? Distributing plans for a nuclear weapon may cause harm, but those plans are made up of arcs, lines, numbers, and letters. Because those elements exist in the context of a paper, they have definite and unambiguous meaning. You can't say that about programs. As any program can be rewritten fairly simply to be composed of small, atomic, steps, truly outlawing any program would be futile without outlawing all programs. Given that you have been arguing this point for weeks, it may be best to just let it drop. I haven't heard a single programmer agree with you on the list, so far. In closing, I would like to share with you this work, quoted in part from Programming Perl by Larry Wall and Randall Schwartz. While it isn't my taste, I've seen worse. BEFOREHAND: close door, each window & exit; wait until time. open spellbook, study, read (scan, select, tell us); write it, print the hex while each watches, reverse its length, write again; kill spiders, pop them, chop, split, kill them; unlink arms, shift, wait & listen (listening, wait), sort the flock (then, warn the "goats" & kill the "sheep"); kill them, dump qualms, shift moralities, values aside, each one; die sheep! die to reverse the system you accept (reject, respect); >From: Consilgere@cs.com >Reply-To: dvd-discuss@eon.law.harvard.edu >To: dvd-discuss@eon.law.harvard.edu >Subject: Re: [dvd-discuss] code as speech >Date: Mon, 4 Sep 2000 00:05:03 EDT > >In a message dated 9/3/00 2:00:01 AM Eastern Daylight Time, >dcs@mailhost.lumbercartel.com writes: > ><< On the contrary, we're arguing that the words that we write are NO >DIFFERENT > from the words written by any other writer. (Gosh, what a radical >notion!) > >But they're not trying to regulate the words we write. They're trying to >regulate the programs we write, some of which (but none that i've ever seen >addressed) can destroy property. The only way to destroy property with a >hard copy of the Anarchist's Cookbook is to use it as a blunt instrument. >So >the knowledge contained in the book is useless unless applied. >And I see the point alot of people are making. Yes, in the physical world, >speech is kept sacred, even if the information in that speech is dangerous >to >someone or something. But there are physical barriers that separate the >knowledge from the implementation. I can describe how to build a grenade >launcher. That's legal. Giving someone a grenade launcher is illegal. >That's not speech. And any jack-in-the-box can tell the difference. And >that fact, that information had to be physically implemented to be of any >use >in most if not all cases, was impossible to deny. Knowing how to fish >didn't >put dinner on the table. >But in our world, the only things that "exist" are computational models for >those things we already understand. Society is starting to give those >models >value, thus lending credence to the idea that they truly exist. And the >descriptions of our models that serve only to educate people are quickly >becoming entangled with the descriptions computers use to run the >simulations. In other words, some of the things we used to be able to >differentiate between can no longer be separated. Educating someone has to >how an item works has become almost synonymous with providing the means to >create, copy, and/or destroy that item. Seeing these differences are >getting >so blurry, doesn't it make sense to step back and either see how to >re-establish that line, or find an acceptable alternative line. Why must >we >jump to the extreme that all software is free speech and can never be >illegalized? _________________________________________________________________________ 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 Mon Sep 4 04:27:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05371 for dvd-discuss-outgoing; Mon, 4 Sep 2000 04:27:20 -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 EAA05367 for ; Mon, 4 Sep 2000 04:27:16 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 4 Sep 2000 10:24:41 +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; Mon, 4 Sep 2000 10:16:31 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 4 Sep 2000 10:16:31 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000904101631.D3220@lemuria.org> References: <34.a00d4d4.26e4796f@cs.com> <0009032205102F.01642@www.rjmconsulting.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <0009032205102F.01642@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: > I understand what you're saying, and I think your point is correct insofar as > the facts are concerned, but I draw different conclusions. I think that this > is one of the first instances of information (speech) and the means to cause an > action being indistinguishable. not sure. what about the declaration of independence? it is both, words and action. smaller examples: saying "yes" when asked if you want to marry someone (context dependent). saying "yes" to any kind of contract (only few kinds of contracts require a written signature). speech sometimes is an action. so is code. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 04:27:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05378 for dvd-discuss-outgoing; Mon, 4 Sep 2000 04:27:27 -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 EAA05363 for ; Mon, 4 Sep 2000 04:27:14 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 4 Sep 2000 10:24:41 +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; Mon, 4 Sep 2000 10:12:54 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 4 Sep 2000 10:12:54 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000904101254.C3220@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 Consilgere@cs.com wrote: > << it's just that those [illegalized tools] I'm aware of endanger human > life.>> > > Well in a country where the original "inalienable rights" were life, liberty, > and _property_, why couldn't a tool that endangers any of those 3 rights be > illegal? because it may in the same instance be used to DEFEND those rights (e.g. guns). > > yes, I say that. software is too fluent. you can't outlaw something that > > can change faster than you can analyze it > Can't as in are physically unable to? can't as in: it'll have the same effect as creating a law that says pi equals three - real life will simply not care. of course, lawyers and law makers more often than not are not stopped by silly things such as facts and natural laws. > Can't as in they shouldn't? I guess that's why we're here talking. I > personally wouldn't mind a law saying that the software that controls my > traffic lights has to be D.O.T. tested and approved... it'd prolly make for > safer streets... and I certainly don't want a company avoiding that rule > hiding behind the First Amendment. that's a completely different animal. school textbooks are surely reviewed by someone, and they definitely ARE speech. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 04:27:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05369 for dvd-discuss-outgoing; Mon, 4 Sep 2000 04:27:19 -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 EAA05359 for ; Mon, 4 Sep 2000 04:27:11 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 4 Sep 2000 10:24:41 +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; Mon, 4 Sep 2000 10:06:53 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 4 Sep 2000 10:06:53 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000904100653.B3220@lemuria.org> References: <39B3240D.523F3390@mindspring.com> <00090322000201.09185@frankenstein.lumbercartel.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <00090322000201.09185@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: > > Is a dongle then described as a physical object that represents local > > authority? > > Fits like a glove. > > > Is a dongle an effective access control measure? > > Let's propose that in the context of the DMCA as properly understood, > the dongle is the _archetypical_ access control. > > > In the case of dvd, isn't the player the dongle? > > Nope. You don't mass-produce identical dongles; that would totally > defeat their purpose. Each dongle is unique, just as a key is. Otherwise > it doesn't identify the people who are authorized to use software package > X but not package Y. so CSS is an attempt gone wrong at implementing mass-market dongles. the problem is that dongles usually protect software in the price class of $4000+. no problem spending a few $ on a unique dongle. that's not true for DVDs. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 09:26:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA06623 for dvd-discuss-outgoing; Mon, 4 Sep 2000 09:26:16 -0400 Received: from tisch.mail.mindspring.net (tisch.mail.mindspring.net [207.69.200.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA06620 for ; Mon, 4 Sep 2000 09:26:15 -0400 Received: from Jana-Server (user-38ld6e2.dialup.mindspring.com [209.86.153.194]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id JAA30145 for ; Mon, 4 Sep 2000 09:26:55 -0400 (EDT) Message-ID: <39B3A34A.A4264BDF@mindspring.com> Date: Mon, 04 Sep 2000 09:27:39 -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] CSS vs. Access Control Content-Type: text/plain; charset=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: > > > Is a dongle then described as a physical object that represents local > > > authority? > > > > Fits like a glove. > > > > > Is a dongle an effective access control measure? > > > > Let's propose that in the context of the DMCA as properly understood, > > the dongle is the _archetypical_ access control. > > > > > In the case of dvd, isn't the player the dongle? > > > > Nope. You don't mass-produce identical dongles; that would totally > > defeat their purpose. Each dongle is unique, just as a key is. Otherwise > > it doesn't identify the people who are authorized to use software package > > X but not package Y. > > so CSS is an attempt gone wrong at implementing mass-market dongles. the > problem is that dongles usually protect software in the price class of > $4000+. no problem spending a few $ on a unique dongle. that's not true for > DVDs. > so, the disk is the dongle, right? It's where the keys are. Strange animal...In the pc world, that would be like saying the dongle and the disk are one. We've been there before, I grew up RE'ing floppy disk protection schemes. Those kind of shackles always seemed like attractive nuisances to a hardware guy. The use of a local authority representative becomes a problem when you can't trust the it anymore. In the past, this was a measure/countermeasure game. Now it has the force of law. The absence of a return path in the definition of EAC is one reason why I will continue to fight this law. mickeym From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 10:16:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA06876 for dvd-discuss-outgoing; Mon, 4 Sep 2000 10:16:28 -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 KAA06873 for ; Mon, 4 Sep 2000 10:16:27 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id HAA07698 for ; Mon, 4 Sep 2000 07:14:44 -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 smtpdAAAKuaW_o; Mon Sep 4 07:14:39 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 HAA03529 for ; Mon, 4 Sep 2000 07:16:59 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Mon, 4 Sep 2000 07:16:25 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39B3240D.523F3390@mindspring.com> <00090322000201.09185@frankenstein.lumbercartel.com> <20000904100653.B3220@lemuria.org> In-Reply-To: <20000904100653.B3220@lemuria.org> MIME-Version: 1.0 Message-Id: <00090407165500.09745@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, 04 Sep 2000, Tom Vogt wrote: > "D. C. Sessions" wrote: > > > Is a dongle then described as a physical object that represents local > > > authority? > > > > Fits like a glove. > > > > > Is a dongle an effective access control measure? > > > > Let's propose that in the context of the DMCA as properly understood, > > the dongle is the _archetypical_ access control. > > > > > In the case of dvd, isn't the player the dongle? > > > > Nope. You don't mass-produce identical dongles; that would totally > > defeat their purpose. Each dongle is unique, just as a key is. Otherwise > > it doesn't identify the people who are authorized to use software package > > X but not package Y. > > so CSS is an attempt gone wrong at implementing mass-market dongles. the > problem is that dongles usually protect software in the price class of > $4000+. no problem spending a few $ on a unique dongle. that's not true for > DVDs. Bingo. It's like having a hotel where all of the rooms are keyed alike. -- | 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 Sep 4 10:30:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA07075 for dvd-discuss-outgoing; Mon, 4 Sep 2000 10:30:45 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA07072 for ; Mon, 4 Sep 2000 10:30:44 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id KAA29892 for ; Mon, 4 Sep 2000 10:31:25 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA09199; Mon, 4 Sep 2000 10:31:25 -0400 (EDT) Date: Mon, 4 Sep 2000 10:31:25 -0400 (EDT) Message-Id: <200009041431.KAA09199@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B3A34A.A4264BDF@mindspring.com> References: <39B3A34A.A4264BDF@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym@mindspring.com writes: > > "D. C. Sessions" wrote: > > > > so CSS is an attempt gone wrong at > > implementing mass-market dongles. the problem is that dongles > > usually protect software in the price class of $4000+. no problem > > spending a few $ on a unique dongle. that's not true for DVDs. So you might guess from looking at it, but Marks at the Stanford hearing was quite explicit that the purpose of CSS is *to be contractually tied to other mechanisms*, and not to act as an access control, or in fact, a copy control mechanism, on its own. In fact, his opening remarks describe it as a copy protection system, and it's only when he gets into details that he mentions access control at all, and then for the sake of a legal trick. Quote included below. > so, the disk is the dongle, right? It's where the keys are. Strange > animal...In the pc world, that would be like saying the dongle and the > disk are one. We've been there before, I grew up RE'ing floppy disk > protection schemes. Those kind of shackles always seemed like attractive > nuisances to a hardware guy. Well, no --- the fact that the "keys" are physically attached to the item that they protect is the reason that they *don't* provide effective access control. Here's Marks explaining the genesis of CSS in detail: 15 When those discussions were opened up to 16 the computer industry, the computer industry said, 17 "No. We cannot sign onto this. We do not agree 18 with the concept of having Congress mandate that our 19 devices look for and respond to copy control flags 20 and content. Copy control flags are essentially 21 ancillary data that are easy to get lost and it 22 would be very burdensome to make our machines have 23 to look at all the streams of data, especially 24 digital data which basically are just ones and 25 zeroes, and have to assertively look for these copy PAGE 240 1 control flags. We won't do it, we won't sign up for 2 it." 3 And the strength of the computer 4 industry is really demonstrated in the no-mandate 5 provision of the DMCA. That there is no mandate to 6 affirmatively look for copy protection measures. 7 So here we were, after months if not 8 years of work, kind of back at square zero. What 9 are we going to do? The computer industry did 10 acknowledge that making our films available in 11 digital format did pose works. We did, after weeks 12 and months of discussions, get them to realize that, 13 unlike software, you know, Warner Brothers is still 14 exploiting Casablanca in Version 1.0. 15 Now, we don't update it, we don't change 16 it. We -- you know, it's the same classic movie 17 that we exploit. So once somebody has a copy of it, 18 they don't have an incentive to get the revised 19 copy. The work is the work. 20 Understanding that, the computer 21 industry came back to us and said, "Fine. This is 22 our position. If data is coming to our machines in 23 the clear," meaning unencrpyted, descrambled, "We 24 believe we have no obligation to look for any copy 25 control flags, to look for any copy protection 26 devices, or to really follow any rules with respect PAGE 241 1 to that data. The data comes in the clear, and we 2 can -- our machines should be able to do whatever 3 they like with that data, and send it out the 4 machine in the clear." 5 Now, this is completely apart from any 6 copyright rules, or the fact that if a user is 7 making unauthorized copies that he may be infringing 8 the copyright law. 9 They said, "But if that data is 10 scrambled, if it is encrypted, and we want our 11 machines, our computers to make use of that data, 12 then we have a choice. We can either sign up and 13 get a license to decrypt that data and follow the 14 rules and conditions that are in that license. Or 15 our machines will simply pass along the encrypted 16 data, keeping it in encrypted form. We agree that 17 our devices and machines should not be permitted to 18 simply descramble and hack through and encryption 19 system without any sort of authorization or 20 permission." 21 Having reached that understanding, that 22 is the basis upon which we built the CSS system. So the point of it is copy control, not access control --- but CSS provides no copy control itself. The only protection it provides of any kind is through the license agreement, as Marks goes on to explain: 6 Those devices, whether they be players 7 or personal computers or the Sony PlayStation who 8 would like to have their devices be able to display 9 and play back those DVD disks need to get a license 10 to be able to decrypt the CSS encryption system. 11 They do that by going to the DVD-CCA and applying 12 for a CSS license. 13 That CSS license gives them the keys and 14 tools to be able to decrypt the disks. It also 15 imposes certain conditions on what the device can do 16 with the content once it is decrypted. One of those 17 obligations, for example, is that the content is not 18 allowed to flow out in the clear on a digital 19 output. 20 Another example of an obligation is that 21 the device has to insert Macrovision on content 22 before it goes out the analog output. So by this 23 combination of encryption technology and licensing, 24 you have really a structure that involves access 25 control and copy protection. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 12:36:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07680 for dvd-discuss-outgoing; Mon, 4 Sep 2000 12:36:54 -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 MAA07677 for ; Mon, 4 Sep 2000 12:36:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 4 Sep 2000 18:29:14 +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, 4 Sep 2000 18:04:33 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 4 Sep 2000 18:04:33 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000904180433.A1968@lemuria.org> References: <39B3A34A.A4264BDF@mindspring.com> <200009041431.KAA09199@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200009041431.KAA09199@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: > So you might guess from looking at it, but Marks at the Stanford > hearing was quite explicit that the purpose of CSS is *to be > contractually tied to other mechanisms*, and not to act as an access > control, or in fact, a copy control mechanism, on its own. thanks for that quote - it'll help me tremendously. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 13:22:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA07888 for dvd-discuss-outgoing; Mon, 4 Sep 2000 13:22:35 -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 NAA07885 for ; Mon, 4 Sep 2000 13:22:34 -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 NAA04226 for ; Mon, 4 Sep 2000 13:20:26 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200009011556.LAA22481@soggy-fibers.ai.mit.edu> References: <4.1.20000830205534.01d46ec8@law.harvard.edu> <200009011556.LAA22481@soggy-fibers.ai.mit.edu> Date: Mon, 4 Sep 2000 13:20:22 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Kaplan on Sony --- wrong again. 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 >Arnold G. Reinhold writes: > > Thau goes on to say "But in the meantime, it's important to note that > > the issue of Sony was > > specifically revisited in the conference committee, if not before, and > > the committee was praised in subsequent debate for incorporating Sony." > > > > Is that correct? Doesn't the conference committee have the last word? > >That's correct. I did indeed say that ;-). > >Of course, this whole matter turned out to be rather deeper and >muddier than I thought --- the report Kaplan was reading turns out to >be on the final House version (the one sent to conference), and not on >the initial committee markup. > >That said, 1201 was revised in conference, and I would certainly >expect (IANAL!) that the conference committee report should be taken >as authoritative on *at least* the points where they were revised >(possibly also language originally introduced in the Senate, etc.). > >As to whether Sony was one of those points --- I was taking Klug's >word for it. He was not a conferee, but he kept abreast of their >maneuvers, and describes them in some detail in debate. Not as strong >a citation as one might like, particularly given the muddiness of >these waters generally, but it's there. > >rst It might be worth comparing DMCA as passed with the final House version. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 13:31:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA08034 for dvd-discuss-outgoing; Mon, 4 Sep 2000 13:31:09 -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 NAA08031 for ; Mon, 4 Sep 2000 13:31:09 -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 NAA11755 for ; Mon, 4 Sep 2000 13:31:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA09804; Mon, 4 Sep 2000 13:31:50 -0400 (EDT) Date: Mon, 4 Sep 2000 13:31:50 -0400 (EDT) Message-Id: <200009041731.NAA09804@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000904180433.A1968@lemuria.org> References: <39B3A34A.A4264BDF@mindspring.com> <200009041431.KAA09199@soggy-fibers.ai.mit.edu> <20000904180433.A1968@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: > > So you might guess from looking at it, but Marks at the Stanford > > hearing was quite explicit that the purpose of CSS is *to be > > contractually tied to other mechanisms*, and not to act as an access > > control, or in fact, a copy control mechanism, on its own. > > thanks for that quote - it'll help me tremendously. Hmmm... you might be better off quoting Marks directly (perhaps in his references to authorized players a bit later on). Also, depending on how you're using the quote, you might want to use this, from Sen. Kohl in debate before the vote on the Conference Committee product: [1201(c)(3)] reflected my belief that product manufacturers should remain free to design and produce the best, most advanced consumer electronics, telecommunications, and computing products without the threat of incurring liability for their design decisions. Creative engineers--not risk-averse lawyers--should be principally responsible for product design. It's a slight exaggeration to say that CSS was designed by lawyers, but none at all to say that it exists for the sake of a legal trick. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 15:46:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08715 for dvd-discuss-outgoing; Mon, 4 Sep 2000 15:46:55 -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 PAA08711 for ; Mon, 4 Sep 2000 15:46:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 4 Sep 2000 21:35:30 +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; Mon, 4 Sep 2000 19:58:46 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 4 Sep 2000 19:58:46 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000904195846.A3617@lemuria.org> References: <39B3A34A.A4264BDF@mindspring.com> <200009041431.KAA09199@soggy-fibers.ai.mit.edu> <20000904180433.A1968@lemuria.org> <200009041731.NAA09804@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200009041731.NAA09804@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: > It's a slight exaggeration to say that CSS was designed by lawyers, > but none at all to say that it exists for the sake of a legal trick. that's exactly what I need. :) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 19:05:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10974 for dvd-discuss-outgoing; Mon, 4 Sep 2000 19:05:00 -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 TAA10971 for ; Mon, 4 Sep 2000 19:04:58 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id QAA06633 for dvd-discuss@eon.law.harvard.edu; Mon, 4 Sep 2000 16:13:10 -0700 From: Russell (James) Miller To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] encouraging experience... Date: Mon, 4 Sep 2000 16:09:47 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <0009041613062L.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 I was just at Fred Meyer's, getting myself some rice dream to celebrate my 25th b-day (shameless plug) . Anyway, the cashier there saw my shirt (the copyleft one), and asked me what it was about. I told him what DVD-CCA stood for, and his eyes lit up, and said "oh, yeah! I'm really miffed!" He's also pissed off about the napster thing. Now I don't know if that's just a fluke or whatever, but when a complete stranger sees your shirt and knows why you're wearing it, we've definitely made some progress. --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 Mon Sep 4 19:24:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11162 for dvd-discuss-outgoing; Mon, 4 Sep 2000 19:24:33 -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 TAA11159 for ; Mon, 4 Sep 2000 19:24:32 -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 TAA20412 for ; Mon, 4 Sep 2000 19:25:13 -0400 (EDT) Message-ID: <39B42F5A.50A3C8DF@mediaone.net> Date: Mon, 04 Sep 2000 19:25:14 -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] (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's a war. What a terrible business to be in where your customer > is your enemy. Most customers haven't realized this yet. > ... In practical terms, what DVD wardware should I buy in my next computer? If we're going to have to give a stamp of appoval then we need to start stamping. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 20:33:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11454 for dvd-discuss-outgoing; Mon, 4 Sep 2000 20:33:46 -0400 Received: from imo-r14.mx.aol.com (imo-r14.mx.aol.com [152.163.225.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA11451 for ; Mon, 4 Sep 2000 20:33:46 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r14.mx.aol.com (mail_out_v28.15.) id x.60.69be3a9 (4360) for ; Mon, 4 Sep 2000 20:33:56 -0400 (EDT) Message-ID: <60.69be3a9.26e59973@cs.com> Date: Mon, 4 Sep 2000 20:33:55 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/4/00 1:41:35 AM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << You believe in magic? That writing words on paper can directly change the real world? They burn people who do THAT at the stake. >> No, but I do believe that changing a few bits around on a bank's computer can empty someone's bank account. The value of something, namely the bank account, has changed simply because of the information. That person's property, namely the money in the account, is gone. While it was in the computer, it was only a computational model simulating the moving of funds between what ammounted to different piles of money owned by different people. The information changed, and our theoretical person lost their bank account. Information can destroy, or in this case erase, property. <> But we're not talking about thought. We're talking about the implementation of thought in the form of software. I may know how to write a Hello World program, but I can't will it into existence. <> No. All those examples are examples of things that needed to be physically created or implemented. They may philosophically exist in thought as well as in reality, but a mental image of how a steamboat works won't bring you down the Mississippi River. The U.S. let the blueprints for nukes be disseminated because it could illegalize the plutonium. It was a fact of life until the computer came around. Now a description of a tool actually becomes the tool. And can anyone give me any reason, without hiding behind the First Amendment, that we should legalize all tools in Our world but the same standard should not apply in the physical world? <> But thought has never had this sort of effect before. In the physical world thought exists in someone's mind, then that person used raw materials to carry out an implementation of that thought. In Our world, any communication of that thought becomes, as we're arguing an instant program. I'll give you that. It's like we've been given omnipotence over this not-so-physical world. Any thought we have becomes a real program. That isn't quite as true in the physical world. So maybe those "thoughts" should be illegal in the not-so-physical world. Unless we can find some sort of equivalent barrier... From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 20:36:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11560 for dvd-discuss-outgoing; Mon, 4 Sep 2000 20:36:12 -0400 Received: from imo-r12.mx.aol.com (imo-r12.mx.aol.com [152.163.225.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA11557 for ; Mon, 4 Sep 2000 20:36:11 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r12.mx.aol.com (mail_out_v28.15.) id x.6b.94e105d (4360) for ; Mon, 4 Sep 2000 20:36:39 -0400 (EDT) Message-ID: <6b.94e105d.26e59a16@cs.com> Date: Mon, 4 Sep 2000 20:36:38 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/4/00 4:28:59 AM Eastern Daylight Time, tom@lemuria.org writes: << > << it's just that those [illegalized tools] I'm aware of endanger human > life.>> > > Well in a country where the original "inalienable rights" were life, liberty, > and _property_, why couldn't a tool that endangers any of those 3 rights be > illegal? because it may in the same instance be used to DEFEND those rights (e.g. guns). >> Then defend the programs on those grounds! Not based on its being speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 20:40:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11646 for dvd-discuss-outgoing; Mon, 4 Sep 2000 20:40:49 -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 UAA11643 for ; Mon, 4 Sep 2000 20:40:49 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r18.mx.aol.com (mail_out_v28.15.) id x.f7.274921c (4360) for ; Mon, 4 Sep 2000 20:40:55 -0400 (EDT) Message-ID: Date: Mon, 4 Sep 2000 20:40:54 EDT 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" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In a message dated 9/4/00 4:29:01 AM Eastern Daylight Time, tom@lemuria.org writes: << what about the declaration of independence? it is both, words and action.>> I dont see the Declaration of Independance as action, but maybe you could enlighten me. It was a declaration of the intent of people to rebel against their leader. The action could have taken place without the declaration. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 20:41:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11654 for dvd-discuss-outgoing; Mon, 4 Sep 2000 20:41:32 -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 UAA11651 for ; Mon, 4 Sep 2000 20:41:31 -0400 Received: from ip98.bedford2.ma.pub-ip.psi.net ([38.32.10.98]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13W6oX-0004UL-00 for dvd-discuss@eon.law.harvard.edu; Mon, 04 Sep 2000 20:42:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Date: Mon, 04 Sep 2000 20:44:42 -0400 Message-ID: References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> <39AAFFB7.421B5014@swbell.net> <39B42F5A.50A3C8DF@mediaone.net> In-Reply-To: <39B42F5A.50A3C8DF@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 UAA11652 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 04 Sep 2000 19:25:14 -0400, Sphere wrote: >In practical terms, what DVD wardware should I buy >in my next computer? > >If we're going to have to give a stamp of appoval >then we need to start stamping. Unfortunately all the hardware is contaminated. If we can approve of anything, it would be DVDs that are not CSS'd and/or are Region #0. This actually would be a worthwhile endeavor. Lots of vintage movies, music, porn, and specialty titles are coming out as region #0. I bet a lot of these are not CSS'd either. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 23:00:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12712 for dvd-discuss-outgoing; Mon, 4 Sep 2000 23:00:25 -0400 Received: from hotmail.com (f26.law9.hotmail.com [64.4.9.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA12709 for ; Mon, 4 Sep 2000 23:00:24 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 4 Sep 2000 20:00:30 -0700 Received: from 38.30.235.138 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 05 Sep 2000 03:00:30 GMT X-Originating-IP: [38.30.235.138] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Mon, 04 Sep 2000 23:00:30 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 05 Sep 2000 03:00:30.0776 (UTC) FILETIME=[73848380:01C016E5] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consilgere@cs.com >No, but I do believe that changing a few bits around on a bank's computer >can >empty someone's bank account Bzzt. Auditing trails allow a determination of where the money went, and came from. Thus, while you could move it, you could be caught and it could be moved back. >But we're not talking about thought. We're talking about the >implementation >of thought in the form of software. I may know how to write a Hello World >program, but I can't will it into existence. My computer has speach recognition, thus I need only speak the program to "will it into existence." What you are advocating is traditionally refered to as thought control - certainly nobody has ever been able to control the unexpressed thoughts of others (or maybe even themeselves!) so the term thought-control has always been something of a misnomer. It generically refers to control of expressions of ideas - exactly the big brother world you are advocating. You are free to your own crazy political ideas, but they are abhorent to essentially everyone in this forum besides you. Thought will always be free. Expression of thought should always be free so long as no harmful action is taken as a result. Most of us agree that taking *actions* that are genuinely harmful can and should be illegal. But since you want to take a further step of outlawing expression of though that *could* be harmful, then please turn yourself into the local authorities for aiding and abetting any electronic embezzelements that may soon take place since YOU have suggested a technological means for doing so and could be considered an accessory. _________________________________________________________________________ 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 Mon Sep 4 23:08:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13176 for dvd-discuss-outgoing; Mon, 4 Sep 2000 23:08:50 -0400 Received: from imo-d09.mx.aol.com (imo-d09.mx.aol.com [205.188.157.41]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13173 for ; Mon, 4 Sep 2000 23:08:49 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d09.mx.aol.com (mail_out_v28.15.) id x.ca.9c6721b (4421) for ; Mon, 4 Sep 2000 23:08:59 -0400 (EDT) Message-ID: Date: Mon, 4 Sep 2000 23:08:58 EDT 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" 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 9/4/00 11:03:11 PM Eastern Daylight Time, haceaton@hotmail.com writes: << My computer has speach recognition, thus I need only speak the program to "will it into existence." >> But you need to speak. Speaking creates it, that's not "willing it into existence" anymore that dictating to a secretary. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 23:36:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13286 for dvd-discuss-outgoing; Mon, 4 Sep 2000 23:36:19 -0400 Received: from relay20.smtp.psi.net (relay20.smtp.psi.net [38.8.20.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13283 for ; Mon, 4 Sep 2000 23:36:18 -0400 Received: from ip111.bedford3.ma.pub-ip.psi.net ([38.32.11.111]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13W9Xg-00011r-00 for dvd-discuss@eon.law.harvard.edu; Mon, 04 Sep 2000 23:37:01 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Mon, 04 Sep 2000 23:39:31 -0400 Message-ID: <80q8rsc1kjlr8e1t9md5bodu68c2ou5af7@4ax.com> References: <60.69be3a9.26e59973@cs.com> In-Reply-To: <60.69be3a9.26e59973@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 XAA13284 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 4 Sep 2000 20:33:55 EDT, Consilgere@cs.com wrote: >In a message dated 9/4/00 1:41:35 AM Eastern Daylight Time, >dcs@mailhost.lumbercartel.com writes: > ><< You believe in magic? That writing words on paper can directly change > the real world? They burn people who do THAT at the stake. >> > >No, but I do believe that changing a few bits around on a bank's computer can >empty someone's bank account. The value of something, namely the bank >account, has changed simply because of the information. That person's Changing--not knowing how to change. An SQL statement could accomplish this. Does this mean SQL should be illegal? It is the act that is or isn't illegal, not the knowledge. [...] >But thought has never had this sort of effect before. In the physical world >thought exists in someone's mind, then that person used raw materials to >carry out an implementation of that thought. In Our world, any communication >of that thought becomes, as we're arguing an instant program. I'll give you >that. It's like we've been given omnipotence over this not-so-physical >world. Any thought we have becomes a real program. That isn't quite as true >in the physical world. So maybe those "thoughts" should be illegal in the >not-so-physical world. Unless we can find some sort of equivalent barrier... Look, the future is necessarily dangerous. IOW, it is susceptible to change-- especially change that promises higher profits at lower costs. Technology has equal opportunity to do good or ill. But you can't open Pandora's box and only take the buttercreams. They usually aren't marked. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 4 23:56:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13414 for dvd-discuss-outgoing; Mon, 4 Sep 2000 23:56:22 -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 XAA13411 for ; Mon, 4 Sep 2000 23:56:21 -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 XAA01659 for ; Mon, 4 Sep 2000 23:57:03 -0400 (EDT) Message-ID: <39B46F10.76C316DA@mediaone.net> Date: Mon, 04 Sep 2000 23:57:04 -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] Commercial vs. non-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 I think we should assert our political right to destroy a commercial enterprise by giving things away. If you look at the entire structure of "fair use" it comes down to the right of people to use speech non commercially. If you look at "open source" it is using code non commercially. As a political statement, I'm in favor of destroying the commercial monopoly of big media. To me, DeCSS is political speech, pure and simple. They want to make money. I don't want them to make money. It's a very simple equation to understand. The first amendment makes it clear that I have the right to express my political viewpoint. The copyright clause makes their position far less substantial. I shouldn't have to prove anything, and they should have to prove every inch. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 00:19:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13556 for dvd-discuss-outgoing; Tue, 5 Sep 2000 00:19:40 -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 AAA13553 for ; Tue, 5 Sep 2000 00:19:35 -0400 Received: from ppp.anonymizer.com (c07-057.015.popsite.net [64.24.78.57]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA15166 for ; Mon, 4 Sep 2000 21:22:14 -0700 (PDT) Message-Id: <4.3.2.7.2.20000904211454.00aaced0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 04 Sep 2000 21:20:08 -0700 To: From: "James S. Tyre" Subject: Re: [dvd-discuss] Commercial vs. non-commercial speech In-Reply-To: <39B46F10.76C316DA@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 11:57 PM 9/4/2000 -0400, Sphere wrote: >If you look at the entire structure of "fair >use" it comes down to the right of people to >use speech non commercially. Just a suggestion, but it sometimes helps to learn the law before talking about the law. See the USSC decision, for example, in Campbell v. Acuff-Rose Music. 2 Live Crew's very profitable parody of Roy Orbison's "Oh, Pretty Woman" upheld as fair use. (Damn, now I want to hear "Oh, Pretty Woman", a classic. Think I can find it on any of the free .mp3 sharing services? ;-) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 00:21:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13575 for dvd-discuss-outgoing; Tue, 5 Sep 2000 00:21:37 -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 AAA13572 for ; Tue, 5 Sep 2000 00:21:36 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e854MM827618 for ; Mon, 4 Sep 2000 23:22:22 -0500 Date: Mon, 4 Sep 2000 23:22:22 -0500 (CDT) From: Steve Stearns To: dvd-discuss Subject: Re: [dvd-discuss] Commercial vs. non-commercial speech In-Reply-To: <39B46F10.76C316DA@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 > I think we should assert our political right > to destroy a commercial enterprise by giving > things away. Is that your political right? I haven't seen any evidence that says that's the case. What makes you think that it is? > If you look at the entire structure of "fair > use" it comes down to the right of people to > use speech non commercially. If you look at > "open source" it is using code non commercially. Open source is not about using code non-commercially. Open source is about making source code available to people to use and modify as they wish. It has nothing to do with commercial vs. non-commercial. RedHat SELLS open source software. Open source isn't about some marxist revolution, eliminating the notion of making money from software. It is about making software that people can actually look at and see what it is doing and modify that functionality should they desire. The official notion of Open Source evolved out of the Free Software movement, applying a more business oriented (commercial) approach to the Free Software Foundation's liberty driven approach. It's about encouraging people to open up their black boxes for the benefit of themselves and the good of society, not taking them and prying them open with a crowbar against their will. > As a political statement, I'm in favor of > destroying the commercial monopoly of big > media. To me, DeCSS is political speech, > pure and simple. They want to make money. > I don't want them to make money. It's a very Why don't you want them to make money? What's wrong with making money? There's nothing wrong with them making money, rather there is something wrong with some of the practices they use to try to make money. For example, licensing of DeCSS is a tool they use to control the market in a way that is arguably a violation of anti-trust laws. That being the case, that tool should be removed from them. But destroying these companies isn't the answer. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 00:42:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13762 for dvd-discuss-outgoing; Tue, 5 Sep 2000 00:42:10 -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 AAA13759 for ; Tue, 5 Sep 2000 00:42:09 -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 AAA13041 for ; Tue, 5 Sep 2000 00:42:50 -0400 (EDT) Message-ID: <39B479CB.72702CB6@mediaone.net> Date: Tue, 05 Sep 2000 00:42:51 -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] Commercial vs. non-commercial speech References: <4.3.2.7.2.20000904211454.00aaced0@cyberpass.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 "James S. Tyre" wrote: > > At 11:57 PM 9/4/2000 -0400, Sphere wrote: > > >If you look at the entire structure of "fair > >use" it comes down to the right of people to > >use speech non commercially. > > Just a suggestion, but it sometimes helps to learn the law before talking > about the law. I'm talking politics. Not law. It is the same politics which created the first amendment intially. The law is just a bunch of noise which has resulted in the aftermath. This is war, after all. > See the USSC decision, for example, in Campbell v. Acuff-Rose Music. 2 > Live Crew's very profitable parody of Roy Orbison's "Oh, Pretty Woman" > upheld as fair use. > > (Damn, now I want to hear "Oh, Pretty Woman", a classic. Think I can find > it on any of the free .mp3 sharing services? ;-) Well... It's a strange war. ;) -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 00:47:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13854 for dvd-discuss-outgoing; Tue, 5 Sep 2000 00:47:00 -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 AAA13851 for ; Tue, 5 Sep 2000 00:46:59 -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 AAA01515 for ; Tue, 5 Sep 2000 00:47:42 -0400 Date: Tue, 5 Sep 2000 00:47:42 -0400 (EDT) From: Ole Craig 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 On 09/04/00 at 23:08, 'twas brillig and Consilgere@cs.com trollobe: > > In a message dated 9/4/00 11:03:11 PM Eastern Daylight Time, > haceaton@hotmail.com writes: > > << My computer has speach recognition, thus I need only speak the > program to "will it into existence." >> > But you need to speak. Speaking creates it, that's not "willing it into > existence" anymore that dictating to a secretary. Right. Explain again how "freedom of speech" isn't relevant? Actually, on second thought, don't bother. "First they came for the verbs, and I said nothing because verbing weirds language. Then they arrival for the nouns, and I speech nothing because I no verbs." -- Peter Ellis 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 Sep 5 00:53:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13938 for dvd-discuss-outgoing; Tue, 5 Sep 2000 00:53:29 -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 AAA13935 for ; Tue, 5 Sep 2000 00:53:28 -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 AAA15091 for ; Tue, 5 Sep 2000 00:54:10 -0400 (EDT) Message-ID: <39B47C73.F3680241@mediaone.net> Date: Tue, 05 Sep 2000 00:54:11 -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] Commercial vs. non-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: > > > I think we should assert our political right > > to destroy a commercial enterprise by giving > > things away. > > Is that your political right? I haven't seen any evidence that says > that's the case. What makes you think that it is? 1776 (When was the Boston tea party? 1774?) > > If you look at the entire structure of "fair > > use" it comes down to the right of people to > > use speech non commercially. If you look at > > "open source" it is using code non commercially. > > Open source is not about using code non-commercially. Open source is > about making source code available to people to use and modify as they > wish. It has nothing to do with commercial vs. non-commercial. RedHat > SELLS open source software. Use and modify as they see fit... How is this commercial???? > > Open source isn't about some marxist revolution, eliminating the notion of Marxism: They pretend to pay us, and we pretend to work. Don't bore me. > making money from software. It is about making software that people can > actually look at and see what it is doing and modify that functionality > should they desire. The official notion of Open Source evolved out of the > Free Software movement, applying a more business oriented (commercial) > approach to the Free Software Foundation's liberty driven approach. It's > about encouraging people to open up their black boxes for the benefit of > themselves and the good of society, not taking them and prying them open > with a crowbar against their will. I write software for a living. It's the fact that I know how that software works which keeps me employed. Having written it means nothing at all. > > As a political statement, I'm in favor of > > destroying the commercial monopoly of big > > media. To me, DeCSS is political speech, > > pure and simple. They want to make money. > > I don't want them to make money. It's a very > > Why don't you want them to make money? What's wrong with making > money? There's nothing wrong with them making money, rather there is > something wrong with some of the practices they use to try to make > money. For example, licensing of DeCSS is a tool they use to control the > market in a way that is arguably a violation of anti-trust laws. That > being the case, that tool should be removed from them. But destroying > these companies isn't the answer. There's nothing wrong with making money, as long as you keep making reasons for making money. Living off the past is a piece of shit. Destroying companies which live off the past IS THE ANSWER. > ---Steve -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 01:39:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14725 for dvd-discuss-outgoing; Tue, 5 Sep 2000 01:39:01 -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 BAA14722 for ; Tue, 5 Sep 2000 01:39:00 -0400 Received: from Jana-Server (user-38ld6j6.dialup.mindspring.com [209.86.154.102]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id BAA02803 for ; Tue, 5 Sep 2000 01:39:41 -0400 (EDT) Message-ID: <39B4872C.52C904EB@mindspring.com> Date: Tue, 05 Sep 2000 01:39:57 -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: Re: [dvd-discuss] CSS vs. Access Control Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu While I was on a tangent about a return path being a necessary part of effective access control, it was pointed out that dongles were a counter-example. Since CSS wants to be considered to represent local authority, it is like a dongle. So, while I was looking for the dongle, I asked a couple of questions: > > In the case of dvd, isn't the player the dongle? > > Nope. You don't mass-produce identical dongles; that would totally > defeat their purpose. Each dongle is unique, just as a key is. Otherwise > it doesn't identify the people who are authorized to use software package > X but not package Y. > and also: > > so, the disk is the dongle, right? It's where the keys are. Strange > > animal...In the pc world, that would be like saying the dongle and the > > disk are one. We've been there before, I grew up RE'ing floppy disk > > protection schemes. Those kind of shackles always seemed like attractive > > nuisances to a hardware guy. > > Well, no --- the fact that the "keys" are physically attached to the > item that they protect is the reason that they *don't* provide > effective access control. > So, now I end up needing to ask, "where did the dongle go?" Where is the local authority? I was looking for a reason why CSS might not be considered EAC. And since it didn't have a way to phone home to receive authorization or to perform a money transaction, I thought those were good reasons. There is no call to the bank or to the rights holder, no local authority in the player or the disk. What effective access control can "actually work" like that? mickeym From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 02:52:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15205 for dvd-discuss-outgoing; Tue, 5 Sep 2000 02:52:41 -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 CAA15202 for ; Tue, 5 Sep 2000 02:52:39 -0400 Received: from swbell.net ([64.216.210.188]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0E004KFIVY9L@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 5 Sep 2000 01:47:59 -0500 (CDT) Date: Tue, 05 Sep 2000 01:39:51 -0500 From: Jolley Subject: Re: [dvd-discuss] Commercial vs. non-commercial speech To: dvd-discuss@eon.law.harvard.edu Message-id: <39B49537.93906E8E@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: <39B46F10.76C316DA@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > > If you look at the entire structure of "fair > use" it comes down to the right of people to > use speech non commercially. If you look at > "open source" it is using code non commercially. There are several definitions of commercial. I take it you dislike the "primarily for profit" definition. Another definition, which is the one you probably like, is "wide popular appeal." The two often go together and open source is commercial in both definitions. > > As a political statement, I'm in favor of > destroying the commercial monopoly of big > media. To me, DeCSS is political speech, > pure and simple. They want to make money. > I don't want them to make money. It's a very > simple equation to understand. The first > amendment makes it clear that I have the right > to express my political viewpoint. The > copyright clause makes their position far > less substantial. I shouldn't have to prove > anything, and they should have to prove > every inch. Good, bad, or indifferent, most businesses are in business to make money. That is their nature. The MPAA and the companies it represents are no different. They want to squeeze every last dollar of profit out of their products. Although you don't have this view, I don't mind that the movie industry can make a profit from their products. Every once in a while, they make a motion picture that I might want to purchase. I don't think they would (could) make motion pictures without making a profit. No profit, no more motion pictures. My own motives in participating in dvd-discuss are mostly selfish. The MPAA's egregious behavior of practicing what I would call "legal and psychological terrorism"[1] is another reason. They have stepped, no, make that jumped over the line. My selfish reasons include: 1. I want to view DVD disks on my computer using Linux. I find it hard to believe that the MPAA doesn't recognize the size of this market and how it is growing. A licensed Linux player will never make it in this market. I know I wouldn't buy one. 2. I want to media-shift DVDs that I purchase to VHS so I can view them on my TV when I don't want or can't use my computer. I'm sure this one scares the **** out of the MPAA. 3. I don't want anyone telling me that I can't put a hyperlink in any of my HTML documents. 4. I don't like being called a pirate when I'm totally against piracy. 5. I don't want to worry about, in addition to software patents, writing software that offends someones business model and not being able to use that software ever (unlike a patent that wears out over time.) 6. There are more but it's too late. I think helping the defendents in this case is the best thing to do in the short term. Only if they loose will I pursue some of the other actions that I talked about in other postings. I don't think all is lost and I believe the defendents have a strong case. In the long term, I'm paying closer attention to what is going on with congress. I suggest and hope you do the same. Maybe something good has come out of this. [1] Credit this term to Dennis Gawera. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 08:26:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA18203 for dvd-discuss-outgoing; Tue, 5 Sep 2000 08:26:35 -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 IAA18200 for ; Tue, 5 Sep 2000 08:26:34 -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 IAA19085 for ; Tue, 5 Sep 2000 08:27:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA13810; Tue, 5 Sep 2000 08:27:17 -0400 (EDT) Date: Tue, 5 Sep 2000 08:27:17 -0400 (EDT) Message-Id: <200009051227.IAA13810@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B4872C.52C904EB@mindspring.com> References: <39B4872C.52C904EB@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym@mindspring.com writes: > I was looking for a reason why CSS might not be considered EAC. And > since it didn't have a way to phone home to receive authorization or to > perform a money transaction, I thought those were good reasons. I still don't see why you dislike the criterion in the Judiciary Committee report, that a TPM act to prevent *unauthorized persons* from gaining access to a *specific work* that they are not authorized to view. CSS clearly doesn't do that --- CSS itself never prevents any DVD player from playing any DVD. And the "authorized person" criterion is one with fairly strong support in the legislative history, which makes it far more useful in court than ad hoc criteria cooked up on this list... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 08:32:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA18362 for dvd-discuss-outgoing; Tue, 5 Sep 2000 08:32:39 -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 IAA18359 for ; Tue, 5 Sep 2000 08:32:38 -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 IAA00214 for ; Tue, 5 Sep 2000 08:33:21 -0400 (EDT) Message-ID: <39B4E811.DA793362@mediaone.net> Date: Tue, 05 Sep 2000 08:33:21 -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] Commercial vs. non-commercial speech References: <39B46F10.76C316DA@mediaone.net> <39B49537.93906E8E@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: > Sphere wrote: > > > > If you look at the entire structure of "fair > > use" it comes down to the right of people to > > use speech non commercially. If you look at > > "open source" it is using code non commercially. > > There are several definitions of commercial. I take it you dislike > the "primarily for profit" definition. Another definition, which is > the one you probably like, is "wide popular appeal." The two often > go together and open source is commercial in both definitions. Commerce is selling things. > > > > As a political statement, I'm in favor of > > destroying the commercial monopoly of big > > media. To me, DeCSS is political speech, > > pure and simple. They want to make money. > > I don't want them to make money. It's a very > > simple equation to understand. The first > > amendment makes it clear that I have the right > > to express my political viewpoint. The > > copyright clause makes their position far > > less substantial. I shouldn't have to prove > > anything, and they should have to prove > > every inch. > > Good, bad, or indifferent, most businesses are in business to make > money. That is their nature. The MPAA and the companies it > represents are no different. They want to squeeze every last dollar > of profit out of their products. > > Although you don't have this view, I don't mind that the movie > industry can make a profit from their products. Every once in a while, > they make a motion picture that I might want to purchase. I don't > think they would (could) make motion pictures without making a profit. > No profit, no more motion pictures. My view is very simple. Big is bad. Businesses are the cellular structure of society. Big business is cancer. > My own motives in participating in dvd-discuss are mostly selfish. > The MPAA's egregious behavior of practicing what I would call > "legal and psychological terrorism"[1] is another reason. They have > stepped, no, make that jumped over the line. > > My selfish reasons include: > 1. I want to view DVD disks on my computer using Linux. I find it > hard to believe that the MPAA doesn't recognize the size of > this market and how it is growing. A licensed Linux player > will never make it in this market. I know I wouldn't buy one. > 2. I want to media-shift DVDs that I purchase to VHS so I can > view them on my TV when I don't want or can't use my computer. > I'm sure this one scares the **** out of the MPAA. > 3. I don't want anyone telling me that I can't put a hyperlink > in any of my HTML documents. > 4. I don't like being called a pirate when I'm totally against > piracy. > 5. I don't want to worry about, in addition to software patents, > writing software that offends someones business model and not > being able to use that software ever (unlike a patent that > wears out over time.) > 6. There are more but it's too late. > > I think helping the defendents in this case is the best thing to do > in the short term. Only if they loose will I pursue some of the other > actions that I talked about in other postings. I don't think all is > lost and I believe the defendents have a strong case. Helping the defendents is usefull, but not the only usefull thing to do now. While there is a legal aspect to this war, the political aspect is more important. Making people aware of that Descramble song; which I learned about here, is just as important. > In the long term, I'm paying closer attention to what is going on > with congress. I suggest and hope you do the same. Maybe something > good has come out of this. Always watch the watchdogs. > [1] Credit this term to Dennis Gawera. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 09:39:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19812 for dvd-discuss-outgoing; Tue, 5 Sep 2000 09:39:47 -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 JAA19809 for ; Tue, 5 Sep 2000 09:39:46 -0400 Received: from Jana-Server (user-38ld6i7.dialup.mindspring.com [209.86.154.71]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id JAA06856 for ; Tue, 5 Sep 2000 09:40:28 -0400 (EDT) Message-ID: <39B4F7F8.23A80CC9@mindspring.com> Date: Tue, 05 Sep 2000 09:41:12 -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] CSS vs. Access Control Content-Type: text/plain; charset=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: > mickeym@mindspring.com writes: > > I was looking for a reason why CSS might not be considered EAC. And > > since it didn't have a way to phone home to receive authorization > or to > > perform a money transaction, I thought those were good reasons. > > I still don't see why you dislike the criterion in the Judiciary > Committee report, that a TPM act to prevent *unauthorized persons* > from gaining access to a *specific work* that they are not authorized > to view. > > CSS clearly doesn't do that --- CSS itself never prevents any DVD > player from playing any DVD. And the "authorized person" criterion is > one with fairly strong support in the legislative history, which makes > it far more useful in court than ad hoc criteria cooked up on this > list... I very much like the criteria that a TPM act to prevent *unauthorized persons*, and I'm trying to rationalize how that would be done on a per access basis. The way I think it would have to be done is by a transaction of some sort, which CSS is not capable of doing, hence my being stuck on the "return path" bit. From the report you cited: > ... an access control technology under section 1201(a) would not > necessarily prevent access to a work altogether, but could be > designed to allow access during a limited time period, such as > during a period of library borrowing. Technological measures are > Which is like a timed dongle, that has to be returned to be enabled again. Citation continued: > also essential to a distribution strategy that allows a consumer to > purchase a copy of a single article from an electronic database, > rather than having to pay more for a subscription to a journal > containing many articles the consumer does not want. > Which would be a negotiated transaction for a selected excerpt with narrowed payment > Again, the focus is on measures which perform affirmative checks as to > whether a *person* has been authorized to view a work, and which have > An affirmative check on a person's authority status must be done over a channel that comes from the person and goes to the rights holder, which is in an opposite direction to the channel that the work came from, thus a "return path" is necessary in these examples. CSS can't do that. > the *effect* of denying access to unauthorized persons. That is "the > defined way of controlling access to a work", and CSS clearly is not > within the scope of this definition. The CSS technology is not an > effective access control. > I agree. Since a standalone device cannot know when *my* status changes without querying something, it cannot be an effective access control by the definition and examples in the cited report. Even if it were a stored value card system, there comes a point where the card has to be pumped up again, through some kind of transaction. CSS cannot be an EAC without a communication path back to the authority grantor, be it a radio link, the cable system, a phone line, the USPS, or taking it back to the store. mickeym From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:32:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA21211 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:32:18 -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 KAA21208 for ; Tue, 5 Sep 2000 10:32:16 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.10.1/8.9.3) with ESMTP id e85EWxV25300 for ; Tue, 5 Sep 2000 09:32:59 -0500 Date: Tue, 5 Sep 2000 09:32:59 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercial vs. non-commercial speech In-Reply-To: <39B4E811.DA793362@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 > My view is very simple. Big is bad. > Businesses are the cellular structure of > society. Big business is cancer. I used to think that myself, but this isn't really true. Some businesses, must be big in order to accomplish things in any reasonably efficient manner. In markets for goods that are commoditized, the only way to make money in that business is to be big. Automobile manufacturing, global shipping, and global network infrastructure are a few examples of operations that just don't happen in a small company. Ultimately being bigger increases overall efficiency and reduces costs to the consumer. Now, having said that, certainly some businesses attain a large size and tremendous clout through illegal or at the least unethical means. These are the sorts of things that we should be cautious about and try to weed out of the system. To further your metaphor, is the business a cancer or is it a kidney, brain or liver? It may very well be true that the media create more harm than benefit, but attack them for what they do wrong, not for the fact that they are big. If they are unfairly getting a one up on everybody else and raising barriers to entry, tear down those barriers and make them compete. If they aren't meant to be then evolution will give them what for and if they can't adapt to survive on a level playing ground then they will die. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:47:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22551 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:47:06 -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 KAA22544 for ; Tue, 5 Sep 2000 10:47:04 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 16:35:46 +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, 5 Sep 2000 08:21:39 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 08:21:39 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000905082139.B5961@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 Consilgere@cs.com wrote: > << what about the declaration of independence? > > it is both, words and action.>> > > I dont see the Declaration of Independance as action, but maybe you could > enlighten me. > It was a declaration of the intent of people to rebel against their leader. > The action could have taken place without the declaration. it *was* (one of the steps of) the rebellion. declaring your intent to be free *is* treachery in non-free societies. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:47:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22557 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:47:08 -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 KAA22550 for ; Tue, 5 Sep 2000 10:47:06 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 16:35:46 +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, 5 Sep 2000 08:22:54 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 08:22:54 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000905082254.C5961@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: > >No, but I do believe that changing a few bits around on a bank's computer > >can > >empty someone's bank account > > Bzzt. Auditing trails allow a determination of > where the money went, and came from. Thus, while you could > move it, you could be caught and it could be moved back. auditing trails are just further pieces of information. that invalidates the "a few bits", but not the point. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:47:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22566 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:47:12 -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 KAA22562 for ; Tue, 5 Sep 2000 10:47:09 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 16:35:46 +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, 5 Sep 2000 08:26:13 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 08:26:13 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] (fwd) ALERT: FCC considers restricting digital Message-ID: <20000905082613.D5961@lemuria.org> References: <39AA61CE.49277094@travel-net.com> <00082809134500.01422@frankenstein.lumbercartel.com> <39AA96A6.EB2EE452@mit.edu> <39AAFFB7.421B5014@swbell.net> <39B42F5A.50A3C8DF@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 Ron Gustavson wrote: > If we can approve of anything, it would be DVDs that are > not CSS'd and/or are Region #0. This actually would be a > worthwhile endeavor. Lots of vintage movies, music, porn, and > specialty titles are coming out as region #0. I bet a lot of these > are not CSS'd either. since I am apparently NOT buying a full set of rights when I buy a CSS'ed DVD, I think they should be marked. otherwise I would expect to buy the same rights that I buy with a CD. the MPAA would surely not want to fool their customers, would they? (this is a rhetorical question, you need *not* answer it) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:47:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22574 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:47:14 -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 KAA22571 for ; Tue, 5 Sep 2000 10:47:13 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 16:35:46 +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, 5 Sep 2000 08:31:27 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 08:31:27 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] summary of CSS evils? Message-ID: <20000905083127.E5961@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 for a very serious thing I'm currently working on (no details yet, but you'll be among the first to know), it would help me a lot if you could help me sum up in short all the evils of MPAA/CSS we're fighting, and if possible with quotable references (such as the great quote I got for "CSS exists for the purpose of forcing this whole thing unto the LEGAL battlefield"). -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:47:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA22540 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:47:03 -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 KAA22536 for ; Tue, 5 Sep 2000 10:47:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 16:35:45 +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, 5 Sep 2000 08:19:53 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 08:19:53 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000905081953.A5961@lemuria.org> References: <6b.94e105d.26e59a16@cs.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <6b.94e105d.26e59a16@cs.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 Consilgere@cs.com wrote: > because it may in the same instance be used to DEFEND those rights (e.g. > guns). >> > Then defend the programs on those grounds! Not based on its being speech. unfortunately, there's no mentioning of software in the constitution. (not that I'd know it by heart - I'm not american) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 10:57:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA23090 for dvd-discuss-outgoing; Tue, 5 Sep 2000 10:57:19 -0400 Received: from imo-d05.mx.aol.com (imo-d05.mx.aol.com [205.188.157.37]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA23087 for ; Tue, 5 Sep 2000 10:57:18 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-d05.mx.aol.com (mail_out_v28.15.) id x.ac.a17833a (4315) for ; Tue, 5 Sep 2000 10:57:22 -0400 (EDT) Message-ID: Date: Tue, 5 Sep 2000 10:57:22 EDT 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" 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 9/4/00 11:38:37 PM Eastern Daylight Time, rongus@tiac.net writes: << Changing--not knowing how to change. >> But the difference is becoming marginal at most if it isn't completely erased already. << Should SQL be illegal? >> No, of course not. But the reason has absolutely nothing to do with speech. It's the same reason we don't illegalize those extremely dangerous shipper-shredders. As long as it's a tool with a 100% legitimate purpose (like using DeCSS to unlock the encryption on a legally purchased DVD), the government has no business in regulating its existence. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:04:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23246 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:04:28 -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 LAA23243 for ; Tue, 5 Sep 2000 11:04:27 -0400 Received: from localhost (khockenb@localhost) by attila.stevens-tech.edu (8.9.3/8.9.3/7) with ESMTP id LAA5925675 for ; Tue, 5 Sep 2000 11:05:11 -0400 (EDT) Date: Tue, 5 Sep 2000 11:05:11 -0400 From: Kurt Hockenbury To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Infoworld column on DeCSS and the MPAA Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "I guess the only solution if the MPAA has its way is to shut down the Internet" http://www.infoworld.com/articles/op/xml/00/09/04/000904opprophet.xml From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:14:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23980 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:14:20 -0400 Received: from imo-r04.mx.aol.com (imo-r04.mx.aol.com [152.163.225.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA23977 for ; Tue, 5 Sep 2000 11:14:18 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r04.mx.aol.com (mail_out_v28.15.) id x.66.7282f0a (4315) for ; Tue, 5 Sep 2000 11:14:28 -0400 (EDT) Message-ID: <66.7282f0a.26e667d4@cs.com> Date: Tue, 5 Sep 2000 11:14:28 EDT 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" 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 9/5/00 12:48:56 AM Eastern Daylight Time, olc@cs.umass.edu writes: << Right. Explain again how "freedom of speech" isn't relevant? >> Because he would, in my perfect world, be violating a legitimate TPM restriction. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:22:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24300 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:22:11 -0400 Received: from imo-r14.mx.aol.com (imo-r14.mx.aol.com [152.163.225.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA24297 for ; Tue, 5 Sep 2000 11:22:10 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r14.mx.aol.com (mail_out_v28.15.) id x.29.9c8d343 (4315) for ; Tue, 5 Sep 2000 11:22:07 -0400 (EDT) Message-ID: <29.9c8d343.26e6699f@cs.com> Date: Tue, 5 Sep 2000 11:22:07 EDT 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" 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 9/5/00 10:49:16 AM Eastern Daylight Time, tom@lemuria.org writes: << it *was* (one of the steps of) the rebellion. declaring your intent to be free *is* treachery in non-free societies. >> Ok. First, it was an optional and unnecessary step. And on top of that, the speech was 100% political, and therefore, by our standards, subject to virtually no restrictions on the speech's content. Secondly, we do live in a free society. mostly. Declaring intentions is nothing in our society, with the exception of maybe threatening a head of state or telling mindless drones to follow through with your threat. Following through on it is something entirely different. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:24:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24492 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:24:55 -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 LAA24489 for ; Tue, 5 Sep 2000 11:24:54 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id IAA07444 for ; Tue, 5 Sep 2000 08:23:29 -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 smtpdAAA1da4ko; Tue Sep 5 08:23:11 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 IAA07069 for ; Tue, 5 Sep 2000 08:25:12 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Tue, 5 Sep 2000 08:21:47 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00090508244700.10863@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, 05 Sep 2000, Consilgere@cs.com wrote: > In a message dated 9/4/00 11:38:37 PM Eastern Daylight Time, rongus@tiac.net > writes: > > << Changing--not knowing how to change. >> > But the difference is becoming marginal at most if it isn't completely erased > already. There, you've said it. Thank you. At this point I think that you've made your position quite clear, as have we. They are fundamentally irreconcilable, and neither side is going to change any minds by continuing. So what say we agree to disagree, and those of us interested in accumulating ammunition for use against DVDCCA and the DMCA can get back to doing so, while you can go and work to get the First Amendment repealed. -- | 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 Sep 5 11:26:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24539 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:26:48 -0400 Received: from dial181.roadrunner.com (sf-du181.cybermesa.com [209.12.75.181]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA24534 for ; Tue, 5 Sep 2000 11:26:43 -0400 Received: (from paul@localhost) by dial181.roadrunner.com (8.8.7/8.8.7) id JAA00810 for dvd-discuss@eon.law.harvard.edu; Tue, 5 Sep 2000 09:29:07 -0600 Date: Tue, 5 Sep 2000 09:29:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercial vs. non-commercial speech Message-ID: <20000905092906.A576@localhost> References: <4.3.2.7.2.20000904211454.00aaced0@cyberpass.net> <39B479CB.72702CB6@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39B479CB.72702CB6@mediaone.net>; from sphere1952@mediaone.net on Tue, Sep 05, 2000 at 12:42:51AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Fair use is ostensibly there to preserve liberty, not the non-commercial sector. James Tyre is saying that fair use is not simply the non-commerical exercise of an exclusive right. The fair use of an exclusive right can be commercial through and through and for other reasons it can still be "fair". Campbell v. Acuff-Rose 510 U.S. 569 (1994). >From the _holdings_: (c) The Court of Appeals properly assumed that 2 Live Crew's song contains parody commenting on and criticizing the original work, but erred in giving virtually dispositive weight to the commercial nature of that parody by way of a presumption, ostensibly culled from Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 , that "every commercial use of copyrighted material is presumptively . . . unfair. . . ." The statute makes clear that a work's commercial nature is only one element of the first factor enquiry into its purpose and character, and Sony itself called for no hard evidentiary presumption. The Court of Appeals' rule runs counter to Sony and to the long common law tradition of fair use adjudication. Pp. 12-16. On Tue, Sep 05, 2000 at 12:42:51AM -0400, Sphere wrote: > > "James S. Tyre" wrote: > > > > At 11:57 PM 9/4/2000 -0400, Sphere wrote: > > > > >If you look at the entire structure of "fair > > >use" it comes down to the right of people to > > >use speech non commercially. > > > > Just a suggestion, but it sometimes helps to learn the law before talking > > about the law. > > I'm talking politics. Not law. It is the > same politics which created the first > amendment intially. The law is just a bunch > of noise which has resulted in the aftermath. > > This is war, after all. > > > See the USSC decision, for example, in Campbell v. Acuff-Rose Music. 2 > > Live Crew's very profitable parody of Roy Orbison's "Oh, Pretty Woman" > > upheld as fair use. > > > > (Damn, now I want to hear "Oh, Pretty Woman", a classic. Think I can find > > it on any of the free .mp3 sharing services? ;-) > > Well... It's a strange war. ;) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:31:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24705 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:31:41 -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 LAA24702 for ; Tue, 5 Sep 2000 11:31:39 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by imo-r16.mx.aol.com (mail_out_v28.15.) id x.a7.714cd37 (4315) for ; Tue, 5 Sep 2000 11:31:49 -0400 (EDT) Message-ID: Date: Tue, 5 Sep 2000 11:31:47 EDT 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" 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 9/5/00 10:50:21 AM Eastern Daylight Time, tom@lemuria.org writes: << unfortunately, there's no mentioning of software in the constitution. >> There's no mention of forklifts either. But as a tool, it's pretty much left alone. Most tools are. If we drop the free speech smoke and mirrors and focus on DeCSS being a tool with a 100% legitimate purpose, we can get much further than we are right now. (to paraphrase 2600, if you can make a toaster play DVDs, you have a right to watch DVDs on your toaster. DeCSS is one of the modifications that we'd have to make to the toaster. Ergo, DeCSS has a legitimate purose for existing, and the gov't has no business in illegalizing it) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:33:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25023 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:33:33 -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 LAA25012 for ; Tue, 5 Sep 2000 11:33:32 -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 LAA11263 for ; Tue, 5 Sep 2000 11:34:16 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA15678; Tue, 5 Sep 2000 11:34:16 -0400 (EDT) Date: Tue, 5 Sep 2000 11:34:16 -0400 (EDT) Message-Id: <200009051534.LAA15678@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B4F7F8.23A80CC9@mindspring.com> References: <39B4F7F8.23A80CC9@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu mickeym@mindspring.com writes: > I very much like the criteria that a TPM act to prevent *unauthorized > persons*, and I'm trying to rationalize how that would be done on a per > access basis. The way I think it would have to be done is by a > transaction of some sort, which CSS is not capable of doing, hence my > being stuck on the "return path" bit. Well, it does have to involve a transaction of some sort, mediated somehow, possibly quite indirectly, simply because it's meaningless to speak of a copyright holder authorizing someone if neither they nor any of their agents are aware that the "authorized" person even exists. But the "return path" notion, and even a refined version where you insist that a *transaction* take place over the "return path", could be subject to funny semantic games --- "the DVDCCA is our agent, the player manufacturers are our agents through it, and buying a player is a transaction indirectly through them --- hoo-hah, there's your transaction and your return path!" Sleazy and distorted, perhaps, but no worse than "it's cryptography, therefore it's an access control" (consistently their argument thus far). Which is why I prefer to apply the "authorized person" test *directly* --- it's simple, direct, easier for a judge to understand than anything involving technical implementation details, harder to twist, and also flunks CSS. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 11:48:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA26211 for dvd-discuss-outgoing; Tue, 5 Sep 2000 11:48:15 -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 LAA26208 for ; Tue, 5 Sep 2000 11:48:15 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id LAA13276 for ; Tue, 5 Sep 2000 11:48:59 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA15730; Tue, 5 Sep 2000 11:48:59 -0400 (EDT) Date: Tue, 5 Sep 2000 11:48:59 -0400 (EDT) Message-Id: <200009051548.LAA15730@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] summary of CSS evils? In-Reply-To: <20000905083127.E5961@lemuria.org> References: <20000905083127.E5961@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > for a very serious thing I'm currently working on (no details yet, but > you'll be among the first to know), it would help me a lot if you could > help me sum up in short all the evils of MPAA/CSS we're fighting, and if > possible with quotable references (such as the great quote I got for "CSS > exists for the purpose of forcing this whole thing unto the LEGAL > battlefield"). Well, I hope you're quoting Marks there and not me; I doubt my views carry any particular weight in the court of public opinion, but his do (as a representative of Time-Warner itself). That said, I've found in trying to explain this all to people who haven't followed the case, and have no particular fondness for copyright infringement, that region coding is the one aspect of the CSS license terms that they object to immediately, both because it's money-grubbing restraint of trade point, and because it restricts of cross-cultural discourse. Other things that might be worth citing are: *) Impaired fair use of DVD-only content (already extant --- extended and alternate cuts, and interviews with filmmakers and others, e.g., the real astronaut Jim Lovell on the Apollo 13 DVD movie). *) Even if you have a high-resolution display device, it won't let you use it to see the digital data on *your disk* at high resolution. *) Explicit support of government censorship regimes (on the testimony of Marks). *) And last but hardly least, the effective indefinite patent, without any requirement for original work (on their flawed reading of the DMCA). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 12:14:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27340 for dvd-discuss-outgoing; Tue, 5 Sep 2000 12:14:10 -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 MAA27337 for ; Tue, 5 Sep 2000 12:14:08 -0400 Message-ID: <20000905161422.7403.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Tue, 05 Sep 2000 09:14:22 PDT Date: Tue, 5 Sep 2000 09:14:22 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Commercial vs. non-commercial 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: > > Just a suggestion, but it sometimes helps to learn the law before > > talking about the law. > > I'm talking politics. Not law. It is the > same politics which created the first > amendment intially. The law is just a bunch > of noise which has resulted in the aftermath. You sound like you are having a hard time dealing with being wrong. Perhaps a dose of humility would ease your distress. > This is war, after all. No, this is Openlaw. Perhaps you are posting to the wrong list? __________________________________________________ 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 Sep 5 13:01:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28422 for dvd-discuss-outgoing; Tue, 5 Sep 2000 13:01:25 -0400 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA28419 for ; Tue, 5 Sep 2000 13:01:23 -0400 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id NAA29118 for ; Tue, 5 Sep 2000 13:02:07 -0400 (EDT) Message-Id: <4.2.2.20000905111632.019397b0@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 05 Sep 2000 13:01:57 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] code as speech 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 Let's see if we can bring this thread to a conclusion, because I think we're putting up lots of straw men that don't help us to advance the argument on either side. On the one hand, even Kaplan seems willing to concede that code is "speech." There are expressions of ideas in source and even executable code. In some cases, source or object code will be the best mode of expressing a technical idea or conveying knowledge about a system. On the other hand, DeCSS code at least makes it easier for some people to decrypt CSS. When executed on a computer with all the other necessary components, DeCSS helps one to read .and decrypt .vob files. It has a "functional" element, though we can disagree on whether that "function" is more evident in code than in the Anarchist's Cookbook. Kaplan describes his finding of functionality as "a proxy for the consequences of use" (60), then says essentially that anyone who posts code on the Internet must presume that someone will download and use it. "Given the virtually instantaneous and worldwide dissemination widely available via the Internet, 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). The speech value of code is outweighed for him by its use value. Without quite saying so, Kaplan pigeonholes code-speech alongside obscenity and "expressive conduct" as disfavored. As one line of argument, and probably one secondary to the claim that even a purely functional tool must be permitted to bypass CSS as necessary to enable fair use, we need to fight against Kaplan's resolution of the speech v. harm balance. As a practical matter, it's probably not useful to argue that DeCSS is not "functional" -- it will be "obvious" to most judges that the code can be used as a tool. In a sense, functionality is not just a "secondary effect" of code's expressive nature but an integral part of its expression. Code that did not help one to see how to perform a computer operation might express something, but many would not find it to be very valuable expression (Perl poetry aside). So, we need to argue that using "function" to justify the prohibition of speech will put a prior restraint on the most expressive forms of communication about technical matters. Moreover, the "proxy" doesn't work if a key causal step between publication and use -- the human put the program on a computer and execute it -- must be presumed whenever code is on the Internet. This reading of the DMCA is overbroad because it strikes an entire mode of speech from a medium the SC has held to deserve the same protection as print. To those who don't like the code-as-speech argument, help us develop the fair-use-enablement argument instead. Or give us specific counterarguments to work against. I'd suggest we stop trying to find the essential nature of code, though. Thanks! --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 13:03:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28499 for dvd-discuss-outgoing; Tue, 5 Sep 2000 13:03:16 -0400 Received: from web1609.mail.yahoo.com (web1609.mail.yahoo.com [128.11.23.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA28493 for ; Tue, 5 Sep 2000 13:03:15 -0400 Received: (qmail 20614 invoked by uid 60001); 5 Sep 2000 17:03:58 -0000 Message-ID: <20000905170358.20613.qmail@web1609.mail.yahoo.com> Received: from [208.203.44.130] by web1609.mail.yahoo.com; Tue, 05 Sep 2000 10:03:58 PDT Date: Tue, 5 Sep 2000 10:03:58 -0700 (PDT) From: Zach Kenyon Subject: Re: [dvd-discuss] Commercial vs. non-commercial 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: > > I think we should assert our political right > to destroy a commercial enterprise by giving > things away. > > If you look at the entire structure of "fair > use" it comes down to the right of people to > use speech non commercially. If you look at > "open source" it is using code non commercially. Along these lines, this story on Slashdot seems to drive this point home - http://slashdot.org/article.pl?sid=00/09/05/0548211&mode=thread The issue is that some folks have REd the Cue:Cat drivers to make them work under linux (sound familiar?). Digital Convergance was none too pleased at that and has demanded that everyone with the new drivers take them down so that Digital Convergance's IP may be protected. Anyway, take a sec to look it over, but especially read this post here - http://slashdot.org/comments.pl?sid=00/09/05/0548211&threshold=0&commentsort=3&mode=thread&cid=46 It dovetails nicely with the post I'm responding to here... __________________________________________________ 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 Sep 5 13:43:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30132 for dvd-discuss-outgoing; Tue, 5 Sep 2000 13:43:38 -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 NAA30129 for ; Tue, 5 Sep 2000 13:43:37 -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 MAA07720 for ; Tue, 5 Sep 2000 12:44:21 -0500 (CDT) Message-ID: <39B5311A.2F2E4D27@uic.edu> Date: Tue, 05 Sep 2000 12:44:58 -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] CSS vs. Access Control Content-Type: text/plain; charset=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: > I grew up RE'ing floppy disk protection > schemes. Those kind of shackles always > seemed like attractive nuisances to a hardware > guy. Here here! I would probably have never learned Apple II machine language if each game my parents bought me hadn't come with the bonus challenge of removing the copy protection! From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 14:50:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31209 for dvd-discuss-outgoing; Tue, 5 Sep 2000 14:50:51 -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 OAA31206 for ; Tue, 5 Sep 2000 14:50:49 -0400 Message-ID: <20000905185103.6189.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 05 Sep 2000 11:51:03 PDT Date: Tue, 5 Sep 2000 11:51:03 -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 --- Wendy Seltzer wrote: > Kaplan describes his finding of functionality as "a proxy for the > consequences of use" (60), then says essentially that anyone who > posts code on the Internet must presume that someone will download > and use it. "Given the virtually instantaneous and worldwide > dissemination widely available via the Internet, 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). The speech value of code is outweighed for > him by its use value. Without quite saying so, Kaplan > pigeonholes code-speech alongside obscenity and > "expressive conduct" as disfavored. By applying the O'Brien standard, he actually decides that distributing code is "expressive conduct". He found that functionality was a "nonspeech" element that dominated over the incidental speech elements that were not the target of the statute. I think the problem is that functionality is NOT conduct at all, and an O'Brien analysis should be a non-starter, since it is a standard for banning symbolic conduct. O'Brien was convicted for the actual act of burning his card, not for carrying a lighter whose functionality allowed this, nor for advocating the burning of draft cards. I think we should argue that a strict scrutiny standard akin to those used for aiding and abetting cases should be used. Aside from this, I think the message of the Bernstein decision is that we need to ask WHEN does an idea become functional. The court there ruled that source code was not functional and lambasted the governement for suggesting otherwise. I would argue that true functionality is created only at installation, when the code marries with machine. Kaplan's "only rational assumption" sentence really undermines his whole argument for O'Brien. First, he reverts back to the language that DeCSS is merely "capable" of decryption, when O'Brien depends on it actually being conduct, not capability of conduct. O'Brien is not a contributory liability standard. At best, O'Brien gives the start of an argument that would uphold 1201(a)(1). Second, his point is simply misplaced, since if DeCSS is "used" it does not follow that substantial government interest in avoiding piracy is impacted. For example, Derek Fawcus used DeCSS to augment the interoperability of LiViD, David Touretzky used DeCSS to illustrate the lack of boundary between traditional speech and object code, Frank Stevenson used DeCSS to engage in encryption research. Johansen himself "used" DeCSS to watch his own DVD's on his Linux OS, which even now, is not banned by the DMCA. A correct analysis must inquire into the nature of the use. This should produce a "substantial noninfringing uses" standard. If one audience can receive DeCSS and use it without engaging in piracy, then even intermediate scrutiny demands that an alternate avenue for communication exist before the conduct can be banned. Intermediate scrutiny requires a determination that the inhibition of free speech is not overly burdensome. Kaplan's "fair use community" reasoning is an abdication of his responsibility as required by the O'Brien standard. "Regulations like this one which burden protected speech are not to be rubber-stamped." Horton v. Houston, No. 98-20031 (5th Cir. 1999) __________________________________________________ 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 Sep 5 14:58:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31740 for dvd-discuss-outgoing; Tue, 5 Sep 2000 14:58:15 -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 OAA31737 for ; Tue, 5 Sep 2000 14:58:14 -0400 Message-ID: <20000905185827.18956.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 05 Sep 2000 11:58:27 PDT Date: Tue, 5 Sep 2000 11:58:27 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Reply Comments Due Today To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 reminder that today Sept 5, reply comments are due to the copyright office on the section 109 and 117 inquiries. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&docid=00-14001-filed __________________________________________________ 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 Sep 5 15:04:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31907 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:04:51 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31904 for ; Tue, 5 Sep 2000 15:04:50 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id PAA25043 for dvd-discuss@eon.law.harvard.edu; Tue, 5 Sep 2000 15:05:34 -0400 (EDT) Date: Tue, 5 Sep 2000 15:05:34 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] summary of CSS evils? Message-ID: <20000905150533.B24890@ils.unc.edu> References: <20000905083127.E5961@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i In-Reply-To: <20000905083127.E5961@lemuria.org>; from tom@lemuria.org on Tue, Sep 05, 2000 at 08:31:27AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom, I wrote a little essay in April that might fit the bill. http://ils.unc.edu/gbnewby/DVD (the "high road"). The main points are fair use and right of first sale. -- Greg On Tue, Sep 05, 2000 at 08:31:27AM +0200, Tom Vogt wrote: > for a very serious thing I'm currently working on (no details yet, but > you'll be among the first to know), it would help me a lot if you could > help me sum up in short all the evils of MPAA/CSS we're fighting, and if > possible with quotable references (such as the great quote I got for "CSS > exists for the purpose of forcing this whole thing unto the LEGAL > battlefield"). From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:07:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31963 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:07:11 -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 PAA31959 for ; Tue, 5 Sep 2000 15:07:06 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 20:57:18 +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, 5 Sep 2000 20:53:05 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 20:53:05 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Commercial vs. non-commercial speech Message-ID: <20000905205305.J5961@lemuria.org> References: <39B46F10.76C316DA@mediaone.net> <39B49537.93906E8E@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B49537.93906E8E@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: > Good, bad, or indifferent, most businesses are in business to make > money. That is their nature. The MPAA and the companies it > represents are no different. They want to squeeze every last dollar > of profit out of their products. there's a difference between being in the game for the money and squeezing every last dollar out of your customers. it's not even got much to do with "business ethics" - it's a question of sustaining or exploiting your market. > they make a motion picture that I might want to purchase. I don't > think they would (could) make motion pictures without making a profit. > No profit, no more motion pictures. agree. not many people ask for death and destruction for the studios. on the other hand, the MPAA is *not* in the business of creating and selling creative work. they're in the business of lobbyism. I wouldn't mind if they declare bancruptcy tomorrow. > in any of my HTML documents. > 4. I don't like being called a pirate when I'm totally against > piracy. > 5. I don't want to worry about, in addition to software patents, > writing software that offends someones business model and not > being able to use that software ever (unlike a patent that > wears out over time.) > 6. There are more but it's too late. 6. I see the DVD technology as an interesting future perspective for mass storage, and I don't want to have it controlled in any significant way by a single, artificial "authority". -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:07:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31955 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:07:02 -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 PAA31951 for ; Tue, 5 Sep 2000 15:07:00 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 20:57:18 +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, 5 Sep 2000 20:48:02 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 20:48:02 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000905204802.I5961@lemuria.org> References: <39B4872C.52C904EB@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B4872C.52C904EB@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: > So, now I end up needing to ask, "where did the dongle go?" Where is the > local authority? judging from the recent quote here about the PURPOSE of CSS, as well as some of the things both MPAA and kaplan said in NY, I'd chance a guess: the local authority has NO physical representation. it exists in the contract between you, the content holder and the DVD CCA. yeah, that's pretty dubious. but doesn't the whole CSS scheme smell more like a protection money system than a business model? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:14:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32109 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:14:47 -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 PAA32105 for ; Tue, 5 Sep 2000 15:14:22 -0400 Received: from localhost (riel@localhost) by duckman.distro.conectiva (8.9.3/8.8.7) with ESMTP id QAA17637; Tue, 5 Sep 2000 16:14:23 -0300 X-Authentication-Warning: duckman.distro.conectiva: riel owned process doing -bs Date: Tue, 5 Sep 2000 16:14:23 -0300 (BRST) From: Rik van Riel X-Sender: riel@duckman.distro.conectiva To: Jiaqing Bao cc: feedback@opendvd.org, dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: About DeCSS links In-Reply-To: <39B489ED.D366CE02@ms43.hinet.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu [I got this on the feedback address of the opendvd.org site] On Tue, 5 Sep 2000, Jiaqing Bao wrote: > Let's say if I provided a link to a DeCSS distribution page > befor it was availiable. Then weeks or months later, the linked > site distributed DeCSS. Would they sue me? I believe your site would be in violation of the NY court order and you may be found in contempt of the court and/or punishable, but IANAL so I've forwarded your question to the dvd-discuss list (who may be better able to find you an answer). > If I was not linking to that particular file, but to someone's > index page or software distribution page before their > distribution of DeCSS, will it gets me into trouble? > > It's not my business, it's an imaginary situation. I am doing my > research into this subject. So far I have to say this witch hunt is > bloody ugly. It's kind of legal blackmail to the general public. We paid > for the government and the legal system to protect us, they took it over > by starting a witch hunt. > > Maybe one day I will distribute my DeCSS.zip. I can pack some DeCSS > banner graphics in an archive and distribute it freely. Or I can package > five public domain books started with letters D, E, C, S, S. It will be > fun if I run into one author who had written five books this way. > Anyway, it's unbearable. > > > Thank you for your good fight, > Jiaqing Bao > - > Opendvd: list for the maintainers of OpenDVD.org > Website: http://www.opendvd.org/ > 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 Tue Sep 5 15:16:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32226 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:16:59 -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 PAA32221 for ; Tue, 5 Sep 2000 15:16:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 21:09:26 +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, 5 Sep 2000 21:04:37 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 21:04:37 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] summary of CSS evils? Message-ID: <20000905210437.B7468@lemuria.org> References: <20000905083127.E5961@lemuria.org> <200009051548.LAA15730@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200009051548.LAA15730@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: > > exists for the purpose of forcing this whole thing unto the LEGAL > > battlefield"). > > Well, I hope you're quoting Marks there and not me; paraphrasing him, yes. > views carry any particular weight in the court of public opinion, but > his do (as a representative of Time-Warner itself). exactly. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:16:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32217 for dvd-discuss-outgoing; Tue, 5 Sep 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 PAA32213 for ; Tue, 5 Sep 2000 15:16:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 21:09:26 +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, 5 Sep 2000 21:02:35 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 21:02:35 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000905210235.A7468@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 Consilgere@cs.com wrote: > << unfortunately, there's no mentioning of software in the constitution. >> > There's no mention of forklifts either. But as a tool, it's pretty much left > alone. Most tools are. If we drop the free speech smoke and mirrors and > focus on DeCSS being a tool with a 100% legitimate purpose, we can get much > further than we are right now. yes, that's what I've been saying for a long time, with all the examples of "we don't outlaw x". you in the states have maybe an easier time arguing - guns are legal, shooting someone is one of the highest crimes (just after posting DeCSS to a webpage, of course). > (to paraphrase 2600, if you can make a toaster play DVDs, you have a right > to watch DVDs on your toaster. DeCSS is one of the modifications that we'd > have to make to the toaster. Ergo, DeCSS has a legitimate purose for > existing, and the gov't has no business in illegalizing it) we agree on that. how to convince government/judge to step out of the ring and let the forces of a free market decide? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:17:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32342 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:17:50 -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 PAA32338 for ; Tue, 5 Sep 2000 15:17:48 -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 PAA10201 for ; Tue, 5 Sep 2000 15:18:33 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA17607; Tue, 5 Sep 2000 15:18:32 -0400 (EDT) Date: Tue, 5 Sep 2000 15:18:32 -0400 (EDT) Message-Id: <200009051918.PAA17607@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000905204802.I5961@lemuria.org> References: <39B4872C.52C904EB@mindspring.com> <20000905204802.I5961@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > judging from the recent quote here about the PURPOSE of CSS, as well as > some of the things both MPAA and kaplan said in NY, I'd chance a guess: > > the local authority has NO physical representation. it exists in the > contract between you, the content holder and the DVD CCA. Except that there *is* no contract between the viewer and the copyright holder (or, for that matter the DVDCCA). Marks freely admitted to this at the Stanford hearing, and Kaplan said that it was "perfectly obvious" in the course of the trial. You are not supposed to build your own device to read your own DVDs not because that violates some contract that you are a party to, but (according to the MPAA) because doing so would circumvent their phony "access control". rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:19:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32416 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:19:20 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA32412 for ; Tue, 5 Sep 2000 15:19:19 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id PAA10400 for ; Tue, 5 Sep 2000 15:20:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA17615; Tue, 5 Sep 2000 15:20:04 -0400 (EDT) Date: Tue, 5 Sep 2000 15:20:04 -0400 (EDT) Message-Id: <200009051920.PAA17615@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] summary of CSS evils? In-Reply-To: <200009051548.LAA15730@soggy-fibers.ai.mit.edu> References: <20000905083127.E5961@lemuria.org> <200009051548.LAA15730@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: > That said, I've found in trying to explain this all to people who > haven't followed the case, and have no particular fondness for > copyright infringement, that region coding is the one aspect of the > CSS license terms that they object to immediately, both because it's > money-grubbing restraint of trade point, and because it restricts of > cross-cultural discourse. errrmmm... "because it's money-grubbing restraint of trade, and because it restricts cross-cultural discourse." An edit gone horribly wrong. I plead insufficient coffee. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:22:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32573 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:22:52 -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 PAA32570 for ; Tue, 5 Sep 2000 15:22:49 -0400 Received: from Jana-Server (user-38ld3pj.dialup.mindspring.com [209.86.143.51]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id PAA22957 for ; Tue, 5 Sep 2000 15:23:26 -0400 (EDT) Message-ID: <39B5483B.B3CBE38B@mindspring.com> Date: Tue, 05 Sep 2000 15:23:39 -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] CSS vs. Access Control Content-Type: text/plain; charset=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@mindspring.com writes: > > I very much like the criteria that a TPM act to prevent *unauthorized > > persons*, and I'm trying to rationalize how that would be done on a per > > access basis. The way I think it would have to be done is by a > > transaction of some sort, which CSS is not capable of doing, hence my > > being stuck on the "return path" bit. > > Well, it does have to involve a transaction of some sort, mediated > somehow, possibly quite indirectly, simply because it's meaningless > to speak of a copyright holder authorizing someone if neither they > nor any of their agents are aware that the "authorized" person even > exists. > > But the "return path" notion, and even a refined version where you > insist that a *transaction* take place over the "return path", could > be subject to funny semantic games --- "the DVDCCA is our agent, the > player manufacturers are our agents through it, and buying a player is > a transaction indirectly through them --- hoo-hah, there's your > initial transaction only. Which is fine for first sale, and I don't object to that. But to say that there is a continuing agreement of any kind is where I object. > transaction and your return path!" Sleazy and distorted, perhaps, but > no worse than "it's cryptography, therefore it's an access control" > (consistently their argument thus far). > There is no return path in that example. There is only first sale in a dvd transaction. > Which is why I prefer to apply the "authorized person" test *directly* > --- it's simple, direct, easier for a judge to understand than > anything involving technical implementation details, harder to twist, > and also flunks CSS. > > rst > I agree. The authorized person test is best applied directly. As an aside to that, I was hoping to make a reasonable test for personal authorization. Tracing the flow of money seems like a sound test. mickeym From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 15:23:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32582 for dvd-discuss-outgoing; Tue, 5 Sep 2000 15:23:36 -0400 Received: from hotmail.com (f200.law9.hotmail.com [64.4.9.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA32579 for ; Tue, 5 Sep 2000 15:23:35 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Tue, 5 Sep 2000 12:23:48 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Tue, 05 Sep 2000 19:23:48 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Tue, 05 Sep 2000 15:23:48 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 05 Sep 2000 19:23:48.0691 (UTC) FILETIME=[D103EA30:01C0176E] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: >"Harold Eaton" wrote: > > >No, but I do believe that changing a few bits around on a bank's >computer > > >can > > >empty someone's bank account > > > > Bzzt. Auditing trails allow a determination of > > where the money went, and came from. Thus, while you could > > move it, you could be caught and it could be moved back. > >auditing trails are just further pieces of information. that invalidates >the "a few bits", but not the point. Not if it is done right; with a true trusted system, there is *no* way to modify the audit record without physical access to the audit device. Physical access requires more than a cyber presence. _________________________________________________________________________ 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 Sep 5 16:03:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02027 for dvd-discuss-outgoing; Tue, 5 Sep 2000 16:03:05 -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 QAA02024 for ; Tue, 5 Sep 2000 16:03:03 -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 PAA31687 for ; Tue, 5 Sep 2000 15:03:17 -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 PAA20003 for ; Tue, 5 Sep 2000 15:03:16 -0500 (CDT) Received: by cdmpls02m.cdpoly.cargill.com with Internet Mail Service (5.5.2448.0) id ; Tue, 5 Sep 2000 14:59:05 -0500 Message-ID: From: "Kroll, Dave" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] code as speech Date: Tue, 5 Sep 2000 14:59:04 -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 <> But thought has never had this sort of effect before. In the physical world thought exists in someone's mind, then that person used raw materials to carry out an implementation of that thought. In Our world, any communication of that thought becomes, as we're arguing an instant program. I'll give you that. It's like we've been given omnipotence over this not-so-physical world. Any thought we have becomes a real program. That isn't quite as true in the physical world. So maybe those "thoughts" should be illegal in the not-so-physical world. Is the above a viable argument for software or business model patents? Business model = thought = program -> device = invention David Kroll QA Coordinator 612-882-6452 Dave_Kroll@cdpoly.com -----Original Message----- From: Consilgere@cs.com [SMTP:Consilgere@cs.com] Sent: Monday, September 04, 2000 7:34 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech In a message dated 9/4/00 1:41:35 AM Eastern Daylight Time, dcs@mailhost.lumbercartel.com writes: << You believe in magic? That writing words on paper can directly change the real world? They burn people who do THAT at the stake. >> No, but I do believe that changing a few bits around on a bank's computer can empty someone's bank account. The value of something, namely the bank account, has changed simply because of the information. That person's property, namely the money in the account, is gone. While it was in the computer, it was only a computational model simulating the moving of funds between what ammounted to different piles of money owned by different people. The information changed, and our theoretical person lost their bank account. Information can destroy, or in this case erase, property. <> But we're not talking about thought. We're talking about the implementation of thought in the form of software. I may know how to write a Hello World program, but I can't will it into existence. <> No. All those examples are examples of things that needed to be physically created or implemented. They may philosophically exist in thought as well as in reality, but a mental image of how a steamboat works won't bring you down the Mississippi River. The U.S. let the blueprints for nukes be disseminated because it could illegalize the plutonium. It was a fact of life until the computer came around. Now a description of a tool actually becomes the tool. And can anyone give me any reason, without hiding behind the First Amendment, that we should legalize all tools in Our world but the same standard should not apply in the physical world? <> But thought has never had this sort of effect before. In the physical world thought exists in someone's mind, then that person used raw materials to carry out an implementation of that thought. In Our world, any communication of that thought becomes, as we're arguing an instant program. I'll give you that. It's like we've been given omnipotence over this not-so-physical world. Any thought we have becomes a real program. That isn't quite as true in the physical world. So maybe those "thoughts" should be illegal in the not-so-physical world. Unless we can find some sort of equivalent barrier... From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 16:40:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02483 for dvd-discuss-outgoing; Tue, 5 Sep 2000 16:40:52 -0400 Received: from mail.cc.kuleuven.ac.be (mail.cc.kuleuven.ac.be [134.58.10.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA02479 for ; Tue, 5 Sep 2000 16:40:50 -0400 Received: from Eddy.tvd.kotnet.org (tvd-10-67-120-001.tvd.kotnet.kuleuven.ac.be [10.67.120.1]) by mail.cc.kuleuven.ac.be (8.9.3/8.9.0) with ESMTP id WAA71888 for ; Tue, 5 Sep 2000 22:41:33 +0200 From: "Eric Seynaeve" To: dvd-discuss@eon.law.harvard.edu Date: Tue, 5 Sep 2000 22:41:31 +0100 MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Re: [dvd-discuss] summary of CSS evils? Message-ID: <39B5769B.7057.531C4F@localhost> In-reply-to: <20000905083127.E5961@lemuria.org> X-mailer: Pegasus Mail for Win32 (v3.12c) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There is an article on software DVD players in the dutch C'T this month. In it, they mention that some first presses of DVD's either say they use CSS encryption but they don't, or the reverse (the DVD is encrypted but the key is missing). An example should be, according to this article, the first press of 'Cliffhanger' in the US where the key is missing. There also seem to be some DVD's with authoring errors: they all of the sudden switch encryption. Two examples are given: 'Operation: Broken Arrow' region 2 and the german version of 'Alien'. DVD players seem to be immume to the last problem but PC players have a lot of trouble with it. Without CSS or a more robust system, this shouldn't happen. Interesting is that from the tested software DVD players, very few can show all the tested DVD's without problems. There is clearly a market for a well written software DVD player. On 5 Sep 2000, at 8:31, Tom Vogt wrote: > for a very serious thing I'm currently working on (no details yet, but > you'll be among the first to know), it would help me a lot if you could > help me sum up in short all the evils of MPAA/CSS we're fighting, and if > possible with quotable references (such as the great quote I got for "CSS > exists for the purpose of forcing this whole thing unto the LEGAL > battlefield"). > > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) VSM Celestijnenlaan 200D B-3001 Belgium e-mail: Eric.Seynaeve@fys.kuleuven.ac.be 'Experiments should be repoducible -- they all should fail in the same way' Finagle's Fifth Rule From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 16:47:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02624 for dvd-discuss-outgoing; Tue, 5 Sep 2000 16:47:06 -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 QAA02621 for ; Tue, 5 Sep 2000 16:47:05 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id OAA25243 for ; Tue, 5 Sep 2000 14:47:49 -0600 Date: Tue, 5 Sep 2000 14:47:49 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Infoworld column on DeCSS and the 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 What makes you think that shutting down the internet isn't the MPAA's purpose? It's just about as logical as any of the other justifications that have been given for the MPAA's tactics... On Tue, 5 Sep 2000, Kurt Hockenbury wrote: > "I guess the only solution if the MPAA has its way is to shut down the > Internet" > > http://www.infoworld.com/articles/op/xml/00/09/04/000904opprophet.xml > > -- Pardon me, but you have obviously mistaken me for someone who gives a damn. email galt@inconnu.isu.edu From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 17:26:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02877 for dvd-discuss-outgoing; Tue, 5 Sep 2000 17:26:58 -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 RAA02874 for ; Tue, 5 Sep 2000 17:26:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 23:23:22 +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, 5 Sep 2000 22:58:35 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 22:58:34 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000905225834.A7906@lemuria.org> References: <39B4872C.52C904EB@mindspring.com> <20000905204802.I5961@lemuria.org> <200009051918.PAA17607@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200009051918.PAA17607@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: > > the local authority has NO physical representation. it exists in the > > contract between you, the content holder and the DVD CCA. > > Except that there *is* no contract between the viewer and the > copyright holder (or, for that matter the DVDCCA). Marks freely > admitted to this at the Stanford hearing, and Kaplan said that it was > "perfectly obvious" in the course of the trial. but they *are* arguing a similiar point in CA: there's a contract (the CSS license) that binds all the producers (the content producer, the player producer, the DVD press). and there's a contract between the user and at least two instances: the player producer (a clickwrap license for software players) and the copyright holder (a sales contract). > You are not supposed to build your own device to read your own DVDs > not because that violates some contract that you are a party to, but > (according to the MPAA) because doing so would circumvent their phony > "access control". yes, AND because it allegedly violates their "trade secret" (the clickwrap license tries to forbid reverse-engineering). -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 17:26:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02870 for dvd-discuss-outgoing; Tue, 5 Sep 2000 17:26:55 -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 RAA02866 for ; Tue, 5 Sep 2000 17:26:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 5 Sep 2000 23:23:22 +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, 5 Sep 2000 22:36:58 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 5 Sep 2000 22:36:58 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000905223658.A7872@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: > >auditing trails are just further pieces of information. that invalidates > >the "a few bits", but not the point. > > Not if it is done right; with a true trusted system, there is *no* > way to modify the audit record without physical access to the > audit device. Physical access requires more than a cyber presence. that's a question of the form it takes, but information is still information when you print it out. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 17:39:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA03129 for dvd-discuss-outgoing; Tue, 5 Sep 2000 17:39:09 -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 RAA03126 for ; Tue, 5 Sep 2000 17:39:08 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id RAA28179 for ; Tue, 5 Sep 2000 17:39:53 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA18582; Tue, 5 Sep 2000 17:39:53 -0400 (EDT) Date: Tue, 5 Sep 2000 17:39:53 -0400 (EDT) Message-Id: <200009052139.RAA18582@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000905225834.A7906@lemuria.org> References: <39B4872C.52C904EB@mindspring.com> <20000905204802.I5961@lemuria.org> <200009051918.PAA17607@soggy-fibers.ai.mit.edu> <20000905225834.A7906@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: > > > the local authority has NO physical representation. it exists in the > > > contract between you, the content holder and the DVD CCA. > > > > Except that there *is* no contract between the viewer and the > > copyright holder (or, for that matter the DVDCCA). Marks freely > > admitted to this at the Stanford hearing, and Kaplan said that it was > > "perfectly obvious" in the course of the trial. > > but they *are* arguing a similiar point in CA: > > there's a contract (the CSS license) that binds all the producers (the > content producer, the player producer, the DVD press). and there's a > contract between the user and at least two instances: the player producer > (a clickwrap license for software players) and the copyright holder (a > sales contract). Ooops --- you're right... there are contracts with the makers of software players. I forgot that wrinkle. However, those contracts say nothing about the conditions for viewing DVDs --- in fact, at least two have clauses stating specifically that the license does *not* confer the authority to view any content. I don't believe, however, that hardware players (the consumer-goods kind that plugs into a TV set) have any license language at all, at least here. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 18:03:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03301 for dvd-discuss-outgoing; Tue, 5 Sep 2000 18:03:35 -0400 Received: from mail.onetouch.com ([205.180.182.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA03298 for ; Tue, 5 Sep 2000 18:03:34 -0400 Received: by mail.onetouch.com with Internet Mail Service (5.5.2652.35) id ; Tue, 5 Sep 2000 15:04:12 -0700 Message-ID: From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] CSS vs. Access Control Date: Tue, 5 Sep 2000 15:04:12 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2652.35) Content-Type: 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, I was on vacation for a week and found 1000 mails from this list ... so I am a bit behind. Forgive me if this observation has already been made. I think one of the key points in Mr. Thau's -original- discourse is that an access control technology may -block- access in the normal course of events, whereas the opposition has been casting it only as technologies that -grant- access. If it grants access all the time, it is not really access control (it may just as well be the device's power supply). The real key to qualification as an access control technology is the possibility that access may not be granted -by the mechanism-. They've had to go to court to prevent access -- by that very act they've acknowledged that their mechanism does not perform this defining function of an "access control technology". I don't think the difference between "granting access" and "preventing access" can be stressed enough -- it is vital to making the point stick. -- -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 Sep 5 18:06:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03397 for dvd-discuss-outgoing; Tue, 5 Sep 2000 18:06:20 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA03393 for ; Tue, 5 Sep 2000 18:06:19 -0400 Message-ID: <20000905220634.4737.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 05 Sep 2000 15:06:34 PDT Date: Tue, 5 Sep 2000 15:06:34 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] My reply comment To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I sent this as a reply comment to the copyright office. I banged it out pretty quickly, so I hope it has some value. Looking back, I perhaps strayed a bit from the topic of the DMCA, but it seems like a good chance to chime in on clickwraps licences. For your reading pleasure: http://bioinformatics.ucsf.edu/bwtaylor/dvd/RFC/Reply_109_117.pdf __________________________________________________ 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 Sep 5 18:26:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03566 for dvd-discuss-outgoing; Tue, 5 Sep 2000 18:26:27 -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 SAA03563 for ; Tue, 5 Sep 2000 18:26:26 -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 SAA03128 for ; Tue, 5 Sep 2000 18:27:09 -0400 (EDT) Message-ID: <39B5733E.819EB247@mediaone.net> Date: Tue, 05 Sep 2000 18:27:10 -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] Commercial vs. non-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: > > > My view is very simple. Big is bad. > > Businesses are the cellular structure of > > society. Big business is cancer. > > I used to think that myself, but this isn't really true. Some businesses, > must be big in order to accomplish things in any reasonably efficient > manner. In markets for goods that are commoditized, the only way to make > money in that business is to be big. Automobile manufacturing, global > shipping, and global network infrastructure are a few examples of > operations that just don't happen in a small company. Ultimately being > bigger increases overall efficiency and reduces costs to the consumer. > > Now, having said that, certainly some businesses attain a large size and > tremendous clout through illegal or at the least unethical means. These > are the sorts of things that we should be cautious about and try to weed > out of the system. To further your metaphor, is the business a cancer or > is it a kidney, brain or liver? Your extension of the analogy doesn't hold up. A kidney is a large collection of coordinated, differentiated cells acting in concert; which is a perfectly functional business model. One which doesn't suffer the eventual fate of the unrestrained growth in a malignancy. Coordinated activity between small businesses is a sustanable system. Unregulated growth is not. In any event, the spirit of the specific construction of the copyright clause in our constitution was an attempt by the founding fathers to prevent the rise of large powerfull publishing monopolies, like the ones we are now confronted with. They thought big was bad too. > It may very well be true that the media create more harm than benefit, but > attack them for what they do wrong, not for the fact that they are big. > If they are unfairly getting a one up on everybody else and raising > barriers to entry, tear down those barriers and make them compete. If > they aren't meant to be then evolution will give them what for and if > they can't adapt to survive on a level playing ground then they will die. > > ---Steve -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 18:35:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03698 for dvd-discuss-outgoing; Tue, 5 Sep 2000 18:35:50 -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 SAA03695 for ; Tue, 5 Sep 2000 18:35:49 -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 SAA04219 for ; Tue, 5 Sep 2000 18:36:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA18792; Tue, 5 Sep 2000 18:36:33 -0400 (EDT) Date: Tue, 5 Sep 2000 18:36:33 -0400 (EDT) Message-Id: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] CSS vs. Access Control In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > I think one of the key points in Mr. Thau's -original- discourse > is that an access control technology may -block- access in the > normal course of events, whereas the opposition has been casting > it only as technologies that -grant- access. If it grants access > all the time, it is not really access control (it may just as well > be the device's power supply). The real key to qualification as > an access control technology is the possibility that access may > not be granted -by the mechanism-. They've had to go to court > to prevent access -- by that very act they've acknowledged that > their mechanism does not perform this defining function of an > "access control technology". Well, access controls grant access too, sometimes. But the difference between an access control and something that isn't is that the access control can prevent access "in the ordinary course of its operation" --- i.e., when functioning normally. A password-protected web site does that, for instance --- power supplies, laser beams, power cords, and CSS don't. (The example there was actually an echoed version of your own "laser beam" point; I was trying to make it more mundane. Power cords and cables are perhaps even better because they're more mundane than that...). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 18:51:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03907 for dvd-discuss-outgoing; Tue, 5 Sep 2000 18:51:54 -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 SAA03904 for ; Tue, 5 Sep 2000 18:51:53 -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 SAA24807 for ; Tue, 5 Sep 2000 18:52:32 -0400 (EDT) Message-ID: <39B57929.14C68A8E@mediaone.net> Date: Tue, 05 Sep 2000 18:52:25 -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] Commercial vs. non-commercial speech References: <39B46F10.76C316DA@mediaone.net> <39B49537.93906E8E@swbell.net> <20000905205305.J5961@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: > > Jolley wrote: > > Good, bad, or indifferent, most businesses are in business to make > > money. That is their nature. The MPAA and the companies it > > represents are no different. They want to squeeze every last dollar > > of profit out of their products. > > there's a difference between being in the game for the money and squeezing > every last dollar out of your customers. it's not even got much to do with > "business ethics" - it's a question of sustaining or exploiting your > market. It's the difference between sustainable existence and malignant growth. Any company that's "in it for the money" doesn't last. The long-lived companies provide a service in expectation of a fair return. > > they make a motion picture that I might want to purchase. I don't > > think they would (could) make motion pictures without making a profit. > > No profit, no more motion pictures. > > agree. not many people ask for death and destruction for the studios. on > the other hand, the MPAA is *not* in the business of creating and selling > creative work. they're in the business of lobbyism. I wouldn't mind if they > declare bancruptcy tomorrow. Ever notice how much better independent "art" films are than most of the big budget junk the "studios" turn out? I'm all for their death and destruction -- or at the very least, preventing them from smothering the good stuff. Let Big Media go the way of Waterworld. > > in any of my HTML documents. > > 4. I don't like being called a pirate when I'm totally against > > piracy. > > 5. I don't want to worry about, in addition to software patents, > > writing software that offends someones business model and not > > being able to use that software ever (unlike a patent that > > wears out over time.) > > 6. There are more but it's too late. > > 6. I see the DVD technology as an interesting future perspective for mass > storage, and I don't want to have it controlled in any significant way by a > single, artificial "authority". Yup. > -- > "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 Sep 5 19:22:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04383 for dvd-discuss-outgoing; Tue, 5 Sep 2000 19:22:49 -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 TAA04380 for ; Tue, 5 Sep 2000 19:22:48 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id SAA10942 for dvd-discuss@eon.law.harvard.edu; Tue, 5 Sep 2000 18:23:32 -0500 Date: Tue, 5 Sep 2000 18:23:32 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000905182332.A10900@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200009052236.SAA18792@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Sep 05, 2000 at 06:36:33PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 05, 2000 at 06:36:33PM -0400, Robert S. Thau wrote: > Well, access controls grant access too, sometimes. But the difference > between an access control and something that isn't is that the access > control can prevent access "in the ordinary course of its operation" > --- i.e., when functioning normally. A password-protected web site > does that, for instance --- power supplies, laser beams, power cords, > and CSS don't. Typically illogical MPAA response: of course CSS can prevent access: if you copy a DVD to a DVD-R the licensed player won't play the disc. The obvious hole in that argument is, of course, that they're talking about granting access to X and denying access to Y. So, perhaps that should be amended to say that an access control is something that can both grant and deny access to some particular copy of a copyrighted work. DVD access control must, in one circumstance, deny access to some sample disc, and in another circumstance, grant access to that _same_ disc. In any case, I think it's an incredibly effective argument. I wouldn't have thought of it in a million years, but the minute I read it I could see the problem much more clearly. Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 19:31:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04490 for dvd-discuss-outgoing; Tue, 5 Sep 2000 19:31:11 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA04487 for ; Tue, 5 Sep 2000 19:31:10 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id TAA01853 for ; Tue, 5 Sep 2000 19:31:55 -0400 Date: Tue, 5 Sep 2000 19:31:54 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000905182332.A10900@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 09/05/00 at 18:23, 'twas brillig and Eric Seppanen scrobe: > On Tue, Sep 05, 2000 at 06:36:33PM -0400, Robert S. Thau wrote: > > > Well, access controls grant access too, sometimes. But the difference > > between an access control and something that isn't is that the access > > control can prevent access "in the ordinary course of its operation" > > --- i.e., when functioning normally. A password-protected web site > > does that, for instance --- power supplies, laser beams, power cords, > > and CSS don't. > > Typically illogical MPAA response: of course CSS can prevent access: if > you copy a DVD to a DVD-R the licensed player won't play the disc. > > The obvious hole in that argument is, of course, that they're talking > about granting access to X and denying access to Y. > > So, perhaps that should be amended to say that an access control is > something that can both grant and deny access to some particular copy of > a copyrighted work. DVD access control must, in one circumstance, deny > access to some sample disc, and in another circumstance, grant access to > that _same_ disc. > > In any case, I think it's an incredibly effective argument. I wouldn't > have thought of it in a million years, but the minute I read it I could > see the problem much more clearly. Who cares about the disc? We're not trying to control access to that. CSS controls access to our content: if you take it off the disc, you can't access it. 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 Sep 5 19:32:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04511 for dvd-discuss-outgoing; Tue, 5 Sep 2000 19:32:11 -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 TAA04505 for ; Tue, 5 Sep 2000 19:32:10 -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 TAA17665 for ; Tue, 5 Sep 2000 19:32:53 -0400 (EDT) Message-ID: <39B58299.8780F283@mediaone.net> Date: Tue, 05 Sep 2000 19:32:41 -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] Infoworld column on DeCSS and the 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 I kinda hope it is their purpose. ;) Welcome to Neuromancer folks. John Galt wrote: > > What makes you think that shutting down the internet isn't the MPAA's > purpose? It's just about as logical as any of the other justifications > that have been given for the MPAA's tactics... > > On Tue, 5 Sep 2000, Kurt Hockenbury wrote: > > > "I guess the only solution if the MPAA has its way is to shut down the > > Internet" > > > > http://www.infoworld.com/articles/op/xml/00/09/04/000904opprophet.xml > > > > > > -- > Pardon me, but you have obviously mistaken me for someone who gives a > damn. > email galt@inconnu.isu.edu -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 19:35:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04623 for dvd-discuss-outgoing; Tue, 5 Sep 2000 19:35:21 -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 TAA04620 for ; Tue, 5 Sep 2000 19:35:20 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 5 Sep 2000 19:35:25 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] code as speech Date: Tue, 5 Sep 2000 19:35:24 -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 > Wendy's comments: >On the one hand, even Kaplan seems willing to concede that code is >"speech." ... >On the other hand, DeCSS code at least makes it easier for some people to >decrypt CSS... >Kaplan describes his finding of functionality as "a proxy for the >consequences of use" (60), then says essentially that anyone who posts code >on the Internet must presume that someone will download and use it... It is from here that Kaplan develops the now famous disease metaphor. As a practical matter, Kaplan is incorrect to view the development and posting of DeCSS in a narrow context. It has to be taken as part of a software engineering effort to create DVD playing and editing tools. In footnote 214, Kaplan states that the ultimate use of DeCSS is "immaterial." One argument I'd like to see advanced is to discuss function vis a vis effect. In a traditional device, the function and the effect are highly linked. But in software the "speech nature" allows for flexibility and incorporation into other devices. The statute discusses "primarily designed for" which to me says that the court must examine both the function and the effect. >In a sense, functionality is not just a >"secondary effect" of code's expressive nature but an integral part of its >expression. This is a fascinating statement, which in some ways goes to how the law could view source and object code differently. >So, we need to argue that using "function" to justify the prohibition of >speech will put a prior restraint on the most expressive forms of >communication about technical matters. Hmmm...just a thought here...if I think back on what the sedition laws attempted to ban, it sure looks to me like speech becoming function, becoming the action of changing the government's business model. I keep reading Kaplan's decision -- well, DeCSS is sedition because it says "yes, you can build a DVD player from the things you find at home." >I'd suggest we stop trying to find the >essential nature of code, though. Awww, you never let us techies have any fun :). From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 19:57:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04771 for dvd-discuss-outgoing; Tue, 5 Sep 2000 19:57:03 -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 TAA04768 for ; Tue, 5 Sep 2000 19:57:02 -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 TAA03234 for ; Tue, 5 Sep 2000 19:57:43 -0400 (EDT) Message-ID: <39B5886C.699D2651@mediaone.net> Date: Tue, 05 Sep 2000 19:57:32 -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] 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 Leland Ray wrote: > > Wendy's comments: ... > >I'd suggest we stop trying to find the > >essential nature of code, though. > > Awww, you never let us techies have any fun :). The essential nature of code is to convey information from the programmer to something or someone else. That is, the essential nature of code is to carry a message. That is, the essential nature of code is to speak. Code doesn't _do_ anything other than carry a message. The constitution says the government cannot prevent us from communicating, but with software the basic fact that _everything_ is communication is thrust to the fore. The law has a problem, and no way to resolve it. The old rules for putting people down don't work anymore, and the only solution under the law is going to have to be ignoring the facial meaning of the law. -- Sphere. Is DeCSS.c obscene? Why can't I read it? Can knowledge be forbidden? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 20:23:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04982 for dvd-discuss-outgoing; Tue, 5 Sep 2000 20:23:47 -0400 Received: from mail.onetouch.com ([205.180.182.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04979 for ; Tue, 5 Sep 2000 20:23:46 -0400 Received: by mail.onetouch.com with Internet Mail Service (5.5.2652.35) id ; Tue, 5 Sep 2000 17:24:24 -0700 Message-ID: From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] CSS vs. Access Control Date: Tue, 5 Sep 2000 17:24:21 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2652.35) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > -----Original Message----- > From: Ole Craig [mailto:olc@cs.umass.edu] > Sent: Tuesday, September 05, 2000 4:32 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] CSS vs. Access Control > > > On 09/05/00 at 18:23, 'twas brillig and Eric Seppanen scrobe: > > On Tue, Sep 05, 2000 at 06:36:33PM -0400, Robert S. Thau wrote: > > > > > Well, access controls grant access too, sometimes. But > the difference > > > between an access control and something that isn't is > that the access > > > control can prevent access "in the ordinary course of its > operation" > > > --- i.e., when functioning normally. A > password-protected web site > > > does that, for instance --- power supplies, laser beams, > power cords, > > > and CSS don't. > > > > Typically illogical MPAA response: of course CSS can > prevent access: if > > you copy a DVD to a DVD-R the licensed player won't play the disc. > > > > The obvious hole in that argument is, of course, that > they're talking > > about granting access to X and denying access to Y. > > > > So, perhaps that should be amended to say that an access control is > > something that can both grant and deny access to some > particular copy of > > a copyrighted work. DVD access control must, in one > circumstance, deny > > access to some sample disc, and in another circumstance, > grant access to > > that _same_ disc. > > > > In any case, I think it's an incredibly effective argument. > I wouldn't > > have thought of it in a million years, but the minute I > read it I could > > see the problem much more clearly. > > > Who cares about the disc? We're not trying to control access to > that. CSS controls access to our content: if you take it off the disc, > you can't access it. > > > We're back to "the disk is the dongle" with that, eh? So if the content is on the original disk, we -can- access it? Ok ... I choose to access it via a DeCSS player. As long as I am using the original disk that I bought at Blockbuster, I am authorized, right? -- -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 Sep 5 20:32:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05141 for dvd-discuss-outgoing; Tue, 5 Sep 2000 20:32:37 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05138 for ; Tue, 5 Sep 2000 20:32:36 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id UAA13564 for ; Tue, 5 Sep 2000 20:33:21 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA20090; Tue, 5 Sep 2000 20:33:21 -0400 (EDT) Date: Tue, 5 Sep 2000 20:33:21 -0400 (EDT) Message-Id: <200009060033.UAA20090@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000905182332.A10900@thud.reric.net> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen writes: > Typically illogical MPAA response: of course CSS can prevent access: if > you copy a DVD to a DVD-R the licensed player won't play the disc. And it won't work great if you leave off the .IFO files either. That doesn't mean .IFO is an access control mechanism. In any case, what you're describing is copy control, not access control --- you're not describing a way in which CSS acts to keep an unauthorized *person* from viewing the work (they could always view the original). But that's perhaps too quick a response --- the whole issue does deserve to be dealt with at greater length. In particular, Bryan Taylor's point about their attempt to merge copy control and access control provisions of the law is probably apropos... > In any case, I think it's an incredibly effective argument. I wouldn't > have thought of it in a million years, but the minute I read it I could > see the problem much more clearly. Regrettably, it derives its effectiveness mostly from a report which I was at best kind of dimly aware of until last week, more's the pity. Oh, well. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 20:36:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05259 for dvd-discuss-outgoing; Tue, 5 Sep 2000 20:36:44 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05256 for ; Tue, 5 Sep 2000 20:36:44 -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 UAA13811 for ; Tue, 5 Sep 2000 20:37:28 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA20155; Tue, 5 Sep 2000 20:37:28 -0400 (EDT) Date: Tue, 5 Sep 2000 20:37:28 -0400 (EDT) Message-Id: <200009060037.UAA20155@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: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray writes: > One argument I'd like to see advanced is to discuss function vis a vis > effect. In a traditional device, the function and the effect are highly > linked. But in software the "speech nature" allows for flexibility > and incorporation into other devices. The statute discusses "primarily > designed for" which to me says that the court must examine both the > function and the effect. FWIW, DeCSS was demonstrably not primarily designed for piracy; on Johansen's uncontested testimony, he examined and rejected at least one "ripper" tool as unsuitable for his purpose, but it's just as good as DeCSS for piracy (better, if anything). The other criteria are a more than "limited" commercial purpose (making DVD players seems pretty significant), and marketed for the purpose of piracy (which clearly doesn't apply to Pavlovich et al.) rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 22:19:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA06721 for dvd-discuss-outgoing; Tue, 5 Sep 2000 22:19:02 -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 WAA06718 for ; Tue, 5 Sep 2000 22:19:00 -0400 Received: from swbell.net ([64.216.210.188]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0G005FD0J8Y3@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 5 Sep 2000 21:06:45 -0500 (CDT) Date: Tue, 05 Sep 2000 20:58:35 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B5A4CB.61033B07@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: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ole Craig wrote: > > > > So, perhaps that should be amended to say that an access control is > > something that can both grant and deny access to some particular copy of > > a copyrighted work. DVD access control must, in one circumstance, deny > > access to some sample disc, and in another circumstance, grant access to > > that _same_ disc. > > > > > Who cares about the disc? We're not trying to control access to > that. CSS controls access to our content: if you take it off the disc, > you can't access it. > > Then why is the MPAA actively involved in stopping mass produced pirated DVDs? Shouldn't access control deny access to *a person* trying to use a pirated disc? CSS doesn't control access. It is only a media verification tool. It only works when the correct media is in the DVD drive. It correctly denies access to burnt toast and popcorn. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 5 22:23:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA06870 for dvd-discuss-outgoing; Tue, 5 Sep 2000 22:23:37 -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 WAA06867 for ; Tue, 5 Sep 2000 22:23:36 -0400 Received: from swbell.net ([64.216.210.188]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0G00JN91AK70@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 5 Sep 2000 21:23:08 -0500 (CDT) Date: Tue, 05 Sep 2000 21:14:12 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B5A874.F8B032ED@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > Eric Seppanen writes: > > Typically illogical MPAA response: of course CSS can prevent access: if > > you copy a DVD to a DVD-R the licensed player won't play the disc. > > And it won't work great if you leave off the .IFO files either. That > doesn't mean .IFO is an access control mechanism. > > In any case, what you're describing is copy control, not access > control --- you're not describing a way in which CSS acts to keep an > unauthorized *person* from viewing the work (they could always view > the original). > Actually, I think it is more disc format control which leads to copy control. I think the problem with trying to copy a DVD to a DVD-R is that there is a critical sector that is "write protected" on the DVD-R media. So the copy control is not with the original DVD or CSS it is the DVD-R media. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 00:28:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08541 for dvd-discuss-outgoing; Wed, 6 Sep 2000 00:28:45 -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 AAA08538 for ; Wed, 6 Sep 2000 00:28:44 -0400 Message-ID: <20000906042859.4146.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Tue, 05 Sep 2000 21:28:59 PDT Date: Tue, 5 Sep 2000 21:28:59 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Unsealed Published Trade Secrets Aren't To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu While browsing through some cases, I came across one that dealt with loss of trade secrets through inadvertent filing as an unsealed document. The bottom line is "information which had been both disclosed in public court files and made 'generally known' by Internet publication had lost its trade secret status. " This should be a good grounds for summary judgement against the DVD-CCA, since their trade secret was filed unsealed and published by Cryptome, reported as such by Slashdot, and mirrored by who knows how many people. ________________________ Hoechst Diafoil Co. v. Nan Ya Plastics Corp., No. 98-1030, (4th Cir. 1999) http://www.law.emory.edu/4circuit/apr99/981030.p.html The district court for the Eastern District of Virginia reached a decision consistent with this rule in Religious Technology Center v. Lerma, 908 F. Supp. 1362 (E.D. Va. 1995). In Lerma, a company affiliated with the Church of Scientology sued the Washington Post for misappropriating and publishing portions of that church's "Advanced Technology Works," which the church claims contained its trade secrets. In response, the Post argued that the Advanced Technology Works were not trade secrets when it obtained copies of them, because (1) they had been in a public court file for twenty-eight months and (2) they had been published on the Internet. Id. at 1368. In holding that the Advanced Technology works were not trade secrets when the Post acquired them, the court specifically relied on both of these factors. First, it noted that the documents' extended presence in the court's public files -- from which the Post had obtained its own copy -- made them no longer secret. Id. Importantly, though, the court reasoned that the documents' posting on the Internet was "[o]f even more significance" than their extended presence in public records: "`posting works to the Internet makes them "generally known"' at least to the relevant people interested in the news group." Id. (quoting Netcom, 923 F. Supp. at 1256). As a result, the court correctly found that information which had been both disclosed in public court files and made "generally known" by Internet publication had lost its trade secret status. __________________________________________________ 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 Sep 6 01:10:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA09123 for dvd-discuss-outgoing; Wed, 6 Sep 2000 01:10:39 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA09120 for ; Wed, 6 Sep 2000 01:10:38 -0400 Message-ID: <20000906051053.8115.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Tue, 05 Sep 2000 22:10:53 PDT Date: Tue, 5 Sep 2000 22:10:53 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Trade Secrets cannot bar 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 I stumbled across this. It doesn't look like it's in our archive, although it is cited to by a quote from Bonito Boats: http://eon.law.harvard.edu/archive/dvd-discuss/msg02149.html Anyway, the Supreme Court says trade secret law cannot forbid independent creation or reverse engineering. A patent's requirement of disclosure is quated to the "quid pro quo of the right to exclude". The case found no preemption of trade secret law by Federal patent law because of the narrowness of trade secret law. ________________________ Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, (Sup. Ct. 1974) http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=416&page=470 The more difficult objective of the patent law to reconcile with trade secret law is that of disclosure, the quid pro quo of the right to exclude. [p484] Trade secret law provides far weaker protection in many respects than the patent law. 18 While trade secret law does not forbid the discovery of the trade secret by fair and honest means, e. g., independent creation or reverse engineering, patent law operates "against the world," forbidding any use of the invention for whatever purpose for a significant length of time. [p489-90] Footnote 18: Water Services, Inc. v. Tesco Chemicals, Inc., 410 F.2d, at 172. __________________________________________________ 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 Sep 6 01:14:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA09269 for dvd-discuss-outgoing; Wed, 6 Sep 2000 01:14:32 -0400 Received: from localhost.localdomain (root@ts0202.bates.edu [134.181.72.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA09266 for ; Wed, 6 Sep 2000 01:14:29 -0400 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id BAA00825 for ; Wed, 6 Sep 2000 01:26:43 -0500 X-Authentication-Warning: localhost.localdomain: sam owned process doing -bs Date: Wed, 6 Sep 2000 01:26:40 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Unsealed Published Trade Secrets Aren't In-Reply-To: <20000906042859.4146.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Tue, 5 Sep 2000, Bryan Taylor wrote: > While browsing through some cases, I came across one that dealt with > loss of trade secrets through inadvertent filing as an unsealed > document. The bottom line is "information which had been > both disclosed in public court files and made 'generally known' by > Internet publication had lost its trade secret status. " > > This should be a good grounds for summary judgement against the > DVD-CCA, since their trade secret was filed unsealed and published by > Cryptome, reported as such by Slashdot, and mirrored by who knows how > many people. I think you misread the conclusion of this case. Their judgement is that accidental unsealed filing does not neccessarily destroy trade secret status. However, it may be a contributing factor if there is significant other evidence of lack of trade secret status. This allows us to make the following two arguments (as far as publication goes) 1) The extensive publication of DeCSS and derivatives (esp Frank Stevenson's analysis) has destroyed trade secret status for CSS. The argument here is basically that to claim that CSS was still a trade secret would be outright denial of reality, given that the information is widely available around the world. However, this runs up against the point that IP should not be permanently destroyed merely by its illegal posting on the internet (which is potentially convincing). 2) The (formerly) unsealed declaration has recieved wide-enough publication for it to have destroyed trade secret status. The was the argument that won in Religious Tech. Center, as cited in Hoechst. I find this more persuasive, but it would help to be able to read the RTC vs Post case. Then there are all the 'legitamate RE' arguments, which are even more persuasive anyway. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5teOjt+kM0Mq9M/wRAk3nAKCB91SNwAImV7jkaJrl6bNcO+YfkQCeJhO2 RfIr+OqV6cMONgFxLoQp67Y= =CN6R -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 02:47:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09725 for dvd-discuss-outgoing; Wed, 6 Sep 2000 02:47:03 -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 CAA09721 for ; Wed, 6 Sep 2000 02:47:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 6 Sep 2000 08:43:22 +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, 6 Sep 2000 08:28:28 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 6 Sep 2000 08:28:28 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000906082828.C9483@lemuria.org> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B5A874.F8B032ED@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: > Actually, I think it is more disc format control which leads to copy > control. I think the problem with trying to copy a DVD to a DVD-R is > that there is a critical sector that is "write protected" on the DVD-R > media. So the copy control is not with the original DVD or CSS it is > the DVD-R media. technical nitpicking: the critical sector is the one containing the keys. it is pre-burned to 0es on DVD-Rs. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 02:47:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09733 for dvd-discuss-outgoing; Wed, 6 Sep 2000 02:47:05 -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 CAA09726 for ; Wed, 6 Sep 2000 02:47:03 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 6 Sep 2000 08:43:22 +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, 6 Sep 2000 08:32:34 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 6 Sep 2000 08:32:34 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Unsealed Published Trade Secrets Aren't Message-ID: <20000906083234.D9483@lemuria.org> References: <20000906042859.4146.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000906042859.4146.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: > This should be a good grounds for summary judgement against the > DVD-CCA, since their trade secret was filed unsealed and published by > Cryptome, reported as such by Slashdot, and mirrored by who knows how > many people. they corrected that mistake a few days later and got the document sealed. I have no idea whether that's sufficient, but judging from the general insanity of the US court system, I wouldn't be surprised if it allowed for retroactive status changes. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 02:47:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09740 for dvd-discuss-outgoing; Wed, 6 Sep 2000 02:47:07 -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 CAA09737 for ; Wed, 6 Sep 2000 02:47:05 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 6 Sep 2000 08:43:22 +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, 6 Sep 2000 08:34:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 6 Sep 2000 08:34:14 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering Message-ID: <20000906083414.E9483@lemuria.org> References: <20000906051053.8115.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000906051053.8115.qmail@web515.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: > Anyway, the Supreme Court says trade secret law cannot forbid > independent creation or reverse engineering. A patent's requirement of > disclosure is quated to the "quid pro quo of the right to exclude". The > case found no preemption of trade secret law by Federal patent law > because of the narrowness of trade secret law. the DVD CCA's point is that the RE itself may have been legal, but was in violation of the license of the player used. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 02:47:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09717 for dvd-discuss-outgoing; Wed, 6 Sep 2000 02:47:01 -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 CAA09713 for ; Wed, 6 Sep 2000 02:46:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 6 Sep 2000 08:43:22 +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, 6 Sep 2000 08:27:01 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 6 Sep 2000 08:27:01 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000906082701.B9483@lemuria.org> References: <20000905182332.A10900@thud.reric.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 Ole Craig wrote: > > Who cares about the disc? We're not trying to control access to > that. CSS controls access to our content: if you take it off the disc, > you can't access it. > but of course I can. all I need is a camcorder. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 03:40:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA10028 for dvd-discuss-outgoing; Wed, 6 Sep 2000 03:40:10 -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 DAA10025 for ; Wed, 6 Sep 2000 03:40:08 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13WZpE-0002dP-00 for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 09:40:52 +0200 Date: Wed, 6 Sep 2000 09:40:52 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering In-Reply-To: <20000906083414.E9483@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 It is even weaker than that, under the DVD CCA only have to show that it was found by 'improper means' under Californian law. The preliminary injunction case in January was largely lost by the scent of some slashdot postings, that should never have been allowed admitted as evidence. frank On Wed, 6 Sep 2000, Tom Vogt wrote: > Bryan Taylor wrote: > > Anyway, the Supreme Court says trade secret law cannot forbid > > independent creation or reverse engineering. A patent's requirement of > > disclosure is quated to the "quid pro quo of the right to exclude". The > > case found no preemption of trade secret law by Federal patent law > > because of the narrowness of trade secret law. > > the DVD CCA's point is that the RE itself may have been legal, but was in > violation of the license of the player used. 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 Sep 6 09:13:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12237 for dvd-discuss-outgoing; Wed, 6 Sep 2000 09:13:40 -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 JAA12234 for ; Wed, 6 Sep 2000 09:13:38 -0400 Received: from swbell.net ([64.216.210.188]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0G008G6VBDN3@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 08:11:38 -0500 (CDT) Date: Wed, 06 Sep 2000 08:02:40 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B64070.A7D92A75@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <20000906082828.C9483@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: > > Actually, I think it is more disc format control which leads to copy > > control. I think the problem with trying to copy a DVD to a DVD-R is > > that there is a critical sector that is "write protected" on the DVD-R > > media. So the copy control is not with the original DVD or CSS it is > > the DVD-R media. > > technical nitpicking: the critical sector is the one containing the keys. > it is pre-burned to 0es on DVD-Rs. > Because you can't copy that sector to a DVD-R means it is copy control not access control. I have to agree with earlier postings by Robert Thau that CSS is not access control. At best CSS is copy control only when you consider that a DVD-R can't have anything written to the critical sector where the keys are located. CSS's effective copy control is tied to how DVD-Rs are manufactured and that CSS only works with DVD drives. It reminds me of some of the old copy protection mechanisms when software was distributed on floppy disks. Part of the software would be hidden in sectors that were marked bad. When you ran the special install program on the disk it would read the "bad" sectors and would mark the floppy as being installed so no further installations can be made. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 10:24:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA13033 for dvd-discuss-outgoing; Wed, 6 Sep 2000 10:24:27 -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 KAA13030 for ; Wed, 6 Sep 2000 10:24:26 -0400 Received: from 209-122-247-131.s131.tnt8.lnhva.md.dialup.rcn.com ([209.122.247.131]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13Wg8W-0006EO-00 for dvd-discuss@eon.law.harvard.edu; Wed, 06 Sep 2000 10:25:12 -0400 Date: Wed, 06 Sep 2000 10:24:27 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Unsealed Published Trade Secrets Aren't 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 Tue, 5 Sep 2000, Bryan Taylor wrote: > Date: Tue, 5 Sep 2000 21:28:59 -0700 (PDT) > To: dvd-discuss@eon.law.harvard.edu > From: Bryan Taylor > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Unsealed Published Trade Secrets Aren't > > While browsing through some cases, I came across one that dealt with > loss of trade secrets through inadvertent filing as an unsealed > document. The bottom line is "information which had been > both disclosed in public court files and made 'generally known' by > Internet publication had lost its trade secret status. " > .. > ________________________ > > Hoechst Diafoil Co. v. Nan Ya Plastics Corp., > No. 98-1030, (4th Cir. 1999) > http://www.law.emory.edu/4circuit/apr99/981030.p.html > > The district court for the Eastern District of Virginia reached a > decision consistent with this rule in Religious Technology Center v. > Lerma, 908 F. Supp. 1362 (E.D. Va. 1995). In Lerma, a company > affiliated with the Church of Scientology sued the Washington Post for > misappropriating and publishing portions of that church's "Advanced > Technology Works," which the church claims contained its trade > secrets. In response, the Post argued that the Advanced Technology > Works were not trade secrets when it obtained copies of them, because > (1) they had been in a public court file for twenty-eight months and > (2) they had been published on the Internet. Id. at 1368. In holding > that the Advanced Technology works were not trade secrets when the > Post acquired them, the court specifically relied on both of these > factors. First, it noted that the documents' extended presence in the > court's public files -- from which the Post had obtained its own copy > -- made them no longer secret. Id. Importantly, though, the court > reasoned that the documents' posting on the Internet was "[o]f even > more significance" than their extended presence in public records: > "`posting works to the Internet makes them "generally known"' at least > to the relevant people interested in the news group." Id. (quoting > Netcom, 923 F. Supp. at 1256). As a result, the court correctly found > that information which had been both disclosed in public court files > and made "generally known" by Internet publication had lost its trade > secret status. But in the above case, the files were left unsealed for 28 months. The Hoy error was fixed after, IIRC, one week. In addition it is not clear that the defendents recieved the bulk of the tarde secret through Mr Hoy's declaration... From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 11:31:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13732 for dvd-discuss-outgoing; Wed, 6 Sep 2000 11:31:23 -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 LAA13729 for ; Wed, 6 Sep 2000 11:31:22 -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 LAA14962 for ; Wed, 6 Sep 2000 11:32:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA23998; Wed, 6 Sep 2000 11:32:08 -0400 (EDT) Date: Wed, 6 Sep 2000 11:32:08 -0400 (EDT) Message-Id: <200009061532.LAA23998@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B5A874.F8B032ED@swbell.net> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tjolley@swbell.net writes: > Actually, I think it is more disc format control which leads to copy > control. I think the problem with trying to copy a DVD to a DVD-R is > that there is a critical sector that is "write protected" on the DVD-R > media. So the copy control is not with the original DVD or CSS it is > the DVD-R media. On this point, two more things to consider: 1) CSS, by itself, is not a system which produces complete "ripped" DVDs. It is, at best, a component of such a system --- and also a component of other, perfectly legitimate systems (e.g., Matt's DVD player). So, "only limited commercial purpose other than to circumvent" strikes me as very, very dubious, even if we grant that CSS is acting as a copy-control technology in this manner (which is still not entirely clear). 2) I don't recall seeing any mention of this mechanism at all in the trial transcripts, though I don't know what all is in the exhibits. Is it on the trial record? If not, then it's irrelevant for appeals; the only thing that matters is whether it's an *access* control. (Contrast to region coding, which *is* at least briefly mentioned on the trial record --- IIRC, Kaplan shut down all reference to it when the MPAA's witnesses were being questioned, but he *did* let Johansen talk about it). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 11:55:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14167 for dvd-discuss-outgoing; Wed, 6 Sep 2000 11:55:57 -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 LAA14164 for ; Wed, 6 Sep 2000 11:55:55 -0400 Message-ID: <20000906155611.29649.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 06 Sep 2000 08:56:11 PDT Date: Wed, 6 Sep 2000 08:56:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Unsealed Published Trade Secrets Aren't To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- sam th wrote: > I think you misread the conclusion of this case. Their judgement is > that accidental unsealed filing does not neccessarily destroy trade > secret status. I'm citing the case for it's conclusion of law, not it's conclusions of fact, which really are irrelevant. The facts there did not support rejection of trade secret status because the standard is that a trade secret is lost when it is(1) obtained from an unsealed filing and (2) published openly, including over the internet. In the facts before the court there, factor (2) was missing, but the standard was accepted and endorsed from a predecessor case (Lerma) where both factors were present. I do agree with your two points below. > 1) The extensive publication of DeCSS and derivatives (esp Frank > Stevenson's analysis) has destroyed trade secret status for CSS. > The argument here is basically that to claim that CSS was still a > trade secret would be outright denial of reality, given that the > information is widely available around the world. However, this > runs up against the point that IP should not be permanently > destroyed merely by its illegal posting on the internet (which is > potentially convincing). Frank Stevenson certainly never had a duty to maintain secrecy. I'm not sure that I agree that a trade secret can persist through all forms of internet publication, since the standard for misapporpriation by aquisition (as opposed to disclosure) requires that the receiver have reason to know that the trade secret was aquired improperly. Note also that the disclosure standard applies "at the time of disclosure". If someone sets up a mirror before they have reason to believe there was impropriety, then anyone who obtains the information from that mirror should do so with impunity, just as if they had obtained it from unsealed court records. This is very much a First Amendment argument. State law cannot punish good faith speech. Example: party A misappropriates a trade secret and tells B, but deludes B into thinking it was lawfully aquired. Then B tells C (among others) the "secret" but not that it was obtained from A. Thereafter B finds out the truth about A. At this point, B should stop disclosing it, perhaps, but I see no reason to believe that the transfer to C retroactively becomes misapporpriation by disclosure, since it was done in good faith. I also see no reason for C to stop discussing it, since the act that brought the information to her was legal disclosure and legal aquisition. Moreover, due to the time lag, it may be impossible to reconstruct that the information passed from B to C. And what about D,E,F,G and H who aren't sure who they got it from or even if their communication path leads back to C? > 2) The (formerly) unsealed declaration has recieved wide-enough > publication for it to have destroyed trade secret status. The was the > argument that won in Religious Tech. Center, as cited in Hoechst. I > find this more persuasive, but it would help to be able to read the > RTC vs Post case. I found the final opinion in RTC, but it refers to a prior ruling that dismissed the trade secret claim early on. > Then there are all the 'legitamate RE' arguments, which are even more > persuasive anyway. One should air all arguments that you expect to defeat the claim, right? __________________________________________________ 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 Sep 6 12:20:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15608 for dvd-discuss-outgoing; Wed, 6 Sep 2000 12:20:41 -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 MAA15605 for ; Wed, 6 Sep 2000 12:20:40 -0400 Message-ID: <20000906162055.12897.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 06 Sep 2000 09:20:55 PDT Date: Wed, 6 Sep 2000 09:20:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Unsealed Published Trade Secrets Aren't To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Bryan Taylor wrote: > they corrected that mistake a few days later and got the document > sealed. I have no idea whether that's sufficient, but judging > from the general insanity of the US court system, I wouldn't > be surprised if it allowed for retroactive status changes. When Cryptome grabbed it from the Court, they did not misappropriate. When they published (which was before the Court sealed it) they did not misapproriate. When you and I and everyone else read it, neither we nor Cryptome misappropriated. By my reading of the UTSA, anyone (say me -- hypothetically) who obtained it from Cryptome can disclosure with imputinty since [mirroring the language of the UTSA] 1. I did not use improper means to acquire knowledge of the trade secret [I got it from Crytpome before it was sealed] 2. At the time of any further disclosure or use by me, I know that my knowledge of the "trade secret" is a) Not derived from or through a person who had utilized improper means to acquire it [Cryptome got it properly] b) Not aquired under circumstances giving rise to a duty to maintain its secrecy or limit its use [Cryptome has no such duty] c) Not derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use [Cryptome has no such duty] __________________________________________________ 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 Sep 6 12:24:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA15719 for dvd-discuss-outgoing; Wed, 6 Sep 2000 12:24:17 -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 MAA15716 for ; Wed, 6 Sep 2000 12:24:16 -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 LAA24407 for ; Wed, 6 Sep 2000 11:25:03 -0500 (CDT) Message-ID: <39B66FD1.79C47C77@uic.edu> Date: Wed, 06 Sep 2000 11:24:50 -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] CSS vs. Access Control Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Typically illogical MPAA response: of course CSS can prevent access: if > you copy a DVD to a DVD-R the licensed player won't play the disc. Reply: If you copy a DVD to a DVD-R, you are making an incomplete copy, because DVD-Rs don't have a writable key area. If you have the equipment to make a complete copy, then the licensed player will play the disc. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 12:45:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16178 for dvd-discuss-outgoing; Wed, 6 Sep 2000 12:45:21 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id MAA16175 for ; Wed, 6 Sep 2000 12:45:20 -0400 Message-ID: <20000906164536.5322.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 06 Sep 2000 09:45:36 PDT Date: Wed, 6 Sep 2000 09:45:36 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Trade Secrets cannot bar 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 --- Tom Vogt wrote: > Bryan Taylor wrote: > > Anyway, the Supreme Court says trade secret law cannot forbid > > independent creation or reverse engineering. A patent's requirement > > of disclosure is quated to the "quid pro quo of the right > > to exclude". The case found no preemption of trade secret law > > by Federal patent law because of the narrowness of trade secret > > law. > > the DVD CCA's point is that the RE itself may have been legal, but > was in violation of the license of the player used. The Supreme Court's reasoning would preempt such an "arms length" contract - they say quite specifically that the Federal patent law's disclosure requirement is the one way to obtain the right to exclude. A state statue, even in conjunction with private individuals attempting to contract, cannot stand as an obstacle to Federal law, which certainly includes Supreme Court rulings. To the extent that trade secret law and contract law together allow nondisclosed information to have a right of exclusive use binding the entire public, then they are preempted by federal patent law. I found this on the net: SOFTWARE PROTECTION--INTEGRATING PATENT, COPYRIGHT AND TRADE SECRET LAW Gregory J. Maier http://www.oblon.com/Pub/seeker.php3?maier-3.html Under this basic definition of trade secret, it is clear that a computer program including logic, structure, and organization can qualify for trade secret protection as long as it is not generally known. 73 Where major software is developed by corporations for internal use, or where a very limited distribution of software is anticipated, the traditionally required level of secrecy is easily maintained. Similarly, if software is developed for sale on a limited basis, contractual or licensing provisions can easily be provided to maintain trade secret protection. But in mass marketing software to over-the-counter customers, it is certainly questionable as to whether an adequate degree of secrecy can be maintained, 74 or whether any contractual trade secrecy provisions can be enforced to the extent traditionally required for trade secret protection. 75 The concept of "shrink-wrap licensing" was developed in an intriguing attempt to accommodate the situation. Due to the dubious common law basis for enforcing shrink-wrap trade secret clauses,76 states such as Louisiana have enacted laws to give these clauses legal effect.77 Footnote 73: Rice, Trade Secret Clauses in Shrink-Wrap Licenses, 2 Computer Law. 17 (Feb. 1985) Footnote 74: [Rice] at 18. Footnote 75: [Rice] at 18,19. Footnote 76: A non-disclosure clause in a shrink-wrap license neither evidences nor creates a confidential relationship since special facts are required to transform an arms-length market transaction to a confidential one. Id. Furthermore, the remoteness of the parties precludes a finding of negotiated terms, and consequently, it would be difficult to enforce the clauses on contract theory. [Rice] at 19. Footnote 77: [Rice] at 20. Such laws might perhaps be challenged on constitutional grounds for giving patent-like protection in perpetuity, which violates the basic policy central to federal patent law. There are also possible conflicts with federal antitrust laws. Due to the uncertain theoretical basis of shrink-wrap trade secret clauses, any protection provided is fraught with doubt. __________________________________________________ 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 Sep 6 12:52:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16675 for dvd-discuss-outgoing; Wed, 6 Sep 2000 12:52:44 -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 MAA16672 for ; Wed, 6 Sep 2000 12:52:42 -0400 Message-ID: <20000906165258.19205.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 06 Sep 2000 09:52:58 PDT Date: Wed, 6 Sep 2000 09:52:58 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Unsealed Published Trade Secrets Aren't To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy Erwin wrote: > But in the above case, the files were left unsealed for 28 months. > The Hoy error was fixed after, IIRC, one week. In addition it is > not clear that the defendents recieved the bulk of the tarde > secret through Mr Hoy's declaration... The 28 months seems to be a factor only because they aren't saying that that is where they got the information from. If it's unsealed for 10 minutes and you get it from there, you didn't use improper means. As someone else pointed out, the Court didn't find loss of trade secret in this case, reasoning that even though the documents were unsealed for some time, there wasn't evidence that this had lead to widespread disclosure. I agree that this might not help the original defendants, but anybody who obtained it after the trade secret was lost should benefit. __________________________________________________ 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 Sep 6 13:50:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17158 for dvd-discuss-outgoing; Wed, 6 Sep 2000 13:50:16 -0400 Received: from web510.mail.yahoo.com (web510.mail.yahoo.com [216.115.104.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA17155 for ; Wed, 6 Sep 2000 13:50:14 -0400 Message-ID: <20000906175030.28444.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 06 Sep 2000 10:50:30 PDT Date: Wed, 6 Sep 2000 10:50:30 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Trade Secret Choice of Law To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 page with 300 trade secret cases summarized http://www.halligan-tradesecrets.com/200.html One of them concerns choice of law, that I think is interesting. It would seem to support Pavlovich's jurisdiction challenge. 20. C&F Packing Co. v. IBP, Inc., 1994 U.S. Dist. Lexis 973 (N.D. Ill. Jan. 26, 1994). Judge Ann Claire Williams. Suit alleging that Pizza Hut misappropriated the secret process that C&F Packing Co. developed for making precooked sausage thus denying C&F the full commercial benefits from its "unique and revolutionary" process. The Defendants' place of domicile was Kansas, the location of the tortious conduct was Illinois, the relationship of the parties did not favor either Kansas or Illinois. The Court concluded that Kansas law governs: "In cases involving the misappropriation of trade secrets and allegations of unfair competition, Illinois courts have long given special weight to one contact - the principal place of the defendant's business. Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc., 66 Ill. App. 3d 789, 383 N.E.2d 1379, 1389, 23 Ill. Dec. 352 (Ill. App. 1978); Wilson v. Electro Marine Systems, Inc., 915 F.2d 1110, 1115 (7th Cir. 1990). As the court explained in Mergenthaler, this contact is particularly important because "that is, where the information was used or the benefit of the use by the defendant was enjoyed." __________________________________________________ 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 Sep 6 14:13:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17456 for dvd-discuss-outgoing; Wed, 6 Sep 2000 14:13:34 -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 OAA17453 for ; Wed, 6 Sep 2000 14:13:32 -0400 Message-ID: <20000906181348.1947.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Wed, 06 Sep 2000 11:13:48 PDT Date: Wed, 6 Sep 2000 11:13:48 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] No Transitive Duty to Secrecy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 good case from the 300-case summaries page: http://www.halligan-tradesecrets.com/200.html This one is #285, and it establishes that there is no confidential relationship for third-party acquisition. That is, contractual secracy does not transitively extend to third parties. __________________________ Glasstech, Inc. v. TGL Tempering Systems, Inc., 1999 WL 364252 (N.D. Ohio) (June 4, 1999). Second, Defendants alleged that Plaintiff has failed to shoe that they acquired the bender or its alleged trade secrets thorough "improper means" as defined under the UTSA. "'Improper means' includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means." Ohio Rev.Code § 1333.61(A). Trade secrets are protected only when they are disclosed or used through improper means. Chicago Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cir. 1982). Furthermore, in order to prove misappropriation of a trade secret, Plaintiff must establish that Defendants acquired the trade secret as a result of a confidential relationship, and that Defendants have used or disclosed the trade secrets. Jostens, Inc. v. National Computer Systems, Inc., 318 N.W.2d 691, 701 (Minn. 1982). See also Eutectic Welding Alloys Corp. v. West, 281 Minn. 13, 18, 160 N.W.2d 566, 570 (1968) (setting out the elements of a trade secret violation). There are no facts provided in the complaint which could be construed to show that Defendants obtained the bender through "theft, bribery,, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means." Ohio Rev.Code § 1333.61(A). Plaintiff merely states that Defendants "surreptitiously" acquired the bender, but fails to provide any facts to bolster this allegation. Furthermore, a claim under the UTSA requires that Defendants must have acquired the trade secret as a result of a confidential relationship. No confidential relationship exists between Plaintiff and Defendants. Glasstech entered into a contractual relationship with Mitsubishi to protect its trade secret, and thus a confidential relationship existed between those two parties. However, Defendants acquired the bender after it had been disposed of through the bankruptcy court and subsequently sold on two separate occasions. As Defendants were not a party to the contract which bound Mitsubishi to protect Glasstech's proprietary information, no confidential relationship exists between Plaintiff and Defendants. Therefore, Defendants' motion to dismiss Plaintiff's cause of action under the UTSA is granted. __________________________________________________ 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 Sep 6 14:14:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17477 for dvd-discuss-outgoing; Wed, 6 Sep 2000 14:14:17 -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 OAA17474 for ; Wed, 6 Sep 2000 14:14:15 -0400 Received: from ip206.bedford9.ma.pub-ip.psi.net ([38.32.79.206]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Wjiv-0004BD-00 for dvd-discuss@eon.law.harvard.edu; Wed, 06 Sep 2000 14:15:01 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Wed, 06 Sep 2000 14:17:35 -0400 Message-ID: <0c2drsgnp52u9h69eefhradd3bgfpgl14r@4ax.com> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <20000906082828.C9483@lemuria.org> <39B64070.A7D92A75@swbell.net> In-Reply-To: <39B64070.A7D92A75@swbell.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 OAA17475 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 06 Sep 2000 08:02:40 -0500, Jolley wrote: >Tom Vogt wrote: >> >> Jolley wrote: >> > Actually, I think it is more disc format control which leads to copy >> > control. I think the problem with trying to copy a DVD to a DVD-R is >> > that there is a critical sector that is "write protected" on the DVD-R >> > media. So the copy control is not with the original DVD or CSS it is >> > the DVD-R media. >> >> technical nitpicking: the critical sector is the one containing the keys. >> it is pre-burned to 0es on DVD-Rs. >> > >Because you can't copy that sector to a DVD-R means it is copy control >not access control. I'd just like to insert my two cents for copy-protection as opposed to access-protection and/or use protection (Macrovision,lack of capture, etc.) There's nothing intrinsically evil about copy protection when dealing with physical media. Anything that enhances the value of the disc supports a market for titles that can exist apart from players and PCs; they can sit on a shelf somewhere. This is opposed to PPV events that vanish from your personal cache when the screen goes dark. Of course DVDCCA tries to shift this market enhancement from titles to players--a shift that is just not needed. Few individuals have the wherewithal to build and market a competing hardware player. And competing hardware/freeware/unencumbered software players only serve to sell more DVD Drives and titles. If it were only copy-protection, we'd have no argument. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 15:36:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19191 for dvd-discuss-outgoing; Wed, 6 Sep 2000 15:36:07 -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 PAA19188 for ; Wed, 6 Sep 2000 15:36:04 -0400 Message-ID: <20000906193620.15318.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Wed, 06 Sep 2000 12:36:20 PDT Date: Wed, 6 Sep 2000 12:36:20 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] First Amendment v Trade Secret Prior Restraints To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Case #270, Ford Motor Company v. Lane, at http://www.halligan-tradesecrets.com/200.html A injunctive prior restraint on trade secret disclosure violates the First Amendment. This is true both for private parties over the internet and the traditional press. Why aren't we getting these judges? Why aren't our judges following these precedents? Ford v Lane concerned internet publication, and sites heavily from Procter & Gamble v Bankers Trust: _________________________ PROCTER & GAMBLE CO. v. BANKERS TRUST CO. 78 F.3d 219 (6th Cir. 1996) http://www.eff.org/pub/Legal/Cases/proctergamble_v_bankerstrust_decision.html "The private litigants' interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint." ___________________________ Ford Motor Company v. Lane, 52 U.S.P.Q.2d 1345, E.D. Mich. (Sept. 7, 1999). When Ford advised Lane that the Company intended to file a lawsuit and to seek an injunction against him, Lane responded by posting approximately forty Ford documents online, including materials with high competitive sensitivity. Lane testified that he did not know the identity of anyone who provided him with the confidential Ford information that he wrote about and posted verbatim on his website. Lane was aware of the confidential nature of the Ford documents that he published. Although Ford has presented evidence to establish that Lane is likely to have violated the Michigan Uniform Trade Secrets Act, the Act's authorization of an injunction violates the prior restraint doctrine and the First Amendment as applied under these circumstances. The broad parameters of the prior restraint doctrine were further explained in the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971). There, the federal government sought to enjoin The New York Times and The Washington Post from publishing a classified study on U.S. policy-making in Vietnam. The Court observed that, because any prior restraint on speech is presumptively invalid under the First Amendment, the government bore a heavy burden of showing a justification for the restraint. Finding that the government had not met its burden, the Court denied the injunction. The Sixth Circuit has recently applied the prior restraint doctrine to overturn an injunction against the publication of trade secrets and other confidential material in Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). Procter & Gamble and Bankers Trust were parties to civil litigation and had stipulated to the entry of a protective order, which prohibited disclosure of trade secrets and other confidential documents obtained during the discovery process. A journalist from Business Week magazine obtained some of those documents. Procter & Gamble and Bankers Trust sought am injunction prohibiting Business Week from publishing or disclosing any information contained in the documents. However, the Sixth Circuit planned publication of the documents did not constitute a grave threat to a critical government interest or to a constitutional right sufficient to justify a prior restraint. To justify a prior restraint on pure speech, "publication must threaten an interest more fundamental than the First Amendment itself." __________________________________________________ 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 Sep 6 15:44:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19730 for dvd-discuss-outgoing; Wed, 6 Sep 2000 15:44:36 -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 PAA19727 for ; Wed, 6 Sep 2000 15:44:34 -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 OAA05571 for ; Wed, 6 Sep 2000 14:45:21 -0500 (CDT) Message-ID: <39B69EC4.34598AE0@uic.edu> Date: Wed, 06 Sep 2000 14:45:09 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trade Secret Choice of Law Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I found a page with 300 trade secret cases summarized > http://www.halligan-tradesecrets.com/200.html Such an interesting page ... tales of skullduggery, deceit, and pizza sauce ... One interesting entry: | 197. RMS Software Development, Inc. v. LCS, Inc., 1998 Tex. App. Lexis 1053 (February 19, 1998). | | RMS is not the owner of the trade secret involved in this lawsuit, thus it has no standing to sue for | misappropriation of that secret. | | NON-EXCLUSIVE LICENSEE HAS NO STANDING TO SUE FOR TRADE SECRET MISAPPROPRIATION; | ONLY TRADE SECRET OWNER CAN SUE. which seems to imply that only the DVD-CCA can make the trade secret misappropriation claim, over DeCSS, not the MPAA. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 15:55:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19920 for dvd-discuss-outgoing; Wed, 6 Sep 2000 15:55:24 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19917 for ; Wed, 6 Sep 2000 15:55:17 -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 OAA25635 for ; Wed, 6 Sep 2000 14:55:30 -0500 Message-ID: <39B6A181.50FFE366@mninter.net> Date: Wed, 06 Sep 2000 14:56:49 -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] Trade Secret Choice of Law References: <39B69EC4.34598AE0@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 Which they are. They got at least that much right. > which seems to imply that only the DVD-CCA can make the trade secret > misappropriation claim, > over DeCSS, not the MPAA. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 16:02:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20261 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:02:07 -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 QAA20256 for ; Wed, 6 Sep 2000 16:02:05 -0400 Message-ID: <20000906200221.8370.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 06 Sep 2000 13:02:21 PDT Date: Wed, 6 Sep 2000 13:02:21 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Trade Secrets cannot bar 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 --- Frank Andrew Stevenson wrote: > > It is even weaker than that, under the DVD CCA only have to show that > it was found by 'improper means' under Californian law. The > preliminary injunction case in January was largely lost by the > scent of some slashdot postings, that should never have been > allowed admitted as evidence. The more I read about trade secret law, the more I'm convinced that the CA case will be reversed. In fact, it is an amazingly bad ruling. Here's yet another court's reasoning that was ignored (it should be noted that one states rulings aren't binding on another, but 40 states including CA have adopted the same UTSA law, so it is reasonable to expect that simliar conclusions of law will result): Tempel Steel Co. v. Bayer, 46 U.S.P.Q.2d 1623 (U.S.Dist.Ct. N.D.Ill. 1998). The Illinois Supreme Court has recognized that even where there has been misappropriation of valid trade secrets, any injunction against Defendants should last no longer than it would take the Defendants to develop the technology without using any trade secrets. Brunswick Corp. v. Outboard Marine Corp., 79 Ill.2d 475, 404 N.E.2d 205, 206 [207 USPQ 1039] (1980). The injunction here should have lasted no more than eight weeks. __________________________________________________ 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 Sep 6 16:09:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20331 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:09:45 -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 QAA20328 for ; Wed, 6 Sep 2000 16:09:44 -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 e86KA0X29574 for ; Wed, 6 Sep 2000 16:10:01 -0400 (EDT) Message-ID: <39B6A4AA.B4EE82CD@mindspring.com> Date: Wed, 06 Sep 2000 16:10:19 -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] Reply Comments Are 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 http://lcweb.loc.gov/copyright/reports/studies/dmca/reply/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 16:13:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20426 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:13:00 -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 QAA20423 for ; Wed, 6 Sep 2000 16:12:58 -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 e86KDFX29617 for ; Wed, 6 Sep 2000 16:13:15 -0400 (EDT) Message-ID: <39B6A56D.A1C929CF@mindspring.com> Date: Wed, 06 Sep 2000 16:13:33 -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] Reply Comments Are Online References: <39B6A4AA.B4EE82CD@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 Sorry, just the index is live, pdf's not there yet... mickeym wrote: > http://lcweb.loc.gov/copyright/reports/studies/dmca/reply/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 16:17:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20489 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:17:39 -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 QAA20486 for ; Wed, 6 Sep 2000 16:17:38 -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 QAA20126; Wed, 6 Sep 2000 16:18:24 -0400 (EDT) Message-ID: <39B6A710.948A36FC@mit.edu> Date: Wed, 06 Sep 2000 16:20:32 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reply Comments Are Online References: <39B6A4AA.B4EE82CD@mindspring.com> <39B6A56D.A1C929CF@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: > > Sorry, just the index is live, pdf's not there yet... > > mickeym wrote: > > > http://lcweb.loc.gov/copyright/reports/studies/dmca/reply/ I'm having no problems getting at the pdf reply comments. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 16:38:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20724 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:38:15 -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 QAA20721 for ; Wed, 6 Sep 2000 16:38:13 -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 e86KcTX00146 for ; Wed, 6 Sep 2000 16:38:29 -0400 (EDT) Message-ID: <39B6AB57.22ECDB94@mindspring.com> Date: Wed, 06 Sep 2000 16:38:48 -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] Time Warner Reply References: <39B6A4AA.B4EE82CD@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 > What is fundamentally involved in this inquiry is, on the one > hand, a chimera made up of suppositions and predictions about future behavior of > content owners and, on the other hand, real and soundly based apprehensions > concerning what would happen to digitized works in the absence of adequate > technological protection. > Which is exactly backwards. There are suppositions about content users, and there is no digital danger. > This possibility of distribution of the work to an unlimited number of > recipients is a very real one. When that certainty or near certainty is weighed > against the unsupported concerns expressed by some of the Comments, it is clear > that any decision must come down on the side of keeping the first sale doctrine to > its present office. A CONTRARY RESULT WOULD MEAN THAT > CONTENT OWNERS WOULD NOT DARE TO MAKE THEIR WORKS > AVAILABLE FOR TRANSMISSION ON THE INTERNET. THIS WOULD > BE A GREAT LOSS TO THE PUBLIC INCLUDING THE ENTITIES AND > INDIVIDUALS WHO HAVE SUBMITTED COMMENTS. > Fine. Don't produce movies. A smarter company will do it better. mickeym From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 16:40:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20829 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:40:12 -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 QAA20821 for ; Wed, 6 Sep 2000 16:40:10 -0400 Message-ID: <20000906204026.26259.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 06 Sep 2000 13:40:26 PDT Date: Wed, 6 Sep 2000 13:40:26 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Trade Secret Choice of Law To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Two more cases that denied personal jurisdiction for alleged out of state misapporpriate of trade secrets. These are #205 and #207 respectively at http://www.halligan-tradesecrets.com/200.html The first case rejects an argument that is exactly like the one made by the DVD-CCA. The second similarly puts a lower bound on "minimum contacts" needed. ________________ Surgical Laser Technologies, Inc. v. C.R. Bard, Inc., 921 F.Supp. 281 (E.D. Pa. 1996). Trimedyne was a Nevada corporation with its principal place of business in California; it had no agent for service in Pennsylvania; did not own or directly lease any property in Pennsylvania; had no Pennsylvania telephone listing or address; and did not advertise in any Pennsylvania publications. Therefore, there was no general personal jurisdiction over Trimedyne. The issue was whether the Court had specific jurisdiction over Trimedyne because the claim was for trade secret misappropriation. Trimedyne has not directed any activity at Pennsylvania: no negotiation, no bid, no bargain, no benefit, no breach, no betrayal. Its alleged inference with SLT's contract took place in India, half a world away. Its alleged receipt of SLT's trade secrets similarly took place outside Pennsylvania. While Trimedyne could have reasonably foreseen that either or both of these activities would cause harm to SLT in Pennsylvania, this knowledge, standing alone, does not establish the minimum contacts required for a Pennsylvania court to exercise jurisdiction. Standing alone, the allegation that tortious conduct outside Pennsylvania foreseeably caused harm inside Pennsylvania is simply not enough to alert a reasonable person that he might be haled into a Pennsylvania court. See Narco Avionics, Inc. v. Sportsman's Market, Inc., 792 F.Supp. 398, 407 (E.D. Pa. 1992). ________________ Burlington Industries, Inc. v. Maples Industries, Inc., No. 95-3527, 97 F.3d 1100, (8th Cir. 1996) http://caselaw.findlaw.com/scripts/getcase.pl?court=8th&navby=case&no=953527P Burlington sued Maples in Arkansas and Maples moved to dismiss the lawsuit for lack of personal jurisdiction. The District Court denied the motion to dismiss, but the Eighth Circuit Court of Appeals reverses. Due process requires "minimum contacts" between the non-resident defendant and the forum state such that "maintenance of the suit does not offend traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The defendant's conduct and connection with the forum state must be such that defendant should "reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 297, 100 S.Ct. at 567. General jurisdiction refers to the power of a state to adjudicate any cause of action and does not depend on the relationship between the cause of action and the contacts. Wessels, Arnold & Henderson v. National Medical Waste, Inc., 65 F.3d 1427, 1432 n. 4 (8th Cir. 1995). Where specific personal jurisdiction over a non-resident is asserted, due process is satisfied if the defendant has purposely directed its activities at forum residents, and the litigation results from injuries arising out of, or relating to, those activities. Maples has insufficient contacts with Arkansas to confer personal jurisdiction. Its limited commercial activities in Arkansas are insufficient to confer general jurisdiction in Arkansas. Its beyond Arkansas-borders machine purchases from an Arkansas vendor are insufficient to provide specific jurisdiction on these facts. __________________________________________________ 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 Sep 6 16:51:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20924 for dvd-discuss-outgoing; Wed, 6 Sep 2000 16:51:09 -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 QAA20921 for ; Wed, 6 Sep 2000 16:51:08 -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 e86KptK04057 for ; Wed, 6 Sep 2000 15:51:55 -0500 (CDT) Received: from localhost (sytobinh@localhost) by harper.uchicago.edu (8.10.1/8.10.1) with ESMTP id e86Kpt903297 for ; Wed, 6 Sep 2000 15:51:55 -0500 (CDT) X-Authentication-Warning: harper.uchicago.edu: sytobinh owned process doing -bs Date: Wed, 6 Sep 2000 15:51:55 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Reply Comments Are Online In-Reply-To: <39B6A4AA.B4EE82CD@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 >From the MPAA/etc reply - In summary, our review of these comments does not change our view that section 109 of the Copyright Act should not be amended. To do so would neither facilitate the growth of electronic commerce, nor promote the development of new technologies for creating, disseminating and using copyrighted materials. I find this quote to be as clear a statement of the basic problem as we are likely to find. The copyright industry does not even understand motives other than those listed above, or else attributes them to suh evil people as to be otherwise unfathomable. They simply don't get that we are not intrested in the "growth of electoronic commerce" or other such. sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 18:01:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA21592 for dvd-discuss-outgoing; Wed, 6 Sep 2000 18:01:28 -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 SAA21589 for ; Wed, 6 Sep 2000 18:01:24 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13WnGk-0000Zk-00 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 00:02:10 +0200 Date: Thu, 7 Sep 2000 00:02:10 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DVD-CCA, breaking the camels back In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The DVD-CCA didn't pull the number of does (500) from their hat, I think it is the maximum number of defendandts they can have in this sort of case. Gedankeksperiment: Get 501 people to declare that they will post the declaration of Hoy (exhibit B) on their website, come Hell or high water. Would that mean the end of the DVD CCA case, as they can't cover all declarants with a single injuction. Do they still have a recourse in the law ? Will it force them into a war of atrition, having to get the injuctions one by one ? Perhaps getting a mirror list of 500+ sites would do the trick ? frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 18:40:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA21993 for dvd-discuss-outgoing; Wed, 6 Sep 2000 18:40:05 -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 SAA21990 for ; Wed, 6 Sep 2000 18:40:04 -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 SAA01121; Wed, 6 Sep 2000 18:40:50 -0400 (EDT) Message-ID: <39B6C872.D1B64A91@mit.edu> Date: Wed, 06 Sep 2000 18:42:58 -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] DVD-CCA, breaking the camels back 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: > > The DVD-CCA didn't pull the number of does (500) from their hat, > I think it is the maximum number of defendandts they can have in > this sort of case. > > Gedankeksperiment: Get 501 people to declare that they will post > the declaration of Hoy (exhibit B) on their website, come Hell or high > water. > > Would that mean the end of the DVD CCA case, as they can't cover all > declarants with a single injuction. Do they still have a recourse in the > law ? > > Will it force them into a war of atrition, having to get the injuctions > one by one ? Perhaps getting a mirror list of 500+ sites would do the > trick ? > > frank > > This sentence is unique in this respect; it can safely > be attributed to my employer, Funcom Oslo AS. > There is no place like N59 50.558' E010 50.870'. (WGS84) > I enjoy coffee, and support cafe: http://www.eff.org/cafe/ How solid is that limit? I could easily imagine a court suspending it if presented evidence that defendants were creating does to take advantage of it. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 18:52:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22141 for dvd-discuss-outgoing; Wed, 6 Sep 2000 18:52:30 -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 SAA22138 for ; Wed, 6 Sep 2000 18:52:28 -0400 Received: from ppp.anonymizer.com (c03-154.015.popsite.net [64.24.74.154]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id PAA21847 for ; Wed, 6 Sep 2000 15:55:13 -0700 (PDT) Message-Id: <4.3.2.7.2.20000906155041.00a9aa80@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 06 Sep 2000 15:53:09 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] DVD-CCA, breaking the camels back In-Reply-To: <39B6C872.D1B64A91@mit.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 Consider it vaporware. There is no such limit. At 06:42 PM 9/6/2000 -0400, Ravi Nanavati wrote: >Frank Andrew Stevenson wrote: > > > > The DVD-CCA didn't pull the number of does (500) from their hat, > > I think it is the maximum number of defendandts they can have in > > this sort of case. >How solid is that limit? I could easily imagine a court >suspending it if presented evidence that defendants were >creating does to take advantage of it. > > - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 19:36:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22443 for dvd-discuss-outgoing; Wed, 6 Sep 2000 19:36:58 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA22440 for ; Wed, 6 Sep 2000 19:36:56 -0400 Received: by aero.org id <17348-7>; Wed, 6 Sep 2000 16:37:28 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdWHBa01249; Wed Sep 6 16:14:44 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 16:02:48 -0700 Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering 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 09/06/2000 04:02:47 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 6 Sep 2000 16:14:53 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well the crux of that argument is that as a CONSUMER, I am merely buying a license to play my DVDs on licensed players. I don't really own it like I own my car, my CD player or even my underwear....I'm just buying a license in a place that sells personal property. So..they violated the license agreement. [If they did not then the people who did are liable and not the people who did the RE] Tom Vogt Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering 09/05/00 11:48 PM Please respond to dvd-discuss Bryan Taylor wrote: > Anyway, the Supreme Court says trade secret law cannot forbid > independent creation or reverse engineering. A patent's requirement of > disclosure is quated to the "quid pro quo of the right to exclude". The > case found no preemption of trade secret law by Federal patent law > because of the narrowness of trade secret law. the DVD CCA's point is that the RE itself may have been legal, but was in violation of the license of the player used. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 19:37:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22455 for dvd-discuss-outgoing; Wed, 6 Sep 2000 19:37:38 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA22452 for ; Wed, 6 Sep 2000 19:37:36 -0400 Received: by aero.org id <17326-1>; Wed, 6 Sep 2000 16:38:05 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdZNBa01249; Wed Sep 6 16:34:11 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 16:32:37 -0700 Subject: Re: [dvd-discuss] Reply Comments Are Online 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 09/06/2000 04:32:37 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 6 Sep 2000 16:34:24 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "there's more in it than a filthy purse string" - J.Adams in the Play "1776" I haven't read all the replys but the ones that I did read I found VERY amusing..."Don't read what the OTHERS said...it's irrelevant....we don't feel that it's what we want".. Bryan, Paul, Arnold, Mickey ...thanks. BTW- "promoting new technologies" - They really don't understand what that means. sam th Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] Reply Comments Are Online 09/06/00 01:54 PM Please respond to dvd-discuss >From the MPAA/etc reply - In summary, our review of these comments does not change our view that section 109 of the Copyright Act should not be amended. To do so would neither facilitate the growth of electronic commerce, nor promote the development of new technologies for creating, disseminating and using copyrighted materials. I find this quote to be as clear a statement of the basic problem as we are likely to find. The copyright industry does not even understand motives other than those listed above, or else attributes them to suh evil people as to be otherwise unfathomable. They simply don't get that we are not intrested in the "growth of electoronic commerce" or other such. sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 19:37:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA22464 for dvd-discuss-outgoing; Wed, 6 Sep 2000 19:37:49 -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 TAA22461 for ; Wed, 6 Sep 2000 19:37:48 -0400 Received: by aero.org id <17388-1>; Wed, 6 Sep 2000 16:38:20 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdNIBa01249; Wed Sep 6 16:14:52 2000 Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 16:09:34 -0700 Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering 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 09/06/2000 04:09:33 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 6 Sep 2000 16:15:17 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well...your comment reminds me of an interview I read with the President of Sony about 15 yrs ago. He commented that what was wrong with business in the USA WAS the management of businesses in the USA. Their UHG tape was developed by a couple of guys in the USA who couldn't get AMPEX to buy the process. Sony Did. At some point the USA may aquire an intellectual trade deficit. Frank Andrew Stevenson To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Trade Secrets cannot arvard.edu bar Reverse Engineering 09/06/00 12:42 AM Please respond to dvd-discuss It is even weaker than that, under the DVD CCA only have to show that it was found by 'improper means' under Californian law. The preliminary injunction case in January was largely lost by the scent of some slashdot postings, that should never have been allowed admitted as evidence. frank On Wed, 6 Sep 2000, Tom Vogt wrote: > Bryan Taylor wrote: > > Anyway, the Supreme Court says trade secret law cannot forbid > > independent creation or reverse engineering. A patent's requirement of > > disclosure is quated to the "quid pro quo of the right to exclude". The > > case found no preemption of trade secret law by Federal patent law > > because of the narrowness of trade secret law. > > the DVD CCA's point is that the RE itself may have been legal, but was in > violation of the license of the player used. 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 Sep 6 21:06:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23763 for dvd-discuss-outgoing; Wed, 6 Sep 2000 21:06:55 -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 VAA23760 for ; Wed, 6 Sep 2000 21:06:53 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 02:56:57 +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; Thu, 7 Sep 2000 02:52:10 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 02:52:10 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA, breaking the camels back Message-ID: <20000907025210.A12385@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 Frank Andrew Stevenson wrote: > Will it force them into a war of atrition, having to get the injuctions > one by one ? Perhaps getting a mirror list of 500+ sites would do the > trick ? we have, at one time, had far more than 500 mirrors in the various lists. I think the number was roughly twice that in unique sites. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 21:10:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23890 for dvd-discuss-outgoing; Wed, 6 Sep 2000 21:10:45 -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 VAA23887 for ; Wed, 6 Sep 2000 21:10:44 -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 VAA13557 for ; Wed, 6 Sep 2000 21:11:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA00019; Wed, 6 Sep 2000 21:11:32 -0400 (EDT) Date: Wed, 6 Sep 2000 21:11:32 -0400 (EDT) Message-Id: <200009070111.VAA00019@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael A. Rolenz writes: > Well the crux of that argument is that as a CONSUMER, I am merely buying a > license to play my DVDs on licensed players. I don't really own it like I > own my car, my CD player or even my underwear....I'm just buying a license > in a place that sells personal property. So..they violated the license > agreement. [If they did not then the people who did are liable and not the > people who did the RE] Not to bore people, but once again, we've seen no one contend that you're bound to a license agreement when you buy a DVD. There are license agreements on software *players*, which is one of the issues in the California case, but that's different. Marks freely admitted that there's no license associated with a DVD in the Stanford hearing, and Kaplan said it was "perfectly obvious" in court. (We wasted a fair amount of time early on wondering if the "for home use only" legend on some DVD cartons was meant to constitute a license agreement, as opposed to simply asserting the copyright holder's right to control public performance; but Marks said that it wasn't in pretty plain English). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 21:17:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23955 for dvd-discuss-outgoing; Wed, 6 Sep 2000 21:17:16 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA23952 for ; Wed, 6 Sep 2000 21:17:15 -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 VAA25927 for ; Wed, 6 Sep 2000 21:18:01 -0400 (EDT) Message-ID: <39B6ECC3.BE7327AC@mediaone.net> Date: Wed, 06 Sep 2000 21:17:55 -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, breaking the camels back References: <20000907025210.A12385@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: > > Frank Andrew Stevenson wrote: > > Will it force them into a war of atrition, having to get the injuctions > > one by one ? Perhaps getting a mirror list of 500+ sites would do the > > trick ? > > we have, at one time, had far more than 500 mirrors in the various lists. I > think the number was roughly twice that in unique sites. Then there are the 'private' copies, and descramble.mp3; which I've been able to find on Gnutella... There should be a few tens of thousands John Does out there by now. > -- > "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 Wed Sep 6 22:22:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24672 for dvd-discuss-outgoing; Wed, 6 Sep 2000 22:22:11 -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 WAA24669 for ; Wed, 6 Sep 2000 22:22:10 -0400 Message-ID: <20000907022227.4573.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Wed, 06 Sep 2000 19:22:27 PDT Date: Wed, 6 Sep 2000 19:22:27 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Findlaw page on internet jurisdiction To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 good Findlaw page on personal jurisdiction on the internet, by Christopher Wolf (ironically of Proskauer Rose) http://profs.findlaw.com/netjuris/netjuris_2.html This was written in late 1999 and has a few case citations that are pretty recent. These include a pretty strong one from the 5th Circuit, which should help Matt Pavlovich. This case actually has a really succinct summary of the law, and relies heavily on the Zippo case. ________________________ Mink v AAAA Development No. 98-20770 (5th Cir. 1999) http://www.ca5.uscourts.gov/opinions/pub/98/98-20770-CV0.HTM In this case, the presence of an electronic mail access, a printable order form, and a toll-free phone number on a website, without more, is insufficient to establish personal jurisdiction. Absent a defendant doing business over the Internet or sufficient interactivity with residents of the forum state, we cannot conclude that personal jurisdiction is appropriate. __________________________________________________ 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 Sep 6 22:27:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24807 for dvd-discuss-outgoing; Wed, 6 Sep 2000 22:27:29 -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 WAA24803 for ; Wed, 6 Sep 2000 22:27:12 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA03829 for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 22:28:21 -0400 Date: Wed, 6 Sep 2000 22:28:16 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000906222815.C3112@eldritchpress.org> References: <20000905185103.6189.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000905185103.6189.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Sep 05, 2000 at 11:51:03AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 05, 2000 at 11:51:03AM -0700, Bryan Taylor wrote: > > --- Wendy Seltzer wrote: > > Kaplan describes his finding of functionality as "a proxy for the > > consequences of use" (60), then says essentially that anyone who > > posts code on the Internet must presume that someone will download > > and use it. "Given the virtually instantaneous and worldwide > > dissemination widely available via the Internet, 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). The speech value of code is outweighed for > > him by its use value. Without quite saying so, Kaplan > > pigeonholes code-speech alongside obscenity and > > "expressive conduct" as disfavored. > > By applying the O'Brien standard, he actually decides that distributing > code is "expressive conduct". He found that functionality was a > "nonspeech" element that dominated over the incidental speech elements > that were not the target of the statute. But in applying O'Brien, Kaplan is bound to follow the standard that case raised in how to consider First Amendment cases. And we can argue that he does not. What is happening here is that the First Amendment issue is being raised by defense in an effort to get at least intermediate scrutiny by the courts. Once the scrutiny is attained, the courts need to decide on the basis of the particular facts. I would argue we go to the heart of the matter: the O'Brien tests rely on government's having a constitutional and sufficient, valid reason, to regulate speech (whether the speech is conduct or not, "functional" or not). In the O'Brien case, the court determined the govt had an interest in maintaining an efficient Selective Service System by means of the war powers clause in the Constitution. However, speech in the form of DeCSS has no valid reason to be regulated. The only testimony from Congress on the matter was that the DMCA was an effort to help movie studios distribute movies without fear of having to change their business model. But the U.S. Constitution allows regulation in the Copyright Law only "to promote the progress of science and the useful arts." As the Patterson article argues, the studios' limited rights end with publishing and vending. Unless DeCSS can be shown to interfere with the Constitutional rights, then the DMCA is unconstitutional. What I am saying is that even if Kaplan is correct in applying the DMCA to DeCSS, he cannot do so because his application does not follow O'Brien, and thus he must throw out the DMCA. The DMCA attempts to expand copy control into access control without justification under copyright law. (As some have pointed out here, there might be justification under the commerce clause, but since the DMCA is copyright law, copyright law principles must prevail here.) Secondly, applying the O'Brien rules to an undisputed publisher runs afoul of the "no prior restraint" principle. By banning some piece of code, whether "functional" or not, and prohibiting any published reference to the information forever, Kaplan is applying copyright law to works that have not even been published yet--clearly this is not in accord with the Constitution's copyright clause. And he is applying copyright law in perpetuity, completely against the Constitution's "limited times" provision. > I think the problem is that functionality is NOT conduct at all,... What was "functional" about O'Brien's act is that he actually burned the draft card and could not produce one when asked by the FBI agents. The court decided that his act was indeed speech, but the act went beyond speech to actually interfere with the Selective Service System (or so both sides stipulated). In the case of DeCSS, it appears to be up to defense to provide facts on how the code is to be used, and unless there is some "significant commercial" use that is "not circumvention," then the code is determined (somehow) to be identical to conduct and thus bannable. How did Kaplan jump from finding a fact, that DeCSS was "functional" code, to deciding that its "function" was to circumvent--when plaintiffs stipulated they had no facts to show that it was actually used in circumvention? It can't be because all code is functional or not--how can one decide such a thing a priori? As in O'Brien, the only way is to determine, carefully, and case by case, the facts in the particular situation. And that rules out a decision based just on judging the technology as removed from human motives or responsibility or authority. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 22:44:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25021 for dvd-discuss-outgoing; Wed, 6 Sep 2000 22:44:36 -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 WAA25018 for ; Wed, 6 Sep 2000 22:44:35 -0400 Message-ID: <20000907024453.14461.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Wed, 06 Sep 2000 19:44:53 PDT Date: Wed, 6 Sep 2000 19:44:53 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Trade Secrets cannot bar 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 --- "Robert S. Thau" wrote: > Not to bore people, but once again, we've seen no one contend that > you're bound to a license agreement when you buy a DVD. There are > license agreements on software *players*, which is one of the issues > in the California case, but that's different. Marks freely admitted > that there's no license associated with a DVD in the Stanford > hearing, and Kaplan said it was "perfectly obvious" in court. I'd like to chime in that the idea that "our products are not sold, they are only licenced" is pretty well refuted by Nimmer in his Metamorphosis paper and Judge Greene in Novell v. Network Trade Center. Nimmer traces the idea's origin to Microsoft v Harmony and then back to some legal writings written by internal counsel for, surprise, Microsoft. I put a little bit about this in my reply comment. __________________________________________________ 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 Sep 6 23:02:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25539 for dvd-discuss-outgoing; Wed, 6 Sep 2000 23:02:45 -0400 Received: from dial241.roadrunner.com (sf-du241.cybermesa.com [209.12.75.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25536 for ; Wed, 6 Sep 2000 23:02:42 -0400 Received: (from paul@localhost) by dial241.roadrunner.com (8.8.7/8.8.7) id VAA01039 for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 21:05:12 -0600 Date: Wed, 6 Sep 2000 21:05:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First sale vs. 'licensing', was: Reply Comments Are Online Message-ID: <20000906210510.A911@localhost> References: <39B6A4AA.B4EE82CD@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39B6A4AA.B4EE82CD@mindspring.com>; from mickeym@mindspring.com on Wed, Sep 06, 2000 at 04:10:19PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 06, 2000 at 04:10:19PM -0400, mickeym wrote: > > http://lcweb.loc.gov/copyright/reports/studies/dmca/reply/ I strongly recommend the reply comment by the Libraries Association: for an excellent analysis of First Sale. Some of the best stuff in the reply comment begins, In United States v. Masonite Corp., the Supreme Court held that whether a particular disposition of a patented article is equivalent to a "first sale" is not governed by "the form into which the parties chose to cast the transaction. The test has been whether or not there has been such a disposition of the article that it may fairly be said that the patentee has received his reward for the use of the article." United States v. Masonite Corp., 316 U.S. 265, 278 (1942). This rule has been widely applied in the copyright context, see, e.g., Platt & Munk Co., Inc. v. Republic Graphics, Inc., 315 F. 2d 847 (2d Cir. 1963); Burke & Van Heusen, Inc. v. Arrow Drug, Inc., 233 F. Supp. 881 (E.D. Pa. 1964). The "disposition-reward" rule clarifies that when a copyright owner exercises the right of distribution, the owner is not merely distributing physical objects: the owner is effectively distributing the right to the end consumer to access copyrighted content that is fixed therein. In other words, the right to access the copyrighted content must not be confused with the incidental possession of the object that facilitates practical exercise of the right. It is access to the copyrighted material which has been parted with by the [ Page 5 ] copyright owner in first sale, and it is that right of access which is alienable under the first sale doctrine, regardless of whether it is facilitated by tangible or intangible means. This can be viewed as an extension of the cases that Bryan has quoted from patent law that say, roughly: if the monopoly owner has received their compensation, then any talk of "licensing" is a play on words. (i.e. commerce isn't sophistry.) The analysis provides an excellent discussion of why *access to a work* is the audience's side of the copyright quid pro quo of first sale. Again, this is an excellent submission. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 23:10:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25666 for dvd-discuss-outgoing; Wed, 6 Sep 2000 23:10:12 -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 XAA25663 for ; Wed, 6 Sep 2000 23:09:57 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA04017 for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 23:11:06 -0400 Date: Wed, 6 Sep 2000 23:11:01 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering Message-ID: <20000906231101.E3112@eldritchpress.org> References: <20000906083414.E9483@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from frank@funcom.com on Wed, Sep 06, 2000 at 09:40:52AM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 06, 2000 at 09:40:52AM +0200, Frank Andrew Stevenson wrote: > > It is even weaker than that, under the DVD CCA only have to show that it > was found by 'improper means' under Californian law. Yes, but the California Civil Code Section 3426.1 at (please unwrap): http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/ca_unif_trade_sec_act_misap_defin.html (This is the implementation in California of the Uniform Trade Secrets Act.) says quite specifically, "3426.1. As used in this title, unless the context requires otherwise: (a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means. " > > frank > > On Wed, 6 Sep 2000, Tom Vogt wrote: > > Bryan Taylor wrote: > > > Anyway, the Supreme Court says trade secret law cannot forbid > > > independent creation or reverse engineering. A patent's requirement of > > > disclosure is quated to the "quid pro quo of the right to exclude". The > > > case found no preemption of trade secret law by Federal patent law > > > because of the narrowness of trade secret law. > > > > the DVD CCA's point is that the RE itself may have been legal, but was in > > violation of the license of the player used. And Bryan points out that federal law overrules any contract or license that says so. I would add that California Trade Secrets law does too. So where is some other law that bars RE? The remaining question is if "alone" is sufficient alone here. On the other hand, the other "improper means" described above don't look very promising for the DVD-CCA either. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 23:47:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26023 for dvd-discuss-outgoing; Wed, 6 Sep 2000 23:47:41 -0400 Received: from dial125.roadrunner.com (sf-du125.cybermesa.com [209.12.75.125]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA26020 for ; Wed, 6 Sep 2000 23:47:38 -0400 Received: (from paul@localhost) by dial125.roadrunner.com (8.8.7/8.8.7) id VAA01277 for dvd-discuss@eon.law.harvard.edu; Wed, 6 Sep 2000 21:50:08 -0600 Date: Wed, 6 Sep 2000 21:50:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000906215006.A1089@localhost> References: <20000905185103.6189.qmail@web514.mail.yahoo.com> <20000906222815.C3112@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000906222815.C3112@eldritchpress.org>; from eldred@eldritchpress.org on Wed, Sep 06, 2000 at 10:28:16PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 06, 2000 at 10:28:16PM -0400, Eric Eldred wrote: [ ... A discussion of O'Brien snipped ... ] > How did Kaplan jump from finding a fact, that DeCSS was > "functional" code, to deciding that its "function" was to > circumvent--when plaintiffs stipulated they had no facts to > show that it was actually used in circumvention? Kaplan leap to this on January 21st, 2000 during the first hearing. So far as I know, he has never reconsidered his first faulty leap of faith. Circumvent means to descramble, and that's what DeCSS does. A technological measure effectively controls the access here to do the protected work and CSS is such a measure and it's designed to control access to our copyrighted works. Because CSS is an encryption technology, you've got to have a software key to open it, so CSS qualifies as an access control measure. And all of the statutory requirements are met, and defendants are clearly violating them. The judge having been duly indoctrinated, we get: THE COURT: The charge against your clients is providing a device which is a means for circumventing an access limiting factor. The infringement would be done by someone else, although it might be done by your client, it need not be. Nor is the infringement essential to the violation of 1201. Is there some error in that, counsel? MS. GROSS: I think you need to have--I'm sorry. MR. LEVY: Essentially, your Honor, our reading of the DMCA, certainly in order to make it a constitutional reading, is that it does not => outlaw any type of decryption. It only outlaws decryption that affects copyrighters' rights, and to that extent the two are read together; that is, it is not the case that as soon as you engage in the science of cryptology you have violated the DMCA, though certainly those raise other constitutional issues. That's essentially what we are saying. Is that clear? THE COURT: What you've said is clear. It's just very different from what Congress said. [ ... ] THE COURT: It says that you can't offer to the public any technology, product, service, etc., that's primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a protected work. Now, is there any doubt that CSS protects access to a copyrighted work? Is there any at all? MS. GROSS: Agreed. => THE COURT: Is there any doubt at all that DeCSS is a device that => circumvents CSS? => MS. GROSS: It does descramble it. => THE COURT: Okay. => MS. GROSS: But that-- => THE COURT: With that established, let's proceed. > It can't be > because all code is functional or not--how can one decide such > a thing a priori? As in O'Brien, the only way is to determine, > carefully, and case by case, the facts in the particular > situation. And that rules out a decision based just on judging > the technology as removed from human motives or responsibility > or authority. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 6 23:51:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26136 for dvd-discuss-outgoing; Wed, 6 Sep 2000 23:51:08 -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 XAA26133 for ; Wed, 6 Sep 2000 23:51:06 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id UAA07587 for ; Wed, 6 Sep 2000 20:52:05 -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 smtpdAAANmaGYo; Wed Sep 6 20:52:02 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 UAA12244 for ; Wed, 6 Sep 2000 20:51:16 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Date: Wed, 6 Sep 2000 20:47:05 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000905185103.6189.qmail@web514.mail.yahoo.com> <20000906222815.C3112@eldritchpress.org> In-Reply-To: <20000906222815.C3112@eldritchpress.org> MIME-Version: 1.0 Message-Id: <00090620511200.12383@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, 06 Sep 2000, Eric Eldred wrote: > How did Kaplan jump from finding a fact, that DeCSS was > "functional" code, to deciding that its "function" was to > circumvent--when plaintiffs stipulated they had no facts to > show that it was actually used in circumvention? It can't be > because all code is functional or not--how can one decide such > a thing a priori? As in O'Brien, the only way is to determine, > carefully, and case by case, the facts in the particular > situation. And that rules out a decision based just on judging > the technology as removed from human motives or responsibility > or authority. There is something decidedly Hofstadter-ish about this decision. Kaplan appears to be arguing that if a particular text is 'functional', apparently meaning that it can potentially instruct some agent to perform real-world actions, it is no longer subject to strict scrutiny. The Goedel/Escher/Bach aspect is that the Court's Ruling is a text which can (and in fact does) instruct agents to perform certain real- world actions. Rather more interesting, the same applies to all Acts of Congress and the Constitution itself. Which, per Kaplan, are not protected by strict scrutiny ... -- | 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 Sep 6 23:56:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26216 for dvd-discuss-outgoing; Wed, 6 Sep 2000 23:56:34 -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 XAA26213 for ; Wed, 6 Sep 2000 23:56:33 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id UAA08600 for ; Wed, 6 Sep 2000 20:57:33 -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 smtpdAAAOyaqYq; Wed Sep 6 20:57:26 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 UAA12308 for ; Wed, 6 Sep 2000 20:57:11 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Wed, 6 Sep 2000 20:55:10 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <39B66FD1.79C47C77@uic.edu> In-Reply-To: <39B66FD1.79C47C77@uic.edu> MIME-Version: 1.0 Message-Id: <00090620570201.12383@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, 06 Sep 2000, John Schulien wrote: > > Typically illogical MPAA response: of course CSS can prevent access: > if > > you copy a DVD to a DVD-R the licensed player won't play the disc. > > Reply: If you copy a DVD to a DVD-R, you are making an incomplete > copy, because DVD-Rs don't have a writable key area. If you have the > equipment to make a complete copy, then the licensed player will play > the > disc. Claiming that something is 'copy control' because the destination medium doesn't have the capacity to hold the entire body of the material is a real stretch. It's like saying that CDs are copy protected because one won't fit on a 360K floppy disk. -- | 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 Sep 7 00:12:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26348 for dvd-discuss-outgoing; Thu, 7 Sep 2000 00:12:53 -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 AAA26344 for ; Thu, 7 Sep 2000 00:12:51 -0400 Received: from 208-58-193-218.s472.tnt9.lnhva.md.dialup.rcn.com ([208.58.193.218]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13Wt4E-0003N2-00 for dvd-discuss@eon.law.harvard.edu; Thu, 07 Sep 2000 00:13:39 -0400 Date: Thu, 07 Sep 2000 00:12:47 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control 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, 6 Sep 2000, D. C. Sessions wrote: > Date: Wed, 6 Sep 2000 20:55:10 -0700 > To: dvd-discuss@eon.law.harvard.edu > From: "D. C. Sessions" > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] CSS vs. Access Control > > On Wed, 06 Sep 2000, John Schulien wrote: > > > Typically illogical MPAA response: of course CSS can prevent access: > > if > > > you copy a DVD to a DVD-R the licensed player won't play the disc. > > > > Reply: If you copy a DVD to a DVD-R, you are making an incomplete > > copy, because DVD-Rs don't have a writable key area. If you have the > > equipment to make a complete copy, then the licensed player will play > > the > > disc. > > Claiming that something is 'copy control' because the destination medium > doesn't have the capacity to hold the entire body of the material is a > real > stretch. It's like saying that CDs are copy protected because one won't > fit on a 360K floppy disk. > It's not a capacity problem. The DVD player looks for keys in a specific sector or sectors. If that sector cannot hold any information, a DVD player cannot decode the disc, because it cannot find a keyblock. It's sort of like linux's use of lilo. Lilo, the Linux boot loader writes to specific areas on the hard disk (the boot blocks). If those blocks are not written correctly, Lilo cannot start Linux. (Yes, there are recovery procedures for Linux, but DVD players aren't supposed to implement an error recovery algorithm) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 00:56:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26881 for dvd-discuss-outgoing; Thu, 7 Sep 2000 00:56:52 -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 AAA26878 for ; Thu, 7 Sep 2000 00:56:51 -0400 Received: (from daemon@localhost) by smtp04.primenet.com (8.9.3/8.9.3) id VAA09593 for ; Wed, 6 Sep 2000 21:55:30 -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 smtpdAAAkwaqGs; Wed Sep 6 21:55:19 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 VAA12549 for ; Wed, 6 Sep 2000 21:57:24 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Wed, 6 Sep 2000 21:20:48 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00090621231700.12443@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, 06 Sep 2000, Jeremy Erwin wrote: > On Wed, 6 Sep 2000, D. C. Sessions wrote: > > Date: Wed, 6 Sep 2000 20:55:10 -0700 > > To: dvd-discuss@eon.law.harvard.edu > > From: "D. C. Sessions" > > Reply-To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] CSS vs. Access Control > > > > On Wed, 06 Sep 2000, John Schulien wrote: > > > > Typically illogical MPAA response: of course CSS can prevent access: > > > if > > > > you copy a DVD to a DVD-R the licensed player won't play the disc. > > > > > > Reply: If you copy a DVD to a DVD-R, you are making an incomplete > > > copy, because DVD-Rs don't have a writable key area. If you have the > > > equipment to make a complete copy, then the licensed player will play > > > the > > > disc. > > > > Claiming that something is 'copy control' because the destination medium > > doesn't have the capacity to hold the entire body of the material is a > > real > > stretch. It's like saying that CDs are copy protected because one won't > > fit on a 360K floppy disk. > > > > It's not a capacity problem. The DVD player looks for keys in a specific > sector or sectors. If that sector cannot hold any information, a DVD player > cannot decode the disc, because it cannot find a keyblock. > > It's sort of like linux's use of lilo. Lilo, the Linux boot loader writes > to specific areas on the hard disk (the boot blocks). If those blocks are > not written correctly, Lilo cannot start Linux. (Yes, there are recovery > procedures for Linux, but DVD players aren't supposed to implement an error > recovery algorithm) On the contrary, it is a capacity problem, although a much smaller problem than with the 360K floppy. If the destination media don't have an appropriate place to store the content, then it's a capacity problem. The fact that the problem is designed in is immaterial. DVDCCA could just as readily have placed an RC5 hash of the content in some otherwise unavailable location and had licensed players do a checksum. Same result. -- | 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 Sep 7 01:18:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27248 for dvd-discuss-outgoing; Thu, 7 Sep 2000 01:18:24 -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 BAA27245 for ; Thu, 7 Sep 2000 01:18:22 -0400 Received: from swbell.net ([64.216.211.23]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0I00B3Y416KZ@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 00:17:31 -0500 (CDT) Date: Thu, 07 Sep 2000 00:09:16 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B722FC.DDCF6EBF@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > tjolley@swbell.net writes: > > Actually, I think it is more disc format control which leads to copy > > control. I think the problem with trying to copy a DVD to a DVD-R is > > that there is a critical sector that is "write protected" on the DVD-R > > media. So the copy control is not with the original DVD or CSS it is > > the DVD-R media. > > On this point, two more things to consider: > > 1) CSS, by itself, is not a system which produces complete "ripped" > DVDs. It is, at best, a component of such a system --- and also > a component of other, perfectly legitimate systems (e.g., Matt's > DVD player). So, "only limited commercial purpose other than to > circumvent" strikes me as very, very dubious, even if we grant > that CSS is acting as a copy-control technology in this manner > (which is still not entirely clear). > > 2) I don't recall seeing any mention of this mechanism at all in the > trial transcripts, though I don't know what all is in the exhibits. > Is it on the trial record? If not, then it's irrelevant for > appeals; the only thing that matters is whether it's an *access* > control. > > (Contrast to region coding, which *is* at least briefly mentioned > on the trial record --- IIRC, Kaplan shut down all reference to it > when the MPAA's witnesses were being questioned, but he *did* let > Johansen talk about it). > > rst In Robert's previous postings he asks the question is CSS access control. I don't think it is. This brings up the question of what is CSS. I think it's only purpose and function is for copy protection/control. Just as DOS looks for the file allocation table (FAT) at a specific location on a disk drive to make sense (unscramble the content) of the information contained on a disk drive, CSS looks at a specific sector for information that unscrambles the content on the DVD. And just like DOS is useless in trying to make sense out of a Unix filesystem, CSS is useless in making sense out of any other filesystem than a CSSed DVD. In Ms. King's testimony about CSS she doesn't refer to CSS as access control at all. She refers to it as protection as in copy protection. On page 417 of trial transcrit 5 Q. Is there current harm to the plaintiffs represented by the 6 dissemination in the DeCSS hack? 7 MR. GARBUS: I object to the form. 8 THE COURT: What's the objection to the form? 9 MR. GARBUS: No foundation for it. Could we hear the 10 question again? 11 THE COURT: Read the question please, Amy. 12 (Record read) 13 MR. GARBUS: I object to the question. 14 THE COURT: Overruled. 15 The witness is the head of business affairs for the 16 studio. 17 A. First of all, we lost what to us was our first line of 18 defense in protecting our copyrights in the digital domain. 19 The CSS encryption system was to provide protection for our 20 works in DVD. As I said before, the reason that the studios, 21 including Warner Brothers, were willing to distribute their 22 product in the digital domain in this new format was because 23 they had this protection. This is followed repeatedly by more use of the word protection. And if there is any doubt about if she means copy protection, here is her last answer to Mr. Gold. On page 423. 22 In the movie industry, we are in a different -- we 23 are in a different situation and we know that our movies are 24 protected by copyright in that there is no right to make a 25 copy of a movie. There just isn't. And we want to protect 1 our movies now and into the future. So, CSS is copy protection not access control. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 01:18:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27240 for dvd-discuss-outgoing; Thu, 7 Sep 2000 01:18:02 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27235 for ; Thu, 7 Sep 2000 01:17:50 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA04213 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 01:19:01 -0400 Date: Thu, 7 Sep 2000 01:18:56 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] code as speech Message-ID: <20000907011856.B4106@eldritchpress.org> References: <20000905185103.6189.qmail@web514.mail.yahoo.com> <20000906222815.C3112@eldritchpress.org> <20000906215006.A1089@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000906215006.A1089@localhost>; from fenimore@roadrunner.com on Wed, Sep 06, 2000 at 09:50:07PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 06, 2000 at 09:50:07PM -0600, Paul Fenimore wrote: > On Wed, Sep 06, 2000 at 10:28:16PM -0400, Eric Eldred wrote: > > [ ... A discussion of O'Brien snipped ... ] > > > How did Kaplan jump from finding a fact, that DeCSS was > > "functional" code, to deciding that its "function" was to > > circumvent--when plaintiffs stipulated they had no facts to > > show that it was actually used in circumvention? > > Kaplan leap to this on January 21st, 2000 during the first hearing. > So far as I know, he has never reconsidered his first faulty > leap of faith. [...] Thanks for the reminder. Since I never comprehended this in the first place, it was easy to overlook now. So, unless I am even more confused, it appears that Kaplan is looking at various "things" here that might be "functional": a. A particular piece of software, whether source or object code, that by definition is "functional" and rates lower than speech, even if printed in a magazine such as 2600. b. Code whose "function" is intended to either descramble or decrypt, maybe in an abstract way, as for example in cryptographic research. c. An implementation of "access control," whose "function" is, not surprisingly, to control access, and which might include some form of encryption, and, perhaps surprisingly, decryption or descrambling. d. Some technology that might "function" as copy control, perhaps under authorization of the copyright holder or not, and which might employ scrambling or encryption, and the reverse. e. Code with a "function" to descramble or decrypt (c) or (d) and thus is "functionally" circumvention no matter what other "function" it might have, and no matter where the authority. f. Some text on a web page that may or may not have the "function" of linking to or "calling up" some software code that may or may not have the "function" of being used automagically to circumvent. g. Some speech act that has a "functional" component, as the court considered in O'Brien's burning a draft card and obstructing the good work of the U.S. government. h. A constitutionally legitimate "function" of maintaining an orderly system of imposing involuntary servitude on U.S. males, as in O'Brien. i. Some piece of technology that is intended to have the "function" of maintaining the business model of Hollywood movie studios. j. An song written in Australian which has the "function" to entertain sophisticated listeners, but which actually has the hidden "function" of circumventing U.S. copyright law. ...more "functions"? I remember that members of Congress appear to have been confused by the term "circumvention" because it seems that at least some of them considered "circumvention" to be perfectly legal--after all, CSS works by "descrambling" or "decrypting". Here there seems to be some confusion about "function". How can we tell the difference between the different "functions" here except go outside, seek a source of authority and of intent, from a human, and not technology? But certainly not mechanically, by confusing the various "functions" of things just because they happen to employ the same word. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 01:38:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27479 for dvd-discuss-outgoing; Thu, 7 Sep 2000 01:38:20 -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 BAA27475 for ; Thu, 7 Sep 2000 01:38:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA04249 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 01:39:13 -0400 Date: Thu, 7 Sep 2000 01:39:08 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000907013908.C4106@eldritchpress.org> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39B722FC.DDCF6EBF@swbell.net>; from tjolley@swbell.net on Thu, Sep 07, 2000 at 12:09:16AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 12:09:16AM -0500, Jolley wrote: > [this is good stuff here...] > On page 423. > 24 ... there is no right to make a > 25 copy of a movie. There just isn't. And we want to protect > 1 our movies now and into the future. > > So, CSS is copy protection not access control. Or it's not even copy protection, but an attempt to prevent the user from "unauthorized" use, such as for example making an archival copy--but it's the DMCA law, not so much the technology, that is to perform this protection--once the technology is set up to "scramble" or "encrypt" or whatever--whether or not it really does have this "effective" use-- then it falls under this category. The syntax of "copy control" or "access control" is just legal here and may or may not have a technologic equivalent in fact? One has to wonder if "copy control" and "access control" can be distinguished anyway in this law. It is easier to see how the law might be constitutional if it referred only to copy control. Access control appears to be some strange new right granted by Congress. Once these odd rights are in the law then MPAA thinks it can "protect" its treasures and business model. It seems they never envisaged this system breaking down and leaving them "unprotected," or that they would have to explain how the system was supposed to operate in reality. I think Robert and others have demonstrated that CSS is not access control. The question then is what can we do with that? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 01:47:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27601 for dvd-discuss-outgoing; Thu, 7 Sep 2000 01:47:00 -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 BAA27598 for ; Thu, 7 Sep 2000 01:46:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 07:36:03 +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, 7 Sep 2000 03:01:54 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 03:01:54 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering Message-ID: <20000907030154.B12454@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 Michael.A.Rolenz@aero.org wrote: > Well the crux of that argument is that as a CONSUMER, I am merely buying a > license to play my DVDs on licensed players. I don't really own it like I > own my car, my CD player or even my underwear....I'm just buying a license > in a place that sells personal property. So..they violated the license > agreement. [If they did not then the people who did are liable and not the > people who did the RE] that depends on: a) whether the license was accepted or not (this is a vague area, but what exactly is my state of ownership if I buy a software, but don't click on the "agree" button in the installer?) b) whether the license is valid (it might have been installed by a minor, unable to get into such a contract, or it might be void in the country of question) c) whether the law voids the relevant passages of the license. this is the strongest argument, I believe, because the norwegian law DOES do this. (it allows RE and explicitly says that this right can not be taken away by a contract) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 02:29:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA27807 for dvd-discuss-outgoing; Thu, 7 Sep 2000 02:29:25 -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 CAA27804 for ; Thu, 7 Sep 2000 02:29:24 -0400 Received: from swbell.net ([64.216.211.23]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0I00GAY79MLV@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 01:27:22 -0500 (CDT) Date: Thu, 07 Sep 2000 01:19:08 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B7335C.AA76D458@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > > On Thu, Sep 07, 2000 at 12:09:16AM -0500, Jolley wrote: > > [this is good stuff here...] > > > On page 423. > > 24 ... there is no right to make a > > 25 copy of a movie. There just isn't. And we want to protect > > 1 our movies now and into the future. > > > > So, CSS is copy protection not access control. > > Or it's not even copy protection, but an attempt to > prevent the user from "unauthorized" use, such as > for example making an archival copy--but it's the > DMCA law, not so much the technology, that is to > perform this protection--once the technology is set > up to "scramble" or "encrypt" or whatever--whether > or not it really does have this "effective" use-- > then it falls under this category. The syntax of > "copy control" or "access control" is just legal > here and may or may not have a technologic > equivalent in fact? > > One has to wonder if "copy control" and "access > control" can be distinguished anyway in this law. > It is easier to see how the law might be constitutional > if it referred only to copy control. Access control > appears to be some strange new right granted by > Congress. Once these odd rights are in the law then > MPAA thinks it can "protect" its treasures and > business model. It seems they never envisaged this > system breaking down and leaving them "unprotected," > or that they would have to explain how the system > was supposed to operate in reality. > > I think Robert and others have demonstrated that > CSS is not access control. The question then is what > can we do with that? I think of access control where I can be denied access even though I have valid media (I didn't pay my bill). Copy control is copying the valid media (where access is not a problem) to another format and the copy will not work. I think that if we can say that CSS is not access control then their argument starts to fall apart. And, this is how it falls apart: 1. 1201(a)(3)(B) starts off by defining how a technological measure can "effectively control access to a work." 2. If CSS (the technological measure) does not control access (it is only copy protection) to a work then CSS does not "effectively control access to a work." 3. 1201(a)(2) is no longer a problem because the technological measure does not effectively control access to a work. Even though DeCSS may do any of the things in (a)(3)(A) (such as decrypt an encrypted work) without the authority of the copyright owner. Unless I'm not reading "...circumventing a technological measure that effectively controls access to a work ..." correctly. 1201(b) is worded a little differently. Anyone else want to take a crack at that one? Or, make comments if I missed something in how their argument falls apart. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 02:49:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA28094 for dvd-discuss-outgoing; Thu, 7 Sep 2000 02:49:03 -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 CAA28091 for ; Thu, 7 Sep 2000 02:49:02 -0400 Received: from travel-net.com (trj114.travel-net.com [207.176.160.114]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id CAA26968 for ; Thu, 7 Sep 2000 02:50:31 -0400 Message-ID: <39B73A5C.34A9D134@travel-net.com> Date: Thu, 07 Sep 2000 02:49:00 -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] Trade Secrets cannot bar Reverse Engineering References: <20000906083414.E9483@lemuria.org> <20000906231101.E3112@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 A slightly easier URL for that same section is: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3426-3426.11 FYI, california codes, the constitution and statutes can be found from http://www.leginfo.ca.gov/calaw.html with nice search capabilities built in. Eric Eldred wrote: > On Wed, Sep 06, 2000 at 09:40:52AM +0200, Frank Andrew Stevenson wrote: > > > > It is even weaker than that, under the DVD CCA only have to show that it > > was found by 'improper means' under Californian law. > > Yes, but the California Civil Code Section 3426.1 at (please unwrap): > http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/ca_unif_trade_sec_act_misap_defin.html > (This is the implementation in California of the Uniform Trade Secrets Act.) > says quite specifically, > "3426.1. As used in this title, unless the context requires > otherwise: > (a) "Improper means" includes theft, bribery, misrepresentation, > breach or inducement of a breach of a duty to maintain secrecy, or > espionage through electronic or other means. Reverse engineering or > independent derivation alone shall not be considered improper means. " > > > > > frank > > > > On Wed, 6 Sep 2000, Tom Vogt wrote: > > > Bryan Taylor wrote: > > > > Anyway, the Supreme Court says trade secret law cannot forbid > > > > independent creation or reverse engineering. A patent's requirement of > > > > disclosure is quated to the "quid pro quo of the right to exclude". The > > > > case found no preemption of trade secret law by Federal patent law > > > > because of the narrowness of trade secret law. > > > > > > the DVD CCA's point is that the RE itself may have been legal, but was in > > > violation of the license of the player used. > > And Bryan points out that federal law overrules any contract or license > that says so. I would add that California Trade Secrets law does too. > So where is some other law that bars RE? > > The remaining question is if "alone" is sufficient alone here. On the other > hand, the other "improper means" described above don't look very > promising for the DVD-CCA either. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 02:57:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA28232 for dvd-discuss-outgoing; Thu, 7 Sep 2000 02:57:43 -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 CAA28229 for ; Thu, 7 Sep 2000 02:57:41 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13Wvdj-0006QE-00 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 08:58:27 +0200 Date: Thu, 7 Sep 2000 08:58:27 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Proof of purchase - was Trade Secrets cannot bar RE In-Reply-To: <200009070111.VAA00019@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 Perhaps it would be more fruitful to waste time on the 'proof of purchase' cupon found on the inside of some DVDs. Do they signify a sale, or are they there so you can get replacement media, when it wears out - perhaps signifying a purchased right to view on approved devices? frank On Wed, 6 Sep 2000, Robert S. Thau wrote: > (We wasted a fair amount of time early on wondering if the "for home > use only" legend on some DVD cartons was meant to constitute a license > agreement, as opposed to simply asserting the copyright holder's right > to control public performance; but Marks said that it wasn't in pretty > plain English). > > rst 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 Sep 7 05:07:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA29232 for dvd-discuss-outgoing; Thu, 7 Sep 2000 05:07:02 -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 FAA29226 for ; Thu, 7 Sep 2000 05:07:00 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 11:00:55 +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; Thu, 7 Sep 2000 10:50:15 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 10:50:15 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD-CCA, breaking the camels back Message-ID: <20000907105015.B13331@lemuria.org> References: <20000907025210.A12385@lemuria.org> <39B6ECC3.BE7327AC@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B6ECC3.BE7327AC@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: > > we have, at one time, had far more than 500 mirrors in the various lists. I > > think the number was roughly twice that in unique sites. > > Then there are the 'private' copies, and descramble.mp3; which > I've been able to find on Gnutella... css_auth.c was one of the first files on Freenet. :) > There should be a few tens of thousands John Does out there by now. possibly more. my site alone has seen over 3000 downloads of DeCSS in ONE day (the day after the ruling in NY). taking all the mirrors into account, I'd say that almost everyone who knows what a DVD is must by now have a local copy of DeCSS. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 05:07:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA29225 for dvd-discuss-outgoing; Thu, 7 Sep 2000 05:07:00 -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 FAA29221 for ; Thu, 7 Sep 2000 05:06:59 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 11:00:55 +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; Thu, 7 Sep 2000 10:48:22 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 10:48:22 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000907104822.A13331@lemuria.org> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B722FC.DDCF6EBF@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: > In Robert's previous postings he asks the question is CSS access > control. I don't think it is. This brings up the question of what > is CSS. I think it's only purpose and function is for copy > protection/control. not even. the rampant DVD piracy problem in china should be enough proof that CSS doesn't provide any mentionable level of copy protection. CSS is a for-show copy/access/whatever control system. it's purpose is twofold: a) be just technical enough to make the whole thing fall under the DMCA. it was engineered to to bottom by lawyers, not technicians. hell, the CSS "procedures" .pdf files that john grabbed from the DVD CCA webpage are LARGER than DeCSS. b) provide a bogus "protection", mainly for show effects. as several studio people said: they required some kind of protection before they would release their stuff on DVD. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 05:57:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA29559 for dvd-discuss-outgoing; Thu, 7 Sep 2000 05:57:14 -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 FAA29556 for ; Thu, 7 Sep 2000 05:57:13 -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 FAA12124 for ; Thu, 7 Sep 2000 05:58:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id FAA02664; Thu, 7 Sep 2000 05:58:01 -0400 (EDT) Date: Thu, 7 Sep 2000 05:58:01 -0400 (EDT) Message-Id: <200009070958.FAA02664@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <20000907013908.C4106@eldritchpress.org> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > On Thu, Sep 07, 2000 at 12:09:16AM -0500, Jolley wrote: > > [this is good stuff here...] > > > On page 423. > > 24 ... there is no right to make a > > 25 copy of a movie. There just isn't. And we want to protect > > 1 our movies now and into the future. > > > > So, CSS is copy protection not access control. > > Or it's not even copy protection, but an attempt to > prevent the user from "unauthorized" use ... By George, I think he's got it! Remember Dean Marks' thorough, detailed explanation of the process that led to CSS --- it's at http://eon.law.harvard.edu/archive/dvd-discuss/msg07804.html Marks is quite explicit that CSS is intended to function, itself, *only as a contractual hook for other mechanisms*, including, say, Macrovision and the lack of digital output(!) for copy control. (He cites both explicitly, at the end of the quoted text). Any "protection" it provides on its own --- either access control or copy control --- is strictly incidental. I'd like to remind folks again that Marks' entire discussion of CSS is well worth reading; it's loaded with great stuff. Marks is towards the end of http://216.167.120.50/dmca-may-19.html (the full transcript of the day's testimony). > One has to wonder if "copy control" and "access > control" can be distinguished anyway in this law. Access control is 1201(a); copy control is 1201(b). The applicability of either to CSS per se is somewhat dubious. > It is easier to see how the law might be constitutional > if it referred only to copy control. Access control > appears to be some strange new right granted by > Congress. And is recognized as such in the legislative history --- but it is explained there as the right to restrict access by unauthorized *persons*, not access by means of an unauthorized device. Detailed citations (from the report used by Kaplan as his authority on this section of the law!) in http://eon.law.harvard.edu/archive/dvd-discuss/msg07722.html for those who missed it the first time around. > I think Robert and others have demonstrated that > CSS is not access control. The question then is what > can we do with that? We can argue that Kaplan's ruling against Corley, based entirely on the notion that "CSS effectively controls access to a work", ought to be tossed. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 08:16:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30846 for dvd-discuss-outgoing; Thu, 7 Sep 2000 08:16:09 -0400 Received: from mason2.gmu.edu (mason2.gmu.edu [129.174.1.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA30843 for ; Thu, 7 Sep 2000 08:16:09 -0400 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id IAA19453 for ; Thu, 7 Sep 2000 08:16:57 -0400 (EDT) Date: Thu, 7 Sep 2000 08:16:57 -0400 (EDT) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Proof of purchase - was Trade Secrets cannot bar RE 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, 7 Sep 2000, Frank Andrew Stevenson wrote: > > Perhaps it would be more fruitful to waste time on the 'proof of purchase' > cupon found on the inside of some DVDs. Do they signify a sale, or are > they there so you can get replacement media, when it wears out - > perhaps signifying a purchased right to view on approved devices? I think the "proof of purchase" has a far more prosaic use-- special discounts. My copy of the Matrix had some sort of "get 5 bucks off the soundtrack" offer attached. Warner Bros. also had some sort of "buy 5 movies, get the sixth one free" discount program. But I'm naive and unexperienced. Perhaps there is some sinister motive I'm not aware of. (Besides encouraging higher consumption rates and building a mailing list.) Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 08:41:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA31487 for dvd-discuss-outgoing; Thu, 7 Sep 2000 08:41:39 -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 IAA31484 for ; Thu, 7 Sep 2000 08:41:39 -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 IAA24555 for ; Thu, 7 Sep 2000 08:42:28 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA02874; Thu, 7 Sep 2000 08:42:27 -0400 (EDT) Date: Thu, 7 Sep 2000 08:42:27 -0400 (EDT) Message-Id: <200009071242.IAA02874@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <00090621231700.12443@frankenstein.lumbercartel.com> References: <00090621231700.12443@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: > On Wed, 06 Sep 2000, Jeremy Erwin wrote: > > It's not a capacity problem. The DVD player looks for keys in a > > specific sector or sectors. If that sector cannot hold any > > information, a DVD player cannot decode the disc, because it > > cannot find a keyblock. > > On the contrary, it is a capacity problem, although a much smaller > problem than with the 360K floppy. If the destination media don't > have an appropriate place to store the content, then it's a > capacity problem. The fact that the problem is designed in is > immaterial. This is a very interesting argument, but I'm not sure it matters at this point, for appeals. The MPAA's witnesses were fairly explicit at trial that CSS is intended to prevent copying *over the internet*, though, IIRC, some of their witnesses also mentioned CD-RWs. In both cases, CSS itself actually does nothing to restrain the copying at issue. I'm still curious about whether the DVD-RW key-sector business was introduced at trial --- if it was, they can argue it, though it'll be a peculiar argument (that the crucial copy-control function of CSS is something that they barely saw fit to mention at the original trial). If not, IIRC, they can't even mention it --- they can't introduce new facts on appeal. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 08:46:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA31635 for dvd-discuss-outgoing; Thu, 7 Sep 2000 08:46:41 -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 IAA31632 for ; Thu, 7 Sep 2000 08:46:40 -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 IAA02285 for ; Thu, 7 Sep 2000 08:47:28 -0400 (EDT) Message-ID: <39B78E61.AFDB75BA@mediaone.net> Date: Thu, 07 Sep 2000 08:47:29 -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] DVD-CCA, breaking the camels back References: <20000907025210.A12385@lemuria.org> <39B6ECC3.BE7327AC@mediaone.net> <20000907105015.B13331@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: > > > we have, at one time, had far more than 500 mirrors in the various lists. I > > > think the number was roughly twice that in unique sites. > > > > Then there are the 'private' copies, and descramble.mp3; which > > I've been able to find on Gnutella... > > css_auth.c was one of the first files on Freenet. :) How long before Freenet becomes functional enough for general use? In Freenet we have a real example of effective access control. ;) > > There should be a few tens of thousands John Does out there by now. > > possibly more. my site alone has seen over 3000 downloads of DeCSS in ONE day > (the day after the ruling in NY). taking all the mirrors into account, I'd > say that almost everyone who knows what a DVD is must by now have a local > copy of DeCSS. I was being deliberately conservative. > -- > "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 Thu Sep 7 08:48:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA31677 for dvd-discuss-outgoing; Thu, 7 Sep 2000 08:48:15 -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 IAA31674 for ; Thu, 7 Sep 2000 08:48:15 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id IAA25071 for ; Thu, 7 Sep 2000 08:49:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA02956; Thu, 7 Sep 2000 08:49:03 -0400 (EDT) Date: Thu, 7 Sep 2000 08:49:03 -0400 (EDT) Message-Id: <200009071249.IAA02956@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Proof of purchase - was Trade Secrets cannot bar RE In-Reply-To: References: <200009070111.VAA00019@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Frank Andrew Stevenson writes: > Perhaps it would be more fruitful to waste time on the 'proof of purchase' > cupon found on the inside of some DVDs. Do they signify a sale, or are > they there so you can get replacement media, when it wears out - > perhaps signifying a purchased right to view on approved devices? Well, "waste time" was harsh, except perhaps in retrospect --- coming in to the case cold, looking for a license agreement on DVDs seemed like a good idea at the time (to all concerned, including me). But at this point, it seems to me that they've effectively stipulated that there is no such license (by not contesting the matter when Kaplan said it was "perfectly obvious" that DVD purchasers are not bound by any contract with the studios) so I'm not sure there's any further point in looking for one. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 10:33:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA32712 for dvd-discuss-outgoing; Thu, 7 Sep 2000 10:33:58 -0400 Received: from hotmail.com (f150.law3.hotmail.com [209.185.241.150]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA32707 for ; Thu, 7 Sep 2000 10:33:55 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 7 Sep 2000 07:34:13 -0700 Received: from 192.38.120.171 by lw3fd.law3.hotmail.msn.com with HTTP; Thu, 07 Sep 2000 14:34:13 GMT X-Originating-IP: [192.38.120.171] From: "Claus Adamsen" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Date: Thu, 07 Sep 2000 16:34:13 CEST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 07 Sep 2000 14:34:13.0454 (UTC) FILETIME=[B164A6E0:01C018D8] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 7 Sep 2000 05:58:01 -0400 (EDT), Robert S. Thau wrote: >By George, I think he's got it! Remember Dean Marks' thorough, >detailed explanation of the process that led to CSS --- it's at > > http://eon.law.harvard.edu/archive/dvd-discuss/msg07804.html > >Marks is quite explicit that CSS is intended to function, itself, >*only as a contractual hook for other mechanisms*, including, say, >Macrovision and the lack of digital output(!) for copy control. >(He cites both explicitly, at the end of the quoted text). > >Any "protection" it provides on its own --- either access control or >copy control --- is strictly incidental. > >I'd like to remind folks again that Marks' entire discussion of CSS is >well worth reading; it's loaded with great stuff. Marks is towards >the end of http://216.167.120.50/dmca-may-19.html (the full transcript >of the day's testimony). >We can argue that Kaplan's ruling against Corley, based entirely on the >notion that "CSS effectively controls access to a work", ought to be >tossed. For more on Marks' views, see Marks & Turnbull, "Technological Protection Measures: The Intersection of Technology, Law and Commercial Licenses" at http://www.wipo.int/eng/meetings/1999/wct_wppt/pdf/imp99_3.pdf The article contains a thorough description of the movie industry's purported design requirements for CSS, including the relationship with copy control and region coding. Since the authors are industry insiders, they actually believe that the DMCA "achieves the appropriate balance"! Some choice quotes: "Technologies that control the copying of content, such as copy control flags… the successful operation of such technologies generally depends on a response from the playback or record device" "Encryption of content and decryption of content requires a licence of the relevant encryption technology. This licence will include obligations concerning what copy protection rules must be followed (e.g. no copies allowed, one copy allowed, etc.) as a condition for decrypting the content and making it accessible to the user." "The CSS system developed by MEI and Toshiba is proprietary; these companies engineered the technology and hold certain intellectual property rights with respect to it…Because a licence is necessary to use the CSS technology, this licence can impose obligations as to how the technology is used and how content should be treated once it is decrypted." On region coding: " Again, the CPTWG lacked any means of implementing or requiring the implementation of this approach. The requirements for regional playback control was therefore implemented by the CSS licence. Equipment manufacturers that take a licence so that their products are able to play DVD discs encrypted with CSS are obligated by the licence to provide for regional playback control in their products." Claus Adamsen claus_adamsen@hotmail.com _________________________________________________________________________ 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 Thu Sep 7 11:11:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA00778 for dvd-discuss-outgoing; Thu, 7 Sep 2000 11:11:11 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA00775 for ; Thu, 7 Sep 2000 11:11:04 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 08:11:09 -0700 Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 08:11:07 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 08:11:09 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed on both counts.....My point was that the argument is only valid if I buy the PBS that things are really only licensed and not sold as personal property[and I should have pointed that out so we don't continue discussing this point]. The only persons who seem to buy that PBS are the plaintiffs and the MPAA ...and most of the software industy who contend that they are merely licensing the software you buy. As you pointed out in your DMCA comments [BTW excellent], the courts are striking shrinkwrap down along with these vague licensing statements but they are still being sold and the software industry is working to make them "the law of the land" with their UNITC law they are pushing for. T Bryan Taylor To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Trade Secrets cannot arvard.edu bar Reverse Engineering 09/06/00 07:46 PM Please respond to dvd-discuss --- "Robert S. Thau" wrote: > Not to bore people, but once again, we've seen no one contend that > you're bound to a license agreement when you buy a DVD. There are > license agreements on software *players*, which is one of the issues > in the California case, but that's different. Marks freely admitted > that there's no license associated with a DVD in the Stanford > hearing, and Kaplan said it was "perfectly obvious" in court. I'd like to chime in that the idea that "our products are not sold, they are only licenced" is pretty well refuted by Nimmer in his Metamorphosis paper and Judge Greene in Novell v. Network Trade Center. Nimmer traces the idea's origin to Microsoft v Harmony and then back to some legal writings written by internal counsel for, surprise, Microsoft. I put a little bit about this in my reply comment. __________________________________________________ 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 Sep 7 11:18:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01004 for dvd-discuss-outgoing; Thu, 7 Sep 2000 11:18:37 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA01001 for ; Thu, 7 Sep 2000 11:18:30 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 08:18:37 -0700 Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 08:18:35 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 08:18:36 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed. I wasn't arguing that it was a valid concept only that this is the "camel one must swallow" to accept their argument. WRT to c), no contract is enforcable if it goes against the public good and law (e.g., gambling, discriminatory covenants)...one fruitful line of argumentation on this matter would be how these matters (e.g. CSS, DMCA) go against the public good. Tom Vogt Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] Trade Secrets cannot bar Reverse Engineering 09/06/00 10:49 PM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > Well the crux of that argument is that as a CONSUMER, I am merely buying a > license to play my DVDs on licensed players. I don't really own it like I > own my car, my CD player or even my underwear....I'm just buying a license > in a place that sells personal property. So..they violated the license > agreement. [If they did not then the people who did are liable and not the > people who did the RE] that depends on: a) whether the license was accepted or not (this is a vague area, but what exactly is my state of ownership if I buy a software, but don't click on the "agree" button in the installer?) b) whether the license is valid (it might have been installed by a minor, unable to get into such a contract, or it might be void in the country of question) c) whether the law voids the relevant passages of the license. this is the strongest argument, I believe, because the norwegian law DOES do this. (it allows RE and explicitly says that this right can not be taken away by a contract) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 11:20:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01286 for dvd-discuss-outgoing; Thu, 7 Sep 2000 11:20:34 -0400 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA01282 for ; Thu, 7 Sep 2000 11:20:33 -0400 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id LAA05135 for ; Thu, 7 Sep 2000 11:21:21 -0400 (EDT) Message-Id: <4.2.2.20000907101400.01774b60@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 07 Sep 2000 11:21:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] summary of CSS evils? In-Reply-To: <20000905083127.E5961@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 08:31 AM 9/5/00 +0200, Tom Vogt wrote: >for a very serious thing I'm currently working on (no details yet, but >you'll be among the first to know), it would help me a lot if you could >help me sum up in short all the evils of MPAA/CSS we're fighting, and if >possible with quotable references (such as the great quote I got for "CSS >exists for the purpose of forcing this whole thing unto the LEGAL >battlefield"). For people who aren't familiar with the issues, I like to summarize the problem as fine-grained controls over media use. Right now, publishers are forcing buyers to watch a DVD only on a particular platform, without skipping advertising trailers, in a limited "region," without the right to make fair use excerpts for review or criticism, but the same combination of law and technology will soon be used to prevent you from lending an ebook to a friend, to prevent schools from moving an electronic encyclopedia from one classroom to another, to prevent you from format-shifting music or even moving it to a new computer when you replace the old one, even to prevent reviewers from criticizing works and using excerpts in their reviews. And of course, to prohibit anyone from reading any "trusted" media within a cable's length of any open-source software. I know Time Warner's Sorkin likes to dismiss these scenarios as the product of fevered imaginations, but we've seen enough evidence from CSS, ebook trials, and SDMI proposals that we need law to prohibit such use controls -- not reliance on the good faith and customer-friendliness of publishers. Otherwise, we'll be stuck with not just pay-per-use, but fair (and non-copyright) uses unavailable *even for pay.* --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 Sep 7 11:29:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01520 for dvd-discuss-outgoing; Thu, 7 Sep 2000 11:29:38 -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 LAA01517 for ; Thu, 7 Sep 2000 11:29:36 -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 e87FTlX07448 for ; Thu, 7 Sep 2000 11:29:48 -0400 (EDT) Message-ID: <39B7B480.C4584064@mindspring.com> Date: Thu, 07 Sep 2000 11:30:08 -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] Relevance of Previous Comments 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 After reading all of the reply comments, I was struck by the number of times that relevance was cited as a reason to disregard the comments of others. "Are there any additional issues that should be considered? If so, what are they and what are your views on them?" was in the list of questions for this proceeding. mickeym ================================================================== >From Time Warner: (on prevention of fair use) Quite apart from the irrelevance of that contention to this inquiry, it is without basis. (on player control) Although it is not clear that this assertion has any relevance to the issue at hand, it might be well to say a few words about it. (on licensing terms) I am not aware of any such restrictions imposed by Time Warner but, be that as it may, we are once again faced with an assertion that is irrelevant to the issue in this inquiry. >From AFMA: (on previous comments) The numerical majority of submissions concentrate their fire on the anti-circumvention and copyright management provisions contained in chapter 12 of Title 17, as added by the Digital Millennium Copyright Act (DMCA), and make only passing reference -- or none at all – to section 109. >From ASCAP: (on previous comments) Numerous comments, however, directly or indirectly reach beyond sections 109 and 117 to other sections of the copyright law that are not presently under consideration. Such commentators are inappropriately using this proceeding as a forum to advocate legislative positions that would benefit their particular industry. (on expansion to cover internet performance) DiMA’s argument that the section 110(7) retailer exemption to the right of performance can and should be extended to online music retailer music businesses marketing and selling copyrighted music is not only inappropriate in this proceeding, but also has no merit. >From BMI: (on streaming content) Section 117 has nothing to do with the broadcasting of music and any attendant reproduction rights issues, and there is no indication in Section 104 of the DMCA that Congress intended that this inquiry should involve music or broadcasting-related issues on the internet. (on record store exemption) DiMA innapropriately exceeded the scope of the DMCA inquiry by suggessting that Section 110(7) of the Act must be amended to "clarify" that it applies to online music "stores" (DiMA comments at 21), and the Copyright Office should not consider this proposal for a new exemption to the public performing right in this proceeding. >From SIIA: (on previous comments) The first point we would like to address relates to the scope of the section 104 study and the fact that many (if not most) of the statements made in the comments filed by those who propose expanding section 109 and/or section 117 of the Copyright Act fall outside the scope. (more) In addition, the comments submitted by the Library Associations also raise issues that fall within the scope of the section 1201(a)(1) rulemaking 4 and other issues, such as the general licensing practices of copyright owners, that have no bearing on this study. We urge the Copyright Office and NTIA to ignore those comments that do not expressly address section 109 or section 117. (on fair use) Reference to the fair use doctrine and its applicability is noticeably absent from many of the comments of those who propose expansion of sections 109 and/or 117. (on licensing) Although, as stated above, SIIA believes that these issues should not be considered in the section 104 study, because many of these comments are incorrect and misleading, we feel it necessary to clarify and correct these comments. >From Digital Commerce: (on previous comments) In this context, DCC is concerned that the comments submitted by DFC, the Libraries and Ms. Lyons as a part of this proceeding go to issues far beyond the scope of the study mandated by Congress. (more) As finally enacted, the scope of the study was limited to apply only to sections 109 and 117 of the Copyright Act. Congress neither desired nor mandated that other issues be studied. (still more) . The comments submitted by the three commentators mentioned above clearly do not fall within the scope of the section 104 study, and DCC maintains that this is not the proper venue in which to raise these comments. For this reason, DCC respectfully requests that the Copyright Office and NTIA disregard these comments. (even more) Unfortunately, comments submitted by DFC, the Libraries and Ms. Lyons in the course of this study are far outside the scope of the congressional mandate given to the Copyright Office and NTIA. For that reason alone, DCC would urge that they be ignored. >From Elsevier (on previous comments) Second, many of the comments—in particular those of the library groups— brought forth arguments simply irrelevant to the task before the Copyright Office and the NTIA. (on Library comments) Other library comments, in addition to being irrelevant, can only be politely characterized as incomplete. >From NMPA: (on digital transmission) In short, the scope or definition of “temporary RAM buffer copies” has never been at issue in a DPD proceeding, and the webcaster submission described above is certainly not germane to the current study involving section 117. (on public performance) DiMA’s attempt to draw section 110(7) into the scope of this study is one such effort; it should be rejected. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 12:27:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02402 for dvd-discuss-outgoing; Thu, 7 Sep 2000 12:27:04 -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 MAA02399 for ; Thu, 7 Sep 2000 12:27:03 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 18:23:26 +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, 7 Sep 2000 18:00:47 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 18:00:47 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000907180047.B14332@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 "Claus Adamsen" wrote: > Some choice quotes: thanks!!! this is the best thing I've found so far, and it'll greatly help me in something I'm currently preparing. if we had the publicity machine that the MPAA owns, they would've been screamed out of business by the general public by now -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 13:08:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03446 for dvd-discuss-outgoing; Thu, 7 Sep 2000 13:08:13 -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 NAA03443 for ; Thu, 7 Sep 2000 13:08:11 -0400 Message-ID: <20000907170830.16514.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 07 Sep 2000 10:08:30 PDT Date: Thu, 7 Sep 2000 10:08:30 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Relevance of Previous Comments To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > After reading all of the reply comments, I was struck by the number > of times that relevance was cited as a reason to disregard > the comments of others. "Are there any additional issues that should > be considered? If so, what are they and what are your views on them?" > was in the list of questions for this proceeding. When I put my submission in, I got an automated reply that said to address any email correspondence to jfed@loc.gov . You should forward your post to him. I set the following just a few minutes ago to jfed@loc.gov _________________________________________ I wanted to thank the Copyright Office one more time for affording the public the opportunity to provide input regarding the DMCA. I also wanted to say that I hope your office will revisit the encryption research topic soon. I believe that your conclusion was approximately "It's too early to say". The first round of comments on 1201(g) came in July of 1999, before many of us understood how the copyright industry was intending to use the law. I also hope you will commission a study on the reverse engineering section of the law. It is my feeling that much public sentiment exists that the exceptions for 1201(f) and (g) are too narrow and/or unclear to understand what you have to do to qualify for them. Finally, I was a bit annoyed by several of the 109/117 reply comments that asked you to ignore opinions that they deemed out of scope for the investigation. I would just like to point out that that question 2(a) read: "Are there any additional issues that should be considered? If so, what are they and what are your views on 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 Thu Sep 7 13:17:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03679 for dvd-discuss-outgoing; Thu, 7 Sep 2000 13:17:44 -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 NAA03676 for ; Thu, 7 Sep 2000 13:17:19 -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 MAA13245 for ; Thu, 7 Sep 2000 12:17:18 -0500 (CDT) Message-ID: <39B7CD9F.6575C2A6@uic.edu> Date: Thu, 07 Sep 2000 12:17:19 -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] The DMCA is a "plugin" to replace copyright law. Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael Rolenz writes: > BTW- "promoting new technologies" - They > really don't understand what that means. Sure they understand! My latest slashdot rant ... We all understand the concept of a plugin in software. If you want to watch a flash file, you have to download the plugin that allows you to do so. Then, when you open a flash file, the flash plugin takes over and your computer does exactly what the author of the flash file wants it to do. The DMCA has taken the concept of a plugin into the legal arena. The DMCA is a law that allows a publisher to replace Title 17, the entire copyright code, with a computer language technological "plugin" replacement. Don't like that Title 17 Section 102 says that copyright is only available for original works of authorship? No problem! So long as your "plugin" also controls access to copyrighted works, you can take works from the public domain, encode them, and your "plugin" will eliminate that pesky part of copyright law. Glassbook is right on top of that. You can download such public domain classics as The Art Of War, The Federalist Papers, and The Politics of Aristotle -- and these public domain classics are just as protected by Glassbook's "Title 17 plugin" as if they were written yesterday. Don't like that Section 107 allows people to make partial or complete copies of your work for fair use purposes? No problem! Your plugin can fix that! Don't like that Section 109 allows people to sell their used books without your authority? No problem! The Glassbook plugin lets you put a stop to that. Or perhaps you would just like to charge people whenever they resell their digital books. Hey, there's no limit to what you can do, if you can replace Title 17 with your own programmed plugin! Here's an idea ... how about if a student drops out of school, their books are electronically erased so they can't sell them to a new student! Great idea! New York University's Dental School has contracted with Vital Source Technologies to create exactly that! Only possible if Title 17 can be replaced with an electronic "plugin." Don't like that Section 109 allows the owner of a copy to display works without permission of the copyright owner? No problem! The "CSS" plugin replacement for Title 17 allows DVD publishers to deny owners of DVDs the right to view their DVDs, unless they use "industry approved" equipment that pre-degrades the signal. And forget about extracting sections of digital video for fair use purposes ... The CSS Title 17 plugin doesn't provide for that, so it is illegal! Or perhaps you'd like to replace Section 109 with a different flavor. Want people to pay every time they press the play button to watch their own DVD? How about a book that charges you by the page to read it ... or by the hour. No problem! Anything becomes possible when you allow copyright owners to provide a "plugin" replacement for the entire copyright code, that does what they want it to do instead of what the copyright code says. Never mind that the copyright code, developed over 225 years, contains a system of checks and balances that protect both the rights of copyright owners and the rights of owners of lawful copies. That is all obsolete, because the DMCA gives copyright owners the absolute power. to disregard the copyright code and impose whatever "copyright law" they can dream up. And if you circumvent someone's invented "copyright law plugin", you're risking five years in jail and a $500,000 fine. That's what's wrong with the DMCA. It absolutely eliminates all the safeguards in copyright law that protect your right to learn; to self-educate; to have your own library; to trade in used books; to archive literary materials. Under the DMCA, you have no rights ... ... unless those rights happen to be part of the "plugin" you are using. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 13:37:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04211 for dvd-discuss-outgoing; Thu, 7 Sep 2000 13:37:57 -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 NAA04208 for ; Thu, 7 Sep 2000 13:37:56 -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 MAA17498 for ; Thu, 7 Sep 2000 12:38:45 -0500 (CDT) Message-ID: <39B7D2A7.B8ABFAC0@uic.edu> Date: Thu, 07 Sep 2000 12:38:47 -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] CSS vs. Access Control Content-Type: text/plain; charset=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> Reply: If you copy a DVD to a DVD-R, you are making an incomplete JS> copy, because DVD-Rs don't have a writable key area. If you have the JS> equipment to make a complete copy, then the licensed player will play JS> the JS> disc. "D. C. Sessions" writes: > Claiming that something is 'copy control' because the destination medium > doesn't have the capacity to hold the entire body of the material is a real > stretch. It's like saying that CDs are copy protected because one won't > fit on a 360K floppy disk. But that isn't what's going on here. Instead, we've found an entirely new wrinkle with CSS. Apparently, the ability of CSS to protect DVDs from copying depends not only on the CSS encryption on the disk and the CSS decryption in the hardware, as the MPAA claims. The ability of CSS to protect DVDs from being copied also depends on maintaining complete market control over DVD writers and blanks, to ensure that no equipment or media are released to the public with the ability to fill in the key area. Which shows that the CSS regime extends beyond pre-recorded discs and players. The ability of the MPAA to use CSS to prevent copying of DVDs depends on the ability of the MPAA to restrict the availability of ALL fully-functional writable media to parties under their control. (by means of the DVD-CCA.) Not sure that demonstrating this proves anything ... From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 13:56:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04375 for dvd-discuss-outgoing; Thu, 7 Sep 2000 13:56:03 -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 NAA04372 for ; Thu, 7 Sep 2000 13:55:59 -0400 Message-ID: <20000907175614.13518.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 07 Sep 2000 10:56:14 PDT Date: Thu, 7 Sep 2000 10:56:14 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] My letter to the Honorable Lamar Smith To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 sent the email below to my House representative. It's pretty easy to do this online at the sight http://www.house.gov/writerep/ __________________________________ To the Honorable Lamar S. Smith: I am an Oracle database consultant in your district. I work at Randolf Air Force Base in San Antonio, supporting the Air Force Recruiting Service. I write to you to express my very strong concern that the Digital Millenium Copyright Act, which passed in 1998, is a bad law that urgently needs to be revised or even repealed. I believe that the law does not adequately reflect the "delicate balance" that several hundred years of copyright jurisprudence has created. The troublesome section is 1201 of the Copyright Act (Title 17). My objections to this law are as follows: - It guts "Fair Use" completely - It stiffles competition, especially that of "open source" software - It risks antitrust abuse by creating two separate rights "access" and "copyright" that industry trusts exploit through tying and collusion - The reverse engineering 1201(f) exception is too narrow and is unclear - The encryption research 1201(g) exception is too narrow and is unclear - Despite 1201(c)(4) and 1203(b)(1), the law is being used to chill open discourse and free speech on the science of computer security matters - The law is ambiguous if copyright owner authority to access can be retained after "First Sale" of the copy, contradicting the "just rewards" purpose of the copyright monopoly and diminishing property rights - Protecting insecure systems with laws fosters insecurity not security; Most computer scientists support "full disclosure" of security flaws. I do not support piracy, and recognize that authors deserve financial reward as inducement to create. I note however that there is no "intent" language in the law: it reaches far beyond piracy into the realm of legitimate activity. The attempt to create enumerated exceptions fails miserably to address this. Just as fair use must be judged on a case-by-case basis, so too would a claim of "fair access". This bill appears to go beyond what is needed by granting wholesale control of the use of sold works to the copyright holder, who all to often isn't even the actual author, but is a corporate mammoth. I am not willing to sacrifice my intellectual property rights as a consumer to line the coffers of the MPAA and RIAA. I am certainly not willing to stiffle the free speech rights of open source programmers, who give generously to the intellectual commons, and exemplify copyright's calling "to promote the progress of science". __________________________________________________ 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 Sep 7 13:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04601 for dvd-discuss-outgoing; Thu, 7 Sep 2000 13:58:06 -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 NAA04595 for ; Thu, 7 Sep 2000 13:58:04 -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 NAA22504 for ; Thu, 7 Sep 2000 13:54:56 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.2.2.20000907101400.01774b60@pop.bellatlantic.net> References: <4.2.2.20000907101400.01774b60@pop.bellatlantic.net> Date: Thu, 7 Sep 2000 13:54:44 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] summary of CSS evils? 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 the issue of enforcing foreign censorship in US courts is important too. Here is the main part of my comment to the LOC on this matter: http://www.loc.gov/copyright/reports/studies/dmca/reply/Reply014.pdf "...The technical protection measures that DCMA addresses can also be used by foreign governments to prevent unwanted content from being viewed by its residents. This is the digital-millennium equivalent of the jamming of Radio Free Europe during the Cold War. An attempt by a US Citizen to bypass those measures, for example by buying a DVD movie about Tibet and re-coding it so that it is playable by a Chinese-zoned DVD player, could be prosecuted under DCMA as an act of circumvention. The tools for producing such a re-coded DVD are similarly proscribed under this law, as interpreted by its supporters and US District Judge Kaplan. Here is the testimony of Dean Marks, Senior Counsel, Intellectual Property for Time Warner, given at the Stamford Library of Congress hearing on DCMA (transcript 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. The DCMA makes violations of the censorship laws of every dictatorship in the world enforceable against US Citizens in US Courts. This violates the 'first sale' doctrine and is an outrage in a country that professes to promote freedom throughout the world." Arnold Reinhold PS My apologies for not acknowledging the contributor to this list who originally dug up the Marks quote. At 11:21 AM -0400 9/7/2000, Wendy Seltzer wrote: >At 08:31 AM 9/5/00 +0200, Tom Vogt wrote: >>for a very serious thing I'm currently working on (no details yet, but >>you'll be among the first to know), it would help me a lot if you could >>help me sum up in short all the evils of MPAA/CSS we're fighting, and if >>possible with quotable references (such as the great quote I got for "CSS >>exists for the purpose of forcing this whole thing unto the LEGAL >>battlefield"). > >For people who aren't familiar with the issues, I like to summarize >the problem as fine-grained controls over media use. > >Right now, publishers are forcing buyers to watch a DVD only on a >particular platform, without skipping advertising trailers, in a >limited "region," without the right to make fair use excerpts for >review or criticism, but the same combination of law and technology >will soon be used to prevent you from lending an ebook to a friend, >to prevent schools from moving an electronic encyclopedia from one >classroom to another, to prevent you from format-shifting music or >even moving it to a new computer when you replace the old one, even >to prevent reviewers from criticizing works and using excerpts in >their reviews. And of course, to prohibit anyone from reading any >"trusted" media within a cable's length of any open-source software. > >I know Time Warner's Sorkin likes to dismiss these scenarios as the >product of fevered imaginations, but we've seen enough evidence from >CSS, ebook trials, and SDMI proposals that we need law to prohibit >such use controls -- not reliance on the good faith and >customer-friendliness of publishers. Otherwise, we'll be stuck with >not just pay-per-use, but fair (and non-copyright) uses unavailable >*even for pay.* > >--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 Sep 7 14:12:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04895 for dvd-discuss-outgoing; Thu, 7 Sep 2000 14:12:16 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA04892 for ; Thu, 7 Sep 2000 14:12:14 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA15985 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 13:13:02 -0500 Date: Thu, 7 Sep 2000 13:13:02 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. Message-ID: <20000907131302.A15905@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39B7CD9F.6575C2A6@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <39B7CD9F.6575C2A6@uic.edu>; from jms@uic.edu on Thu, Sep 07, 2000 at 12:17:19PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 12:17:19PM -0500, John Schulien wrote: > > The DMCA has taken the concept of a plugin into the > legal arena. The DMCA is a law that allows a publisher > to replace Title 17, the entire copyright code, with a > computer language technological "plugin" replacement. > > Don't like that Title 17 Section 102 says that copyright is > only available for original works of authorship? No > problem! So long as your "plugin" also controls access > to copyrighted works, you can take works from the public > domain, encode them, and your "plugin" will eliminate > that pesky part of copyright law. I think that's a hilarious idea. You should write this up as an article for a general audience and get it published somewhere! In a fair world, access-control or copy-control mechanisms should explicitly lose their legal protection (under 17 USC 1201 and friends) if they prevent anything that can't be called "infringing on the copyright holder's exclusive rights". In other words, protect against copying, fine. You get 1201 protection. Protect against access-without-payment, fine. You get 1201 protection. Bundle in a region-coding scheme and you lose 1201 protection and you can no longer sue circumvention-device providers (or users). Call this "abuse of copyright protection systems", perhaps. Would this be a valid legal argument today, even without law that explicitly provides for it? I mean, abuse of copyright isn't codified, is it? Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 14:34:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05345 for dvd-discuss-outgoing; Thu, 7 Sep 2000 14:34:02 -0400 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05342 for ; Thu, 7 Sep 2000 14:34:01 -0400 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id OAA28548 for ; Thu, 7 Sep 2000 14:34:49 -0400 (EDT) Message-Id: <4.2.2.20000907140420.01767660@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 07 Sep 2000 14:34:44 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. In-Reply-To: <39B7CD9F.6575C2A6@uic.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 12:17 PM 9/7/00 -0500, John Schulien wrote: >Michael Rolenz writes: > > BTW- "promoting new technologies" - They > > really don't understand what that means. > >Sure they understand! My latest slashdot rant ... > >We all understand the concept of a plugin in software. >If you want to watch a flash file, you have to download >the plugin that allows you to do so. Then, when you open >a flash file, the flash plugin takes over and your computer >does exactly what the author of the flash file wants it to do. This is a great analogy! Lots of fun, but it also shows the power of technical controls tied to anticircumvention. Technological locks allow publishers to ignore legislated and constitutional restrictions on their rights by coding themselves an alternative grant of rights -- and the DMCA enforces that grant. >The DMCA has taken the concept of a plugin into the >legal arena. The DMCA is a law that allows a publisher >to replace Title 17, the entire copyright code, with a >computer language technological "plugin" replacement. > >Don't like that Title 17 Section 102 says that copyright is >only available for original works of authorship? No >problem! So long as your "plugin" also controls access >to copyrighted works, you can take works from the public >domain, encode them, and your "plugin" will eliminate >that pesky part of copyright law. > >Glassbook is right on top of that. You can download such >public domain classics as The Art Of War, The Federalist >Papers, and The Politics of Aristotle -- and these public >domain classics are just as protected by Glassbook's >"Title 17 plugin" as if they were written yesterday. It also illustrates a shift from the contract arena, where the preemption battle is being fought despite ProCD (whether state-law contracts _can_ regulate use of material federal law has deemed un-copyright-protected), to a kind of "mechanical contract" where the media consumers may not even be told the terms of their licenses. Contracts are already "law plugins" within limits -- you can spell out in a contract terms that may vary from the legal "defaults," such as by disclaiming warranties or changing remedies, but you're limited by public policy and some legal provisions that can't be overridden. The new publisher chooses his law not in a legal document (that, despite its legalese, must still be comprehensible) but in closed code. Where ProCD had to rely on a click-through agreement that was subject to much judicial scrutiny, Glassbook can "publish" the phonebook behind an encryption no one need agree to yet none can challenge. Suddenly, fair use just appears not to be part of the package you purchased. >That's what's wrong with the DMCA. It absolutely eliminates >all the safeguards in copyright law that protect your right to >learn; to self-educate; to have your own library; to trade >in used books; to archive literary materials. Under the >DMCA, you have no rights ... > >... unless those rights happen to be part of the "plugin" >you are using. Here's an entree to the delegation argument, the Simi Valley case Bryan pointed us to, and cases such as Shelley v. Kraemer that find "state action" where the state is called in to enforce improper private restrictions. (In Shelley v. Kraemer, the court refused to enforce a racially restrictive covenant in a private contract.) Here, copyright owners are calling upon the state to enforce anticircuvmention provisions to protect "rights" it couldn't grant them in the first place. Since we can't, as in some contracts, sever the unconscionable or improper terms and take only half the plugin, we need the right to circumvent the entire thing. --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 Sep 7 14:47:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05516 for dvd-discuss-outgoing; Thu, 7 Sep 2000 14:47:02 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05513 for ; Thu, 7 Sep 2000 14:46:56 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 11:47:04 -0700 Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 11:47:02 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 11:47:03 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Actually, my comments meant that they really want to promote new technologies only if they preserve their status quo but by its very nature, new technology eliminates the status quo. But your "ranting" focuses this better than my comment. The issue is not really a group of corporations attempting to preserve a "business" model who are willing to go to extreme efforts to accomplish that. It's about the consequences of letting them do it. Without some prohibitions, what is to stop others from developing things even more speculative that Sorkin's imagination. You've posted this on Slash Dot...send it everywhere you can. I haven't read an editorial in the newspapers recently that was a thought provoking as well as entertaining. John Schulien Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. 09/07/00 10:20 AM Please respond to dvd-discuss Michael Rolenz writes: > BTW- "promoting new technologies" - They > really don't understand what that means. Sure they understand! My latest slashdot rant ... We all understand the concept of a plugin in software. If you want to watch a flash file, you have to download the plugin that allows you to do so. Then, when you open a flash file, the flash plugin takes over and your computer does exactly what the author of the flash file wants it to do. The DMCA has taken the concept of a plugin into the legal arena. The DMCA is a law that allows a publisher to replace Title 17, the entire copyright code, with a computer language technological "plugin" replacement. Don't like that Title 17 Section 102 says that copyright is only available for original works of authorship? No problem! So long as your "plugin" also controls access to copyrighted works, you can take works from the public domain, encode them, and your "plugin" will eliminate that pesky part of copyright law. Glassbook is right on top of that. You can download such public domain classics as The Art Of War, The Federalist Papers, and The Politics of Aristotle -- and these public domain classics are just as protected by Glassbook's "Title 17 plugin" as if they were written yesterday. Don't like that Section 107 allows people to make partial or complete copies of your work for fair use purposes? No problem! Your plugin can fix that! Don't like that Section 109 allows people to sell their used books without your authority? No problem! The Glassbook plugin lets you put a stop to that. Or perhaps you would just like to charge people whenever they resell their digital books. Hey, there's no limit to what you can do, if you can replace Title 17 with your own programmed plugin! Here's an idea ... how about if a student drops out of school, their books are electronically erased so they can't sell them to a new student! Great idea! New York University's Dental School has contracted with Vital Source Technologies to create exactly that! Only possible if Title 17 can be replaced with an electronic "plugin." Don't like that Section 109 allows the owner of a copy to display works without permission of the copyright owner? No problem! The "CSS" plugin replacement for Title 17 allows DVD publishers to deny owners of DVDs the right to view their DVDs, unless they use "industry approved" equipment that pre-degrades the signal. And forget about extracting sections of digital video for fair use purposes ... The CSS Title 17 plugin doesn't provide for that, so it is illegal! Or perhaps you'd like to replace Section 109 with a different flavor. Want people to pay every time they press the play button to watch their own DVD? How about a book that charges you by the page to read it ... or by the hour. No problem! Anything becomes possible when you allow copyright owners to provide a "plugin" replacement for the entire copyright code, that does what they want it to do instead of what the copyright code says. Never mind that the copyright code, developed over 225 years, contains a system of checks and balances that protect both the rights of copyright owners and the rights of owners of lawful copies. That is all obsolete, because the DMCA gives copyright owners the absolute power. to disregard the copyright code and impose whatever "copyright law" they can dream up. And if you circumvent someone's invented "copyright law plugin", you're risking five years in jail and a $500,000 fine. That's what's wrong with the DMCA. It absolutely eliminates all the safeguards in copyright law that protect your right to learn; to self-educate; to have your own library; to trade in used books; to archive literary materials. Under the DMCA, you have no rights ... .. unless those rights happen to be part of the "plugin" you are using. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 14:59:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05731 for dvd-discuss-outgoing; Thu, 7 Sep 2000 14:59:08 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05728 for ; Thu, 7 Sep 2000 14:59:06 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 11:59:04 -0700 Subject: Re: [dvd-discuss] Relevance of Previous Comments To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 11:59:02 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 11:59:03 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. I agree. As a test case, the DeCSS sets precedence until the law is changed or the Supreme Court throws it out. The only way that will get changed is to get the issues out in public discussion. Also, in the previous comments submitted on the DMCA encryption issue, TWI made a big deal about "cracking" over the internet as if that was something new....[I wonder sometimes why in looking at the documents in this case why total ignorance can be taken seriously merely by putting the "I swear under threat of perjury that the facts are true [and cross my heart and know I won't die].." In view of this whole DeCSS trial, the "definition" of professional encryption research(er)" needs to be reconsidered. Just who are the professionals and who were the amateurs..The "professionals" were clearly incompetent and should have spent a little time looking at old IEEE Transactions, they would have learned a thing or two..or just bought Sol. Golomb's book and the "amateurs" seemed to have more ability and talent. This whole notion that there are professional encryption researchers is silly. This is not like a Doctor, A Lawyer who need some demonstrable skills to practice a profession.BTW Thomas Jefferson would not make that grade even though he had a patent on a device (similar ones were in use until WWII) ...well time for me to start writing my own letter to jfed@loc.gov Bryan Taylor To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Relevance of Previous arvard.edu Comments 09/07/00 10:10 AM Please respond to dvd-discuss --- mickeym wrote: > After reading all of the reply comments, I was struck by the number > of times that relevance was cited as a reason to disregard > the comments of others. "Are there any additional issues that should > be considered? If so, what are they and what are your views on them?" > was in the list of questions for this proceeding. When I put my submission in, I got an automated reply that said to address any email correspondence to jfed@loc.gov . You should forward your post to him. I set the following just a few minutes ago to jfed@loc.gov _________________________________________ I wanted to thank the Copyright Office one more time for affording the public the opportunity to provide input regarding the DMCA. I also wanted to say that I hope your office will revisit the encryption research topic soon. I believe that your conclusion was approximately "It's too early to say". The first round of comments on 1201(g) came in July of 1999, before many of us understood how the copyright industry was intending to use the law. I also hope you will commission a study on the reverse engineering section of the law. It is my feeling that much public sentiment exists that the exceptions for 1201(f) and (g) are too narrow and/or unclear to understand what you have to do to qualify for them. Finally, I was a bit annoyed by several of the 109/117 reply comments that asked you to ignore opinions that they deemed out of scope for the investigation. I would just like to point out that that question 2(a) read: "Are there any additional issues that should be considered? If so, what are they and what are your views on 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 Thu Sep 7 14:59:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05723 for dvd-discuss-outgoing; Thu, 7 Sep 2000 14:59:03 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05720 for ; Thu, 7 Sep 2000 14:59:02 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 11:58:45 -0700 Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 11:58:43 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 11:58:44 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes it does a wonderful job. It takes to a the logical conclusion of unrestricted use of technology required to access copyright material that started with Thomas Edison's grammephone and projector- it eliminates access! Wendy Seltzer To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] The DMCA is a arvard.edu "plugin" to replace copyright law. 09/07/00 11:38 AM Please respond to dvd-discuss At 12:17 PM 9/7/00 -0500, John Schulien wrote: >Michael Rolenz writes: > > BTW- "promoting new technologies" - They > > really don't understand what that means. > >Sure they understand! My latest slashdot rant ... > >We all understand the concept of a plugin in software. >If you want to watch a flash file, you have to download >the plugin that allows you to do so. Then, when you open >a flash file, the flash plugin takes over and your computer >does exactly what the author of the flash file wants it to do. This is a great analogy! Lots of fun, but it also shows the power of technical controls tied to anticircumvention. Technological locks allow publishers to ignore legislated and constitutional restrictions on their rights by coding themselves an alternative grant of rights -- and the DMCA enforces that grant. >The DMCA has taken the concept of a plugin into the >legal arena. The DMCA is a law that allows a publisher >to replace Title 17, the entire copyright code, with a >computer language technological "plugin" replacement. > >Don't like that Title 17 Section 102 says that copyright is >only available for original works of authorship? No >problem! So long as your "plugin" also controls access >to copyrighted works, you can take works from the public >domain, encode them, and your "plugin" will eliminate >that pesky part of copyright law. > >Glassbook is right on top of that. You can download such >public domain classics as The Art Of War, The Federalist >Papers, and The Politics of Aristotle -- and these public >domain classics are just as protected by Glassbook's >"Title 17 plugin" as if they were written yesterday. It also illustrates a shift from the contract arena, where the preemption battle is being fought despite ProCD (whether state-law contracts _can_ regulate use of material federal law has deemed un-copyright-protected), to a kind of "mechanical contract" where the media consumers may not even be told the terms of their licenses. Contracts are already "law plugins" within limits -- you can spell out in a contract terms that may vary from the legal "defaults," such as by disclaiming warranties or changing remedies, but you're limited by public policy and some legal provisions that can't be overridden. The new publisher chooses his law not in a legal document (that, despite its legalese, must still be comprehensible) but in closed code. Where ProCD had to rely on a click-through agreement that was subject to much judicial scrutiny, Glassbook can "publish" the phonebook behind an encryption no one need agree to yet none can challenge. Suddenly, fair use just appears not to be part of the package you purchased. >That's what's wrong with the DMCA. It absolutely eliminates >all the safeguards in copyright law that protect your right to >learn; to self-educate; to have your own library; to trade >in used books; to archive literary materials. Under the >DMCA, you have no rights ... > >... unless those rights happen to be part of the "plugin" >you are using. Here's an entree to the delegation argument, the Simi Valley case Bryan pointed us to, and cases such as Shelley v. Kraemer that find "state action" where the state is called in to enforce improper private restrictions. (In Shelley v. Kraemer, the court refused to enforce a racially restrictive covenant in a private contract.) Here, copyright owners are calling upon the state to enforce anticircuvmention provisions to protect "rights" it couldn't grant them in the first place. Since we can't, as in some contracts, sever the unconscionable or improper terms and take only half the plugin, we need the right to circumvent the entire thing. --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 Sep 7 15:15:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06123 for dvd-discuss-outgoing; Thu, 7 Sep 2000 15:15:02 -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 PAA06120 for ; Thu, 7 Sep 2000 15:15:01 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 7 Sep 2000 15:15:07 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Relevance of Previous Comments Date: Thu, 7 Sep 2000 15:15:03 -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 >Michael.A.Rolenz@aero.org >This is not like a Doctor, A Lawyer who need some demonstrable >skills to practice a profession. Only in some countries, and even then its debatable :). From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 15:38:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07123 for dvd-discuss-outgoing; Thu, 7 Sep 2000 15:38:13 -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 PAA07120 for ; Thu, 7 Sep 2000 15:38:11 -0400 Message-ID: <20000907193830.17208.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 07 Sep 2000 12:38:30 PDT Date: Thu, 7 Sep 2000 12:38:30 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Relevance of Previous Comments To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 got a reply to my letter from "Jesse M. Feder" He was pretty responsive. All comments will be read and considered. __________________________________________________ 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 Sep 7 16:31:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08288 for dvd-discuss-outgoing; Thu, 7 Sep 2000 16:31:00 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08285 for ; Thu, 7 Sep 2000 16:30:53 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 13:31:01 -0700 Subject: RE: [dvd-discuss] Relevance of Previous Comments To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 13:30:59 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 01:31:00 PM MIME-Version: 1.0 Content-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 deleted a parenthetical stating that intelligence seemingly was not a demonstratable skill for lawyers....JDs who are part of [dvd-discuss] excluded ;-) Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Sent by: owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: RE: [dvd-discuss] Relevance of Previous Comments 09/07/00 12:18 PM Please respond to dvd-discuss >Michael.A.Rolenz@aero.org >This is not like a Doctor, A Lawyer who need some demonstrable >skills to practice a profession. Only in some countries, and even then its debatable :). From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 16:37:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08727 for dvd-discuss-outgoing; Thu, 7 Sep 2000 16:37:03 -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 QAA08724 for ; Thu, 7 Sep 2000 16:37:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 22:31:34 +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; Thu, 7 Sep 2000 22:20:20 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 22:20:20 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My letter to the Honorable Lamar Smith Message-ID: <20000907222020.E15065@lemuria.org> References: <20000907175614.13518.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000907175614.13518.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: > I just sent the email below to my House representative. > It's pretty easy to do this online at the sight you might want to send the text again in a physical letter - I've heard at lots of places now that e-mails are just counted, not actually read, much less by the senator or whatever he's called. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 16:36:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08719 for dvd-discuss-outgoing; Thu, 7 Sep 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 QAA08716 for ; Thu, 7 Sep 2000 16:36:55 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 7 Sep 2000 22:31:34 +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; Thu, 7 Sep 2000 22:16:19 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 7 Sep 2000 22:16:19 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. Message-ID: <20000907221619.D15065@lemuria.org> References: <39B7CD9F.6575C2A6@uic.edu> <20000907131302.A15905@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000907131302.A15905@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: > Call this "abuse of copyright protection systems", perhaps. Would this be > a valid legal argument today, even without law that explicitly provides > for it? I mean, abuse of copyright isn't codified, is it? I dimly remember that there is such a thing and that it does mean you lose the copyright protection. I think it was mentioned briefly with regards to the RIAA, maybe in the napster case. hopefully, this jogs someone's memory who can provide the details? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 16:58:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08952 for dvd-discuss-outgoing; Thu, 7 Sep 2000 16:58:34 -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 QAA08949 for ; Thu, 7 Sep 2000 16:58:33 -0400 Received: from ip90.bedford16.ma.pub-ip.psi.net ([38.32.90.90]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13X8lW-0002Te-00 for dvd-discuss@eon.law.harvard.edu; Thu, 07 Sep 2000 16:59:22 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. Date: Thu, 07 Sep 2000 17:02:01 -0400 Message-ID: <7c0grskl8p8ocoudvbo8u213rlsr4jf4as@4ax.com> References: <39B7CD9F.6575C2A6@uic.edu> <20000907131302.A15905@thud.reric.net> In-Reply-To: <20000907131302.A15905@thud.reric.net> X-Mailer: Forte Agent 1.8/32.548 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id QAA08950 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 7 Sep 2000 13:13:02 -0500, Eric Seppanen wrote: >Call this "abuse of copyright protection systems", perhaps. That sounds like a good topic for chapter 1206 (as yet unwritten) Maybe we should take a crack at it(?) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 17:01:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09073 for dvd-discuss-outgoing; Thu, 7 Sep 2000 17:01:38 -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 RAA09070 for ; Thu, 7 Sep 2000 17:01:37 -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 QAA28950 for ; Thu, 7 Sep 2000 16:02:26 -0500 (CDT) Message-ID: <39B80266.FAF5D168@uic.edu> Date: Thu, 07 Sep 2000 16:02:30 -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] Copyright misuse Content-Type: text/plain; charset=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 dimly remember that there is such a thing and that it does mean you lose > the copyright protection. I think it was mentioned briefly with regards to > the RIAA, maybe in the napster case. hopefully, this jogs someone's memory > who can provide the details? Found this URL in the archives: http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/text.html From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 17:24:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09463 for dvd-discuss-outgoing; Thu, 7 Sep 2000 17:24:36 -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 RAA09460 for ; Thu, 7 Sep 2000 17:24:35 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA16333 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 16:25:23 -0500 Date: Thu, 7 Sep 2000 16:25:23 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Copyright misuse Message-ID: <20000907162523.A16300@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39B80266.FAF5D168@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <39B80266.FAF5D168@uic.edu>; from jms@uic.edu on Thu, Sep 07, 2000 at 04:02:30PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 04:02:30PM -0500, John Schulien wrote: > Tom Vogt wrote: > > I dimly remember that there is such a thing and that it does mean you > lose > > the copyright protection. I think it was mentioned briefly with > regards to > > the RIAA, maybe in the napster case. hopefully, this jogs someone's > memory > > who can provide the details? > > Found this URL in the archives: > > http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/text.html Wow, that's really good. I especially love the case cited (Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990)) where they take a defendant who had obviously committed copyright infringement, and the court rules for the defendant because the plaintiff had included a provision in the software license agreement that said the licensee couldn't produce competing software for 100 years. The 100 years was ruled "copyright misuse". Not only was the 100 years found to be nonbinding, it meant that the plaintiffs were no longer entitled to copyright protection! (until the "effects of the misuse" were gone, anyway) I think it makes a lot of sense to imagine this "misuse" doctine extending to include copyright "protection" mechanisms. And it provides a logical outcome: the mechanism is denied legal protection until the abuse is removed. Now, I don't know if region codes are nasty enough to be considered misuse, but it doesn't seem like much of a stretch to call the fair use problems "misuse". There's a certain parallel between the case cited: in that case the license agreement went too far and so the entire basis for the license (copyright holder's exclusive right to copy) was suspended. Here, the CSS copy-control mechanism goes too far (preventing fair use), and therefore its legal protection (17USC1201...) should be suspended. 'Course, IANAL, so maybe that's just wishful thinking. Maybe "copyright misuse" is too obscure to carry much weight... Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 17:38:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09657 for dvd-discuss-outgoing; Thu, 7 Sep 2000 17:38:23 -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 RAA09654 for ; Thu, 7 Sep 2000 17:38:21 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA16364 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 16:39:09 -0500 Date: Thu, 7 Sep 2000 16:39:09 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Copyright misuse Message-ID: <20000907163909.A16346@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39B80266.FAF5D168@uic.edu> <20000907162523.A16300@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000907162523.A16300@thud.reric.net>; from eds@thud.reric.net on Thu, Sep 07, 2000 at 04:25:23PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Of course, a nice bit on the abuse of "paracopyright" was included in the "Authority of the Copyright Owner" paper by Bryan Taylor and Robert S. Thau. (http://www.ai.mit.edu/people/rst/dmca/auth/auth.html) Their paper suggests copyright misuse due to the unlimited time of protection and antitrust issues, which don't seem terribly convincing to me because those are problems with the _law_, not problems with the plaintiffs. The place where it mentions region coding seems stronger to me, because it seems a little more comforting to be able to find fault with the plaintiffs than with the law (even if the law really deserves most of the fault). The things that plaintiffs did that fall in this category include region coding (they didn't have to add them) and the stifling of fair use (the players could allow saving "excerpts" or format-shifting). Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 17:58:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10246 for dvd-discuss-outgoing; Thu, 7 Sep 2000 17:58:07 -0400 Received: from kora.host4u.net (kora.host4u.net [216.71.64.58]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10201; Thu, 7 Sep 2000 17:58:05 -0400 Received: from [62.82.13.133] (129-BARC-X26.libre.retevision.es [62.82.4.129]) by kora.host4u.net (8.8.5/8.8.5) with ESMTP id QAA17691; Thu, 7 Sep 2000 16:55:26 -0500 Mime-Version: 1.0 Message-Id: Date: Thu, 7 Sep 2000 23:34:46 +0200 To: community@pigpen.demon.co.uk From: pere soto Subject: [dvd-discuss] presentation , invitation to my site....from pere soto 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 hello; My name name is Pere Soto (musician, composer, webmaster) and I'm doing a presentation and invitation to my site http://www.chetman.com (music, art digital, international music management) and my mp3 sites http://www.mp3.com/peresoto http://www.mp3.com/perebil http://www.mp3.com/peresototrio from where is posible to listen for free o to buy my music. thanks for your attention... regards, pere soto (musician, composer, webmaster) -- Chetman http://www.chetman.com Pere Soto (jazz guitar/composer) http://www.chetman.com art gallery http://www.chetman.com MP3.COM SITES http://www.mp3.com/peresoto http://www.mp3.com/perebil http://www.mp3.com/peresototrio chetman ICQ number 18884168 From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 17:59:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10442 for dvd-discuss-outgoing; Thu, 7 Sep 2000 17:59:01 -0400 Received: from web118.yahoomail.com (web118.yahoomail.com [205.180.60.99]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA10439 for ; Thu, 7 Sep 2000 17:59:00 -0400 Received: (qmail 22749 invoked by uid 60001); 7 Sep 2000 21:59:49 -0000 Message-ID: <20000907215949.22748.qmail@web118.yahoomail.com> Received: from [128.122.253.144] by web118.yahoomail.com; Thu, 07 Sep 2000 14:59:49 PDT Date: Thu, 7 Sep 2000 14:59:49 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] My letter to the Honorable Lamar Smith To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 suggestion, you (and others) might want to get better attn. the Media Coordinator or Manager's name for Rep Smith and send another copy to that person. It's more than likely that legislative aide is somewhere in your area rather than the DC office. Channeling to the right person & the result is pretty direct. --- --- Bryan Taylor wrote: > I just sent the email below to my House > representative. > It's pretty easy to do this online at the sight > http://www.house.gov/writerep/ > __________________________________ > > To the Honorable Lamar S. Smith: > > I am an Oracle database consultant in your district. > I work at Randolf > Air Force Base in San Antonio, supporting the Air > Force Recruiting > Service. > > I write to you to express my very strong concern > that the Digital > Millenium Copyright Act, which passed in 1998, is a > bad law that > urgently needs to be revised or even repealed. I > believe that the law > does not adequately reflect the "delicate balance" > that several hundred > years of copyright jurisprudence has created. The > troublesome section > is 1201 of the Copyright Act (Title 17). > > My objections to this law are as follows: > > - It guts "Fair Use" completely > - It stiffles competition, especially that of "open > source" software > - It risks antitrust abuse by creating two separate > rights "access" and > "copyright" that industry trusts exploit through > tying and collusion > - The reverse engineering 1201(f) exception is too > narrow and is > unclear > - The encryption research 1201(g) exception is too > narrow and is > unclear > - Despite 1201(c)(4) and 1203(b)(1), the law is > being used to chill > open discourse and free speech on the science of > computer security > matters > - The law is ambiguous if copyright owner authority > to access can be > retained after "First Sale" of the copy, > contradicting the "just > rewards" purpose of the copyright monopoly and > diminishing property > rights > - Protecting insecure systems with laws fosters > insecurity not > security; Most computer scientists support "full > disclosure" of > security flaws. > > I do not support piracy, and recognize that authors > deserve financial > reward as inducement to create. I note however that > there is no > "intent" language in the law: it reaches far beyond > piracy into the > realm of legitimate activity. The attempt to create > enumerated > exceptions fails miserably to address this. Just as > fair use must be > judged on a case-by-case basis, so too would a claim > of "fair access". > > This bill appears to go beyond what is needed by > granting wholesale > control of the use of sold works to the copyright > holder, who all to > often isn't even the actual author, but is a > corporate mammoth. I am > not willing to sacrifice my intellectual property > rights as a consumer > to line the coffers of the MPAA and RIAA. I am > certainly not willing to > stiffle the free speech rights of open source > programmers, who give > generously to the intellectual commons, and > exemplify copyright's > calling "to promote the progress of science". > > __________________________________________________ > Do You Yahoo!? > Yahoo! Mail - Free email you can access from > anywhere! > http://mail.yahoo.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 Thu Sep 7 18:42:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10856 for dvd-discuss-outgoing; Thu, 7 Sep 2000 18:42:50 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA10853 for ; Thu, 7 Sep 2000 18:42:49 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 15:41:50 -0700 Subject: Re: [dvd-discuss] Copyright misuse To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 7 Sep 2000 15:39:25 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/07/2000 03:41:49 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well...that fits into my "pet" theory that access controls such as CSS effectively prevent works from coming into the public domain from ANY available copy in perpetuity especially if they control the manufacturing and the ability to STOP the manufacturing of playback devices of anykind either through economic means or DMCA. That's seems like an misuse of copyright...or that violates the contract all copyright holders have with the government to allow material to enter the public domain.[I realize that sounds rather like Jefferson's view that when a King Becomes a Tyrant he breaks the contact with his subjects.] Makes me wonder how we ever would have gotten ANYTHING from the Roman or Greeks through the Middle Ages with if they had copy protection or the DMCA. Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Copyright misuse arvard.edu 09/07/00 02:30 PM Please respond to dvd-discuss On Thu, Sep 07, 2000 at 04:02:30PM -0500, John Schulien wrote: > Tom Vogt wrote: > > I dimly remember that there is such a thing and that it does mean you > lose > > the copyright protection. I think it was mentioned briefly with > regards to > > the RIAA, maybe in the napster case. hopefully, this jogs someone's > memory > > who can provide the details? > > Found this URL in the archives: > > http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/text.html Wow, that's really good. I especially love the case cited (Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990)) where they take a defendant who had obviously committed copyright infringement, and the court rules for the defendant because the plaintiff had included a provision in the software license agreement that said the licensee couldn't produce competing software for 100 years. The 100 years was ruled "copyright misuse". Not only was the 100 years found to be nonbinding, it meant that the plaintiffs were no longer entitled to copyright protection! (until the "effects of the misuse" were gone, anyway) I think it makes a lot of sense to imagine this "misuse" doctine extending to include copyright "protection" mechanisms. And it provides a logical outcome: the mechanism is denied legal protection until the abuse is removed. Now, I don't know if region codes are nasty enough to be considered misuse, but it doesn't seem like much of a stretch to call the fair use problems "misuse". There's a certain parallel between the case cited: in that case the license agreement went too far and so the entire basis for the license (copyright holder's exclusive right to copy) was suspended. Here, the CSS copy-control mechanism goes too far (preventing fair use), and therefore its legal protection (17USC1201...) should be suspended. 'Course, IANAL, so maybe that's just wishful thinking. Maybe "copyright misuse" is too obscure to carry much weight... Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 18:59:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA11068 for dvd-discuss-outgoing; Thu, 7 Sep 2000 18:59:03 -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 SAA11065 for ; Thu, 7 Sep 2000 18:59:02 -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 SAA14319; Thu, 7 Sep 2000 18:59:47 -0400 (EDT) Message-ID: <39B81E7B.4F6EFD43@mit.edu> Date: Thu, 07 Sep 2000 19:02:19 -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 DMCA is a "plugin" to replace copyright law. References: <39B7CD9F.6575C2A6@uic.edu> <20000907131302.A15905@thud.reric.net> <20000907221619.D15065@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: > > Eric Seppanen wrote: > > Call this "abuse of copyright protection systems", perhaps. Would this be > > a valid legal argument today, even without law that explicitly provides > > for it? I mean, abuse of copyright isn't codified, is it? > > I dimly remember that there is such a thing and that it does mean you lose > the copyright protection. I think it was mentioned briefly with regards to > the RIAA, maybe in the napster case. hopefully, this jogs someone's memory > who can provide the details? Yes. One of the Napster briefs (the first authored by David Boies) talks extensively about copyright misuse. It is available at: http://dl.napster.com/opposition.pdf The part on copyright misuse starts is on pages 22-26 or 23-27 (depending on whether you use the brief's page numbers or Acrobat's, respectivel). There's probably more along the same lines in Napster's other legal filings, but I don't know of a place where they are collected. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 19:14:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11330 for dvd-discuss-outgoing; Thu, 7 Sep 2000 19:14:05 -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 TAA11327 for ; Thu, 7 Sep 2000 19:14:04 -0400 Message-ID: <20000907231424.21270.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 07 Sep 2000 16:14:24 PDT Date: Thu, 7 Sep 2000 16:14:24 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Copyright misuse To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/text.html I reread this (for the 3rd time). Every time I read it I learn something new: "Like the protection provided by copyright law, contracts may be used to protect ideas and trade secrets embodied in software. Restrictions in mass-market licenses can routinely prevent reverse engineering by the general public, and thus can greatly enhance the power of trade secret law. If so, the balance between trade secrets and patents will have shifted sufficiently that these clauses will be an 'obstacle to the accomplishment and execution of the full purposes and objectives of Congress' and should be struck down as misuse." __________________________________________________ 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 Sep 7 19:26:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11513 for dvd-discuss-outgoing; Thu, 7 Sep 2000 19:26:54 -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 TAA11510 for ; Thu, 7 Sep 2000 19:26:53 -0400 Received: from swbell.net ([64.216.209.193]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0J00LCQI6BBK@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 18:20:35 -0500 (CDT) Date: Thu, 07 Sep 2000 18:11:35 -0500 From: Jolley Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. To: dvd-discuss@eon.law.harvard.edu Message-id: <39B820A7.63DD8068@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: <39B7CD9F.6575C2A6@uic.edu> <20000907131302.A15905@thud.reric.net> <20000907221619.D15065@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: > > Eric Seppanen wrote: > > Call this "abuse of copyright protection systems", perhaps. Would this be > > a valid legal argument today, even without law that explicitly provides > > for it? I mean, abuse of copyright isn't codified, is it? > > I dimly remember that there is such a thing and that it does mean you lose > the copyright protection. I think it was mentioned briefly with regards to > the RIAA, maybe in the napster case. hopefully, this jogs someone's memory > who can provide the details >From an earlier posting: http://dl.napster.com/opposition.pdf From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 19:42:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11710 for dvd-discuss-outgoing; Thu, 7 Sep 2000 19:42:13 -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 TAA11707 for ; Thu, 7 Sep 2000 19:42:12 -0400 Received: from swbell.net ([64.216.209.193]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0J00JNNJ38TU@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 18:40:20 -0500 (CDT) Date: Thu, 07 Sep 2000 18:31:20 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B82548.5B64F0B3@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> <200009070958.FAA02664@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If Kaplan has bullied one of the defendent's lawyers into agreeing that CSS protects access to a copyrighted work, does that destroy any arguments we have here to the contrary? "Robert S. Thau" wrote: > > > We can argue that Kaplan's ruling against Corley, based entirely on the > notion that "CSS effectively controls access to a work", ought to be > tossed. > > rst >From the "code as speech" thread by Paul Fenimore: >The judge having been duly indoctrinated, we get: > > > THE COURT: The charge against your clients is providing a device which > is a means for circumventing an access limiting factor. The > infringement would be done by someone else, although it might be done > by your client, it need not be. Nor is the infringement essential to > the violation of 1201. Is there some error in that, counsel? > > MS. GROSS: I think you need to have--I'm sorry. > > MR. LEVY: Essentially, your Honor, our reading of the DMCA, certainly > in order to make it a constitutional reading, is that it does not >=> outlaw any type of decryption. It only outlaws decryption that affects > copyrighters' rights, and to that extent the two are read together; > that is, it is not the case that as soon as you engage in the science > of cryptology you have violated the DMCA, though certainly those raise > other constitutional issues. That's essentially what we are saying. Is > that clear? > > THE COURT: What you've said is clear. It's just very different from > what Congress said. > >[ ... ] > > THE COURT: It says that you can't offer to the public any technology, > product, service, etc., that's primarily designed or produced for the > purpose of circumventing a technological measure that effectively > controls access to a protected work. Now, is there any doubt that CSS > protects access to a copyrighted work? Is there any at all? > > MS. GROSS: Agreed. > >=> THE COURT: Is there any doubt at all that DeCSS is a device that >=> circumvents CSS? > >=> MS. GROSS: It does descramble it. > >=> THE COURT: Okay. > >=> MS. GROSS: But that-- > >=> THE COURT: With that established, let's proceed. > From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 20:08:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11971 for dvd-discuss-outgoing; Thu, 7 Sep 2000 20:08:17 -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 UAA11968 for ; Thu, 7 Sep 2000 20:08:16 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id TAA16643 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 19:09:05 -0500 Date: Thu, 7 Sep 2000 19:09:05 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] misuse, Alcatel v. DGI Message-ID: <20000907190905.A16606@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1us Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On the [para]copyright misuse topic, I didn't see Alcatel v. DGI mentioned in the archives, so I figured I'd toss a few juicy quotes out there. It's cited in the Napster document as Alcatel USA v. DGI Tech., 166 F.3d 772 (5th Cir. 1999) and it's on the web at http://www.ca5.uscourts.gov/opinions/pub/97/97-11339-cv0.htm and it (and the berkeley technology law journal article mentioned earlier) cites an earlier case, "DSC I" (DSC Communications Corp. v. DGI Technologies, Inc.) as 81 F.3d at 601, and it's here: http://www.ca5.uscourts.gov/opinions/pub/95/95-10850-cv0.htm _DSC_, as quoted in _Alcatel_: "DSC seems to be attempting to use its copyright to obtain a patent-like monopoly over unpatented microprocessor cards," which seems a close parallel to the CSS trust (MPAA-DVDCCA) trying to exert a patent-like monopoly over the unpatented CSS algorithm. _Alcatel_ also quotes the _DSC_ district court's jury instructions (and you gotta love this judge): [I]f DSC has used its copyrights to indirectly gain commercial control over products DSC does not have copyrighted, then copyright misuse may be present. The grant to the author of the special privilege of a copyright carries out a public policy adopted by the Constitution and laws of the United States, "to promote the Progress of Science and useful arts, by securing for limited Times to [Authors] . . . the exclusive Right . . ." to their "original" works. United States Constitution, Art. I, § 8, cl. 8, 17 U.S.C. § 102. But the public policy which includes original works within the granted monopoly excludes from it all that is not embraced in the original expression. It equally forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office and which is contrary to public policy to grant. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 20:21:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12176 for dvd-discuss-outgoing; Thu, 7 Sep 2000 20:21:40 -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 UAA12173 for ; Thu, 7 Sep 2000 20:21:39 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id UAA20805 for ; Thu, 7 Sep 2000 20:22:29 -0400 (EDT) Date: Thu, 7 Sep 2000 20:22:29 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. In-Reply-To: <39B81E7B.4F6EFD43@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, 7 Sep 2000, Ravi Nanavati wrote: > Tom Vogt wrote: > > > > Eric Seppanen wrote: > > > Call this "abuse of copyright protection systems", perhaps. Would this be > > > a valid legal argument today, even without law that explicitly provides > > > for it? I mean, abuse of copyright isn't codified, is it? > > > > I dimly remember that there is such a thing and that it does mean you lose > > the copyright protection. I think it was mentioned briefly with regards to > > the RIAA, maybe in the napster case. hopefully, this jogs someone's memory > > who can provide the details? > > Yes. One of the Napster briefs (the first authored by David Boies) > talks extensively about copyright misuse. It is available at: > http://dl.napster.com/opposition.pdf > > The part on copyright misuse starts is on pages 22-26 > or 23-27 (depending on whether you use the brief's page > numbers or Acrobat's, respectivel). There's probably more > along the same lines in Napster's other legal filings, > but I don't know of a place where they are collected. Unfortunately, the second circuit may not recognize the doctrine of "copyright misuse." See http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/note.html#N86http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/note.html#N86 Footnote 86: The 4th, 5th, and 9th Circuits have explicitly recognized the doctrine of copyright misuse, while the 1st and Federal Circuits have cited Lasercomb with approval but have not applied the doctrine. DSC Communications Corp. v. DGI Technologies, Inc., 81 F.3d 597 (5th Cir. 1996); Triad Systems Corp. v. Southeastern Exp. Co., 64 F.3d 1330 (9th Cir. 1995); Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147 (1st Cir. 1994); Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed. Cir. 1992). The 2660 case is, of course, in the second circuit, and the DVDCCA case is California State (9th Circuit, if there's any chance of getting the federal circuit courts involved, which to my nonlawyerly brain, is doubtful). So, copyright misuse is not an established doctrine in either of the two venues. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 21:09:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12600 for dvd-discuss-outgoing; Thu, 7 Sep 2000 21:09:51 -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 VAA12597 for ; Thu, 7 Sep 2000 21:09:50 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id UAA17082 for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 20:10:38 -0500 Date: Thu, 7 Sep 2000 20:10:38 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. Message-ID: <20000907201038.A17053@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39B81E7B.4F6EFD43@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1us In-Reply-To: ; from jerwin@osf1.gmu.edu on Thu, Sep 07, 2000 at 08:22:29PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 08:22:29PM -0400, Jeremy A Erwin wrote: > > Unfortunately, the second circuit may not recognize the doctrine of > "copyright misuse." See > http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/note.html#N86http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/note.html#N86 > > Footnote 86: > The 4th, 5th, and 9th Circuits have explicitly recognized the doctrine of > copyright misuse, while the 1st and Federal Circuits have cited Lasercomb > with approval but have not applied the doctrine. DSC Communications > Corp. v. DGI Technologies, Inc., 81 F.3d 597 (5th Cir. 1996); Triad > Systems Corp. v. Southeastern Exp. Co., 64 F.3d 1330 (9th Cir. 1995); Data > General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147 (1st > Cir. 1994); Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 > (Fed. Cir. 1992). This seems pretty weak, but a paper on "trademark misuse" at http://sdavidson.com/html/tm-misuse.htm briefly touches on copyright abuse, and says, "The copyright misuse doctrine had been recognized, at least implicitly, for almost as long as the patent misuse doctrine. See, e.g., Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 105­106 (2d. Cir. 1951) (in a copyright action, "the anti-trust 'unclean-hands defense'" involves enforcing the antitrust laws while "taking into account the comparative innocence or guilt of the parties, the moral character of their respective acts, the extent of the harm to the public interest . . . .") However, it was not until 1990 that the United States Court of Appeals for the Fourth Circuit issued what has come to be known as the preeminent copyright misuse decision: Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990)." Note that their example case is in the second circuit. It's at http://www.allrise.com/copyright/cases/191F2D99.html From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 21:19:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12795 for dvd-discuss-outgoing; Thu, 7 Sep 2000 21:19:18 -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 VAA12792 for ; Thu, 7 Sep 2000 21:19:17 -0400 Received: from swbell.net ([64.216.209.193]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0J00GWNN61X1@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 7 Sep 2000 20:08:25 -0500 (CDT) Date: Thu, 07 Sep 2000 20:00:12 -0500 From: Jolley Subject: Re: [dvd-discuss] CSS vs. Access Control To: dvd-discuss@eon.law.harvard.edu Message-id: <39B83A1C.3C9362B1@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: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> <200009070958.FAA02664@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > Eric Eldred writes: > > On Thu, Sep 07, 2000 at 12:09:16AM -0500, Jolley wrote: > > > [this is good stuff here...] > > > > > On page 423. > > > 24 ... there is no right to make a > > > 25 copy of a movie. There just isn't. And we want to protect > > > 1 our movies now and into the future. > > > > > > So, CSS is copy protection not access control. > > > > Or it's not even copy protection, but an attempt to > > prevent the user from "unauthorized" use ... > > By George, I think he's got it! Remember Dean Marks' thorough, > detailed explanation of the process that led to CSS --- it's at > > http://eon.law.harvard.edu/archive/dvd-discuss/msg07804.html > > Marks is quite explicit that CSS is intended to function, itself, > *only as a contractual hook for other mechanisms*, including, say, > Macrovision and the lack of digital output(!) for copy control. > (He cites both explicitly, at the end of the quoted text). > > Any "protection" it provides on its own --- either access control or > copy control --- is strictly incidental. > So, CSS is not access control and it's not copy control. Do we even care if it's speech? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 21:41:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13023 for dvd-discuss-outgoing; Thu, 7 Sep 2000 21:41:22 -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 VAA13020 for ; Thu, 7 Sep 2000 21:41:21 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id VAA00374; Thu, 7 Sep 2000 21:42:04 -0400 Date: Thu, 7 Sep 2000 21:42:04 -0400 From: Jim Bauer Message-Id: <200009080142.VAA00374@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Proof of purchase - was Trade Secrets cannot bar RE 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 Jeremy A Erwin wrote: >On Thu, 7 Sep 2000, Frank Andrew Stevenson wrote: > >> >> Perhaps it would be more fruitful to waste time on the 'proof of purchase' >> cupon found on the inside of some DVDs. Do they signify a sale, or are >> they there so you can get replacement media, when it wears out - >> perhaps signifying a purchased right to view on approved devices? > >I think the "proof of purchase" has a far more prosaic use-- special >discounts. My copy of the Matrix had some sort of "get 5 bucks off the >soundtrack" offer attached. Warner Bros. also had some sort of "buy 5 ^^^^ Did it really say that? By their own claims, should they not have said "license"? >movies, get the sixth one free" discount program. > >But I'm naive and unexperienced. Perhaps there is some sinister motive I'm >not aware of. (Besides encouraging higher consumption rates and building a >mailing list.) > >Jeremy Erwin > -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 21:54:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13183 for dvd-discuss-outgoing; Thu, 7 Sep 2000 21:54:33 -0400 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA13180 for ; Thu, 7 Sep 2000 21:54:33 -0400 Received: from 208-58-195-107.s107.tnt10.lnhva.md.dialup.rcn.com ([208.58.195.107]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13XDNy-0002dv-00 for dvd-discuss@eon.law.harvard.edu; Thu, 07 Sep 2000 21:55:23 -0400 Date: Thu, 07 Sep 2000 21:54:29 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Proof of purchase - was Trade Secrets cannot bar RE 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, 7 Sep 2000, Jim Bauer wrote: > Date: Thu, 7 Sep 2000 21:42:04 -0400 > To: dvd-discuss@eon.law.harvard.edu > From: Jim Bauer > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Proof of purchase - was Trade Secrets cannot > bar RE > > Jeremy A Erwin wrote: > >On Thu, 7 Sep 2000, Frank Andrew Stevenson wrote: > > > >> > >> Perhaps it would be more fruitful to waste time on the 'proof of > purchase' > >> cupon found on the inside of some DVDs. Do they signify a sale, or are > >> they there so you can get replacement media, when it wears out - > >> perhaps signifying a purchased right to view on approved devices? > > > > >I think the "proof of purchase" has a far more prosaic use-- special > >discounts. My copy of the Matrix had some sort of "get 5 bucks off the > >soundtrack" offer attached. Warner Bros. also had some sort of "buy 5 > ^^^^ > > Did it really say that? By their own claims, should they not > have said "license"? > The tabs read "PROOF OF PURCHASE 17737A" through "PROOF OF PURCHASE 17737D". The film "The Matrix" is distributed through Warner Bros. The disc reads "WIDESCREEN 17737 Region 1, 136 MINS. US R CANADA 14A NO COPYING. SUBJECT TO APPLICABLE LAWS." Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 7 22:43:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13515 for dvd-discuss-outgoing; Thu, 7 Sep 2000 22:43:41 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA13512 for ; Thu, 7 Sep 2000 22:43:40 -0400 Message-ID: <20000908024400.10049.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Thu, 07 Sep 2000 19:44:00 PDT Date: Thu, 7 Sep 2000 19:44:00 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] misuse, Alcatel v. DGI To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 the [para]copyright misuse topic, I didn't see Alcatel v. DGI > mentioned in the archives, so I figured I'd toss a few juicy quotes > out there. I had some trouble getting through, so here's another link: http://caselaw.findlaw.com/scripts/getcase.pl?court=5th&navby=case&no=9711339CV0v2&exact=1 I had read the part of this about trade secrets, but moved on because they found improper means were used. I REALLY should have read the whole case carefully because this is a very good opinion for us. The copyright misuse stuff you quote is very similar to the DVD situation. I don't understand why misuse wasn't used as a defence in NY. Oh well, there is still CT. Maybe you could use an unclean hands defense in CA, since the clickwrap supposedly grants a copyright licence as consideration, which isn't needed if there is misuse. There is also this little bit... Under section 117 of the Copyright Act, DGI could have avoided liability for contributory infringement by proving that its customers owned copies of the DSC operating system software, and were therefore authorized to make additional copies, provided such reproduction was 'an essential step in the utilization of the computer program.' In a specific interrogatory, however, the jury found that DGI did not prove by a preponderance of the evidence that DSC switch owners owned 77 copies of DSC software. [Footnote 77] We are aware of opinions by this court and others in which the reproduction of computer programs by licensees has been held to come within the § 117 exception. See Vault Corp. v. Quaid Software Ltd. , ... ; DSC Communications Corp. v. Pulse Communications Inc. ... Because DGI did not appeal the jury's finding of non-ownership in the instant case, however, we save for another day the task of defining the contours of the term "owner" as it is used in § 117. Dammit!! Why didn't they appeal that? It appears that the case is remanded -- has the window closed on such an appeal? All in all, it really seems like the 5th Circuit is where we want to be fighting these battles. [hint to Pavlovich ...] __________________________________________________ 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 Sep 7 23:04:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14003 for dvd-discuss-outgoing; Thu, 7 Sep 2000 23:04:05 -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 XAA14000 for ; Thu, 7 Sep 2000 23:04:04 -0400 Message-ID: <20000908030424.23961.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Thu, 07 Sep 2000 20:04:24 PDT Date: Thu, 7 Sep 2000 20:04:24 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] The DMCA is a "plugin" to replace copyright law. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy A Erwin wrote: > The 4th, 5th, and 9th Circuits have explicitly recognized the > doctrine of copyright misuse, while the 1st and Federal Circuits have > cited Lasercomb with approval but have not applied the doctrine. > The 2660 case is, of course, in the second circuit, and the DVDCCA > case is California State (9th Circuit, if there's any chance > of getting the federal circuit courts involved, which to my > nonlawyerly brain, is doubtful). That's why I was reading Kewanee v. Bicron so intently -- if you make the argument that a trade secret butressed by a no RE clickwrap is preempted by Federal patent law, guess where you go? And when you get there, you immediately throw out the clickwrap as a non-contract by citing Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) for the Step-Saver idea that "The failure to obtain the purchaser's express assent to those terms indicates the seller's agreement to do business on other terms -- those expressly agreed upon by the parties." Oh, and I think that Arizona Retail Systems v. The Software Link, Inc., 831 F. supp. 759 (D. AZ 1993) is a 9th Circuit case too: "To the extent that the parties had entered into an agreement before ARS opened the shrink wrap package, the license agreement would constitute a proposal for modification of the agreement pursuant to section 2-209 [of the UCC]. Section 2-209 requires assent to proposed modifications and this court, like the court in Step-Saver, concludes that the assent must be express and cannot be inferred merely from a party's conduct in continuing with the agreement. " In our case, the prior agreement would be the contract of sale -- I understand that XingDVD is purchased directly from Xing. If there's no contract of sale with Xing to modify, then there is no consideration from Xing, since you're saying you already "own" the software and 117 let's you install without a licence. __________________________________________________ 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 Sep 8 00:16:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA14750 for dvd-discuss-outgoing; Fri, 8 Sep 2000 00:16:38 -0400 Received: from web119.yahoomail.com (web119.yahoomail.com [205.180.60.120]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA14747 for ; Fri, 8 Sep 2000 00:16:37 -0400 Received: (qmail 13602 invoked by uid 60001); 8 Sep 2000 04:17:17 -0000 Message-ID: <20000908041717.13601.qmail@web119.yahoomail.com> Received: from [216.165.4.129] by web119.yahoomail.com; Thu, 07 Sep 2000 21:17:17 PDT Date: Thu, 7 Sep 2000 21:17:17 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] Web site's sale of DeCSS T-Shirt draws legal wrath To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu T-Shirt Riles DVD Copyright Cops by Sam Costello, IDG News Service September 7, 2000, 6:50 a.m. PT http://www.pcworld.com/cgi-bin/pcwtoday?ID=18360 __________________________________________________ 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 Sep 8 01:30:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA15385 for dvd-discuss-outgoing; Fri, 8 Sep 2000 01:30:14 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA15382 for ; Fri, 8 Sep 2000 01:30:13 -0400 Received: from ip225.bedford3.ma.pub-ip.psi.net ([38.32.11.225]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13XGkh-0001sh-00 for dvd-discuss@eon.law.harvard.edu; Fri, 08 Sep 2000 01:31:03 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Assessing Linking Liability Date: Fri, 08 Sep 2000 01:33:38 -0400 Message-ID: <8bugrsk4fl8pb1fv6r7gmon1ruphrafqqd@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 BAA15383 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Carl Kaplan has a good piece today on Kaplan's linking decision-- http://www.nytimes.com/2000/09/07/technology/08CYBERLAW.html "Depending on whom you talk to, Judge Kaplan's reasoning is either a swipe at the First Amendment, which may protect Internet links as a form of expression, or it is a reasonable rule of thumb that balances the rights of speakers and intellectual property owners in the digital age. Still, at least a few things seem clear, according to legal experts. For one thing, Judge Kaplan's attempt to distinguish between good and bad links is novel. " __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 04:41:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA16945 for dvd-discuss-outgoing; Fri, 8 Sep 2000 04:41:12 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA16942 for ; Fri, 8 Sep 2000 04:41:05 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Fri, 08 Sep 2000 16:41:07 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 8 Sep 2000 16:34:26 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0372A5@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'jms@uic.edu'" Cc: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] The DMCA is a "plugin" to replace copyright law . Date: Fri, 8 Sep 2000 16:34:23 +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 Any chance of you declaring this public domain? I was thinking perhaps the dangers could be shown be expanding upon this to show what a world would be like if (when) companies maximize their profits in this way (which their shareholders have the legal right to demand that they do). cya, Andrew... > -----Original Message----- > From: John Schulien [SMTP:jms@uic.edu] > Sent: Friday, September 08, 2000 1:17 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] The DMCA is a "plugin" to replace copyright > law. > > Michael Rolenz writes: > > BTW- "promoting new technologies" - They > > really don't understand what that means. > > Sure they understand! My latest slashdot rant ... > > We all understand the concept of a plugin in software. > If you want to watch a flash file, you have to download > the plugin that allows you to do so. Then, when you open > a flash file, the flash plugin takes over and your computer > does exactly what the author of the flash file wants it to do. The information transmitted is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, copying or other use of, or taking any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this in error, please contact the sender and delete the material from your system. Utility Services Corporation (USC) is not responsible for any changes made to the material other than those made by USC or for the effect of the changes on the material’s meaning. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 04:51:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA17493 for dvd-discuss-outgoing; Fri, 8 Sep 2000 04:51:09 -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 EAA17490 for ; Fri, 8 Sep 2000 04:51:08 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id CAA03691 for ; Fri, 8 Sep 2000 02:51:58 -0600 Date: Fri, 8 Sep 2000 02:51:58 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My letter to the Honorable Lamar Smith In-Reply-To: <20000907222020.E15065@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 Better yet, bring it up during your House member's campaigning--this is a year in which they have to look like they're listening to the voters...or find out in nov that the voters didn't listen much to them... On Thu, 7 Sep 2000, Tom Vogt wrote: > Bryan Taylor wrote: > > I just sent the email below to my House representative. > > It's pretty easy to do this online at the sight > > you might want to send the text again in a physical letter - I've heard at > lots of places now that e-mails are just counted, not actually read, much > less by the senator or whatever he's called. > > > -- 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 Fri Sep 8 09:48:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19662 for dvd-discuss-outgoing; Fri, 8 Sep 2000 09:48:55 -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 JAA19659 for ; Fri, 8 Sep 2000 09:48:54 -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 JAA29902 for ; Fri, 8 Sep 2000 09:49:45 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA14399; Fri, 8 Sep 2000 09:49:45 -0400 (EDT) Date: Fri, 8 Sep 2000 09:49:45 -0400 (EDT) Message-Id: <200009081349.JAA14399@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Proof of purchase - was Trade Secrets cannot bar RE Newsgroups: local.dvd-discuss In-Reply-To: <200009080142.VAA00374@emperor.hwrd1.md.home.com> References: <200009080142.VAA00374@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: > >I think the "proof of purchase" has a far more prosaic use-- special > >discounts. My copy of the Matrix had some sort of "get 5 bucks off the > >soundtrack" offer attached. Warner Bros. also had some sort of "buy 5 > ^^^^ > > Did it really say that? By their own claims, should they not > have said "license"? They're not claiming that it is a license; they've effectively stipulated in court that there *is* no license on a DVD. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 09:58:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20470 for dvd-discuss-outgoing; Fri, 8 Sep 2000 09:58:02 -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 JAA20467 for ; Fri, 8 Sep 2000 09:58:02 -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 JAA00776 for ; Fri, 8 Sep 2000 09:58:53 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA14418; Fri, 8 Sep 2000 09:58:53 -0400 (EDT) Date: Fri, 8 Sep 2000 09:58:53 -0400 (EDT) Message-Id: <200009081358.JAA14418@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B83A1C.3C9362B1@swbell.net> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> <200009070958.FAA02664@soggy-fibers.ai.mit.edu> <39B83A1C.3C9362B1@swbell.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tjolley@swbell.net writes: > So, CSS is not access control and it's not copy control. Do we even > care if it's speech? Well, it depends on goals. The speech argument effectively removes software from the scope of the law, if a court buys it. The "authorized person" argument removes CSS the scope of the law, and looks surer to my biased (and untrained) eyes, but leaves it applicable to software. The two arguments aren't incompatible. FWIW, it's been suggested to me in private email that if you want the court to toss the law altogether (e.g., on the fair use argument) that that can be a reason to avoid arguments that give judges a less extreme alternative. My personal view is that the "indefinite patent" aspect of the MPAA's view of the law is the worst thing about it --- "authorized person" access controls predate the law by years, getting rid of the law won't get rid of them, and as long as "circumvention" is defined properly, as *gaining access without authorization* (and not as providing an alternate, functionally equivalent implementation), we've won this round. But, I'm presuming, perhaps wrongly, that that outcome wouldn't prejudice a subsequent, broader challenge to the law on fair use grounds in a case more suited for it (e.g., a library media-shifting DVD-only "extras", like director's cuts, "making of" shots, and interviews, onto VHS for the benefit of their patrons). I guess this is something about which reasonable people can disagree. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 09:59:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20496 for dvd-discuss-outgoing; Fri, 8 Sep 2000 09:59:23 -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 JAA20493 for ; Fri, 8 Sep 2000 09:59:22 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13XOhP-0002rO-00 for dvd-discuss@eon.law.harvard.edu; Fri, 8 Sep 2000 16:00:11 +0200 Date: Fri, 8 Sep 2000 16:00:11 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Great article from Suck 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 For the few that wouldn't otherwise spot this on slashdot: http://www.suck.com/daily/2000/09/08/ frank From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 10:01:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA20672 for dvd-discuss-outgoing; Fri, 8 Sep 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 KAA20668 for ; Fri, 8 Sep 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 KAA01124 for ; Fri, 8 Sep 2000 10:02:40 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA14431; Fri, 8 Sep 2000 10:02:39 -0400 (EDT) Date: Fri, 8 Sep 2000 10:02:39 -0400 (EDT) Message-Id: <200009081402.KAA14431@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control In-Reply-To: <39B82548.5B64F0B3@swbell.net> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> <200009070958.FAA02664@soggy-fibers.ai.mit.edu> <39B82548.5B64F0B3@swbell.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tjolley@swbell.net writes: > If Kaplan has bullied one of the defendent's lawyers into agreeing > that CSS protects access to a copyrighted work, does that destroy any > arguments we have here to the contrary? FWIW, the defense brief contained a version of the "authority" argument, so it appears to me at least that the answer is no. BTW, note this exchange: > > MR. LEVY: Essentially, your Honor, our reading of the DMCA, certainly > > in order to make it a constitutional reading, is that it does not > >=> outlaw any type of decryption. It only outlaws decryption that affects > > copyrighters' rights, and to that extent the two are read together; > > that is, it is not the case that as soon as you engage in the science > > of cryptology you have violated the DMCA, though certainly those raise > > other constitutional issues. That's essentially what we are saying. Is > > that clear? > > > > THE COURT: What you've said is clear. It's just very different from > > what Congress said. > > > >[ ... ] > > > > THE COURT: It says that you can't offer to the public any technology, > > product, service, etc., that's primarily designed or produced for the > > purpose of circumventing a technological measure that effectively > > controls access to a protected work. Now, is there any doubt that CSS > > protects access to a copyrighted work? Is there any at all? Note that Kaplan assumes that anything involving encryption is "effective access control" by definition, as the plaintiffs were arguing. Just not true --- think signatures. Ms. Gross's concession was based on this bullying... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 11:46:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21821 for dvd-discuss-outgoing; Fri, 8 Sep 2000 11:46:33 -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 LAA21818 for ; Fri, 8 Sep 2000 11:46:31 -0400 Received: from cdpage.com (jdsl223.dnvr.uswest.net [206.196.156.223]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id IAA27800 for ; Fri, 8 Sep 2000 08:47:41 -0700 (PDT) Message-ID: <39B907B7.C09E85CD@cdpage.com> Date: Fri, 08 Sep 2000 09:37:27 -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] Great article from LewRockwell.com 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 Fr http://www.lewrockwell.com/north/north14.html -- Dana J. Parker DVD Diva http://www.cdpage.com mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 13:17:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23802 for dvd-discuss-outgoing; Fri, 8 Sep 2000 13:17:12 -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 NAA23799 for ; Fri, 8 Sep 2000 13:17:11 -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 NAA04058; Fri, 8 Sep 2000 13:18:02 -0400 (EDT) Message-ID: <39B91FE1.EDCA0A3C@mit.edu> Date: Fri, 08 Sep 2000 13:20:34 -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: [dvd-discuss] Image format for scanned report? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Now that the report and the SCSI parts I need have arrived, I'm going to be scanning in (and putting up) the first 25 pages of the Judiciary committee report that Kaplan relied on (and Robert Thau has been commenting on). Before I did that I wanted to take a quick poll to find out what format people wanted the report in. I'm limited in what I can do because (for reasons not worth getting into) I need to use SANE on FreeBSD on an old machine (so, for example, I can't do fancy OCR tricks), but I will do my best to make the images I put up convenient to read. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 13:23:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24082 for dvd-discuss-outgoing; Fri, 8 Sep 2000 13:23:20 -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 NAA24079 for ; Fri, 8 Sep 2000 13:23:18 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id KAA01608 for ; Fri, 8 Sep 2000 10:24:04 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma001434; Fri, 8 Sep 00 10:22:51 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id LAA24571; Fri, 8 Sep 2000 11:22:50 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] FW: Objections to Time-Warner Reply Date: Fri, 8 Sep 2000 11:27:45 -0600 Message-ID: <000201c019ba$19a614a0$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 Here is my comments regarding Time Warner's reply. -----Original Message----- From: John Zulauf Sent: Friday, September 08, 2000 11:21 AM To: jfed@loc.gov Subject: Objections to Time-Warner Reply As one of the respondents to "Comments in Docket No. 000522150-0150-01 with respect to Sections 109 and 110(7)" I would like to strenuously object to Time Warner's reply comments. In fine rhetorical style they characterize the legitimate concern of citizens regarding the gross overreach of the media companies as "baseless conjectures on which much of the Comments rely. " and "a chimera made up of suppositions and predictions about future behavior of content owners" Time-Warner reply comments at page 1 paragraph 1 This is simply a bold-faced lie as regard my comments specifically. http://www.loc.gov/copyright/reports/studies/dmca/comments/Init011.pdf The concerned, detail, line-by-line exegesis of the CPSA proposal comprising my initial comments is drawn not from conjecture. Instead it is from serious proposal before the DVD-CCA by 4 of the most influential technology companies comprising Intel Corporation, International Business Machines Corporation, Matsushita Electric Industrial Co., Ltd. and Toshiba Corporation -- the 4C. It is clear from context of that proposal, that the 4C are addressing specific requirements, plans, and concerns of the media companies in order to best position their technology for adoption. Given the licensing fees implied and the time-to-market advantage of a winning proposal the 4C are strongly motivated to best match the expressed demands of their target audience, the media companies. Time-Warner would have you either believe these proposals do not exist, or that they are utterly mistargeted at the true intentions of the media companies. I have too great a respect for the intelligence of the 4C authors of that proposal (the CPSA) to simply dismiss this proposal as a conjectural chimera. The recent behavior of the media companies further enforces the non-conjectural nature of the concerns dismissed by Time Warner as "chimera." Hauntingly, Time Warner's own comment refers to copyright holders by the self-same language of the CPSA proposal -- "content owners" (Time-Warner reply comments at page 1 paragraph 3). Further, the media companies including Time-Warner have lobbied strenuously before the FCC to require encryption of all inter-connections between HDTV hardware and to prevent recording of broadcast digital content. These again are in clear harmony with the CPSA proposal, and threaten traditional home recording and fair-use rights in yet a broader context. Far from chimera it is clear that the concerns of many of the respondent are based in fact, and reflect the current, expansive, and active goals of the media companies to eradicate traditional fair use and strongly curtail first sale rights. Additionally it is clear that Time Warner's comments far from expressing reality, would have the Librarian of Congress ignore current events. Time Warner claims in the following quote that they have no intention to restrain either first sale or fair use rights. "Many of the Comments make the assertion that content owners will encrypt digital works and refuse to allow decryption in order to prevent fair use and/or to impose unreasonable terms on those wanting to make authorized use of the copyrighted work. Quite apart from the irrelevance of that contention to this inquiry, it is without basis. Certainly today, when a work is made available in digital format (and assuming for purposes of discussion that the work is not available in analog format), the distributor of that work is not only willing but eager to have the work decrypted by consumers for viewing and/or listening. To do otherwise – to refuse to allow decryption or to charge an unreasonable fee – would be a suicidal business practice." Time-Warner reply comments at page 1 paragraph 4 (continued on page 2) While excellent rhetoric, it ignores the facts of the current behavior and statements of Time Warner and the media companies. First is the claim that "content owners" would allow decryption for fair use. This flies in the face of the recent lawsuit of Time Warner (among others) prohibiting the distribution of DeCSS. As the DVD CSS implementation and licensing agreement utterly prohibit fair use access to the clear-text of a DVD, the only means to exercise fair use is to decrypt the content by other means. >From Time Warner's comments above it would seem that they would welcome the presence of a tool that enables fair use. Instead, they have brought lawsuit to prevent it's distribution (and the any other tool capable of fair-use access to DVD content) claim the exclusive right to license the decryption. This of course is a "Catch-22" -- you can have fair use if you can have access, but by contractual means they prohibit authorized devices from providing fair use access, and by legal (both civil and criminal) means they prohibition the creation or distribution of any other means. Further, the DeCSS legal action is specifically targeted at restricting the rights of legitimate owners of authorized copies of copyright media. Were CSS a pay-per-view system where additional compensation flows to the copyright holder for each access this concern might be rational. However, CSS allows unlimited viewing and only viewing after first sale. Thus is a post first sale constraint on the fair use of the published content. Far from a "suicidal business practice" (Time Warner above) it is their current business model which they are fighting strenuously to defend and extend. Within the record of the DMCA hearings and comment before the Library of Congress is much to support this understanding of the media companies' true purpose. Marks, Sorkin and others consistently argue they must have full control over access to digital media, even past first sale or broadcast. The media companies have consistently cast first sale and fair use rights in the narrowest possible terms, all the while raising the specter of "infinite, internet, reproducibility." It is they and not the concerned individual citizenry of these many comments who create a chimera consisting of imagination and conjecture void of the constraints of reality. Do the limitations on citizens rights truly protect them from commercially significant piracy of digital content? Referencing "Sony v. Universal," clearly not. That threat comes not from the citizenry, but from dedicate criminal pirates unaffected and unconcerned by either the technological and legal restraints implied. Is digital content uniquely at risk? Again with the wide, easy, availability of audio and video digitization hardware analog content can just as readily find it's way to the Internet. I am personally digitizing my LP phonograph collection at a cost of less than $500 of hardware and software. While I have no intention to illegal distributing these transcriptions, they show that the risk of "infinite, internet, reproducibility" while real is neither unique nor even meaningfully greater for digital content. It is the tools of digital recording and reproduction which posed the risk, not the digital or analog nature of the copyright work. Clearly Time-Warner is not being honest. The standard of "false in on thing, false in all" should be applied to the whole of their comments. They should be dismissed as false, self-serving, and not in the public interest. The principal here is "to promote progress in the useful arts" -- not to promote or support the business models of Luddites, buggy-whip manufacturers, or media companies who would constrain the rights of the citizenry rather than adapt to the changing economic and technological realities surrounding them. Thank for you for your efforts in this matter, John M. Zulauf private citizen and information technology professional From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 13:24:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24183 for dvd-discuss-outgoing; Fri, 8 Sep 2000 13:24:41 -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 NAA24177 for ; Fri, 8 Sep 2000 13:24:39 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13XRu5-0007Wz-00; Fri, 8 Sep 2000 19:25:29 +0200 Received: from localhost by sites.inka.de with local id 13XRu7-0005A5-00; Fri, 8 Sep 2000 19:25:31 +0200 Date: Fri, 8 Sep 2000 19:25:31 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Image format for scanned report? Message-ID: <20000908192531.A17655@inka.de> References: <39B91FE1.EDCA0A3C@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39B91FE1.EDCA0A3C@mit.edu>; from ravi_n@mit.edu on Fri, Sep 08, 2000 at 01:20:34PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 08, 2000 at 01:20:34PM -0400, Ravi Nanavati wrote: > Now that the report and the SCSI parts I need have arrived, > I'm going to be scanning in (and putting up) the first > 25 pages of the Judiciary committee report that Kaplan relied on > (and Robert Thau has been commenting on). Before I did that > I wanted to take a quick poll to find out what format people > wanted the report in. I'm limited in what I can do because > (for reasons not worth getting into) I need to use SANE on > FreeBSD on an old machine (so, for example, I can't do fancy > OCR tricks), but I will do my best to make the images I > put up convenient to read. If it's raw text, then something with 1 bit per pixel and some sort of lossless compression. TIFF should be quite well suited. Whatever you do avoid JPEG for this sort of thing, it's called Joint *Photographic* Experts Group for a reason. 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 Sep 8 15:20:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25956 for dvd-discuss-outgoing; Fri, 8 Sep 2000 15:20:45 -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 PAA25953 for ; Fri, 8 Sep 2000 15:20:44 -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 OAA06346 for ; Fri, 8 Sep 2000 14:21:35 -0500 (CDT) Message-ID: <39B93C50.AD4D09A0@uic.edu> Date: Fri, 08 Sep 2000 14:21:52 -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] The DMCA is a "plugin" to replace copyright law. Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sure. I waive copyright on my rant and place it in the public domain. Feel free to do with it as you like. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 15:31:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26214 for dvd-discuss-outgoing; Fri, 8 Sep 2000 15:31:18 -0400 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA26211 for ; Fri, 8 Sep 2000 15:31:16 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id PAA24260 for ; Fri, 8 Sep 2000 15:32:08 -0400 (EDT) Date: Fri, 8 Sep 2000 15:32:08 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] what does a directive not to publish mean? Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I was looking through Lexis Nexis, and came across this case: Accuson v Aloka, 209 Cal. App. 3d 425; 1989 Cal. App. LEXIS 317; 257 Cal. Rptr. 368; 10 U.S.P.Q.2D (BNA) 1814 (1989) which was prefaced by this odd little directive: "NOTICE: NOT CITABLE - ORDERED NOT PUBLISHED SUBSEQUENT HISTORY: [*1] Modification of Opinion on Denial of Rehearing May 3, 1989; Review denied June 22, 1989 and Reporter of Decisions directed not to publish this opn. in the Official Reports (Cal. Const., art. Vi, 14; rule 976, Cal. Rules of Ct.). PRIOR HISTORY: [*1] " It is an interesting case, that, were it not for this directive, might be properly used in the DVDCCA v Internet case . The case concerned an ultrasonic scanner that was reverse engineered by a rival by means that the original manufacturer alleged were improper. Namely, the defendent broke a lock and didn't abide by a contract that was never signed in the first place. (while reading Lexis's cases on California Trade secret Law, I have come to the conclusion that the utility of such a law is to prevent comapnies from aquiring trade secrets through bribery, larceny, or espionage. The few times in which reverse engineering claims have failed are cases in which the defendent companies falsified evidence of reverse engineering to defend themselves from such suits.) Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 16:16:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA28962 for dvd-discuss-outgoing; Fri, 8 Sep 2000 16:16:46 -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 QAA28959 for ; Fri, 8 Sep 2000 16:16:44 -0400 Received: from ppp.anonymizer.com (c06-147.015.popsite.net [64.24.77.147]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id NAA23407 for ; Fri, 8 Sep 2000 13:19:29 -0700 (PDT) Message-Id: <4.3.2.7.2.20000908124600.00d41c50@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Fri, 08 Sep 2000 13:17:27 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] what does a directive not to publish mean? 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 03:32 PM 9/8/2000 -0400, Jeremy A Erwin wrote: >I was looking through Lexis Nexis, and came across this case: Accuson v >Aloka, 209 Cal. App. 3d 425; 1989 Cal. App. LEXIS 317; 257 >Cal. Rptr. 368; 10 U.S.P.Q.2D (BNA) 1814 (1989) which was prefaced by this >odd little directive: >"NOTICE: NOT CITABLE - ORDERED NOT PUBLISHED > >SUBSEQUENT HISTORY: [*1] Modification of Opinion on Denial of Rehearing >May 3, 1989; Review denied June 22, 1989 and Reporter of Decisions >directed not to publish this opn. in the Official Reports (Cal. Const., >art. Vi, 14; rule 976, Cal. Rules of Ct.). The great majority of appellate decisions, federal and state (at least California, I don't know that much about practices in other states) are not officially published. If an Opinion is not officially published, of course it still is binding on the parties, but it cannot be cited as precedent by others in other cases. (Interestingly, the federal 8th Circuit Court of Appeals just adopted a fairly controversial rule that unpublished opinions can be relied on as precedent.) The historical reason for the rule is fairly sensible. Regardless of state or federal court, everyone has one right to an automatic appeal. This means that appellate courts are issuing decisions on matters which have been decided a hundred times before, and the decision adds nothing of substance to the relevant body of law. Couple that with the fact that, until recently, decisions were only available in paper form (or at a rather large cost through Wexis), you have an ecologically friendly rule, though the ecology was not what courts had in mind when they adopted such rules. I'm semi-guessing, but a complete set of the California published cases, appellate and supreme courts, likely would take up about 200 shelf/feet, and that's with something like 80% of lower appellate court decisions not being published. Of course, that's just state court, not federal Ninth Circuit cases that originate in California. (And the Ninth, unlike the Eighth, will squash you like a bug if you cite to one of its unpublished Opinions.) Leaving aside whether an appellate court makes the right decision to publish or not publish in a specific instance, generally it is a reasonable system, though with cases becoming more available in non-paper media, practices may change. However, what you stumbled on here is a fairly controversial, widely criticized practice of the California Supreme Court. What happened was that the lower appellate court certified the opinion for publication, one side or the other (I haven't looked at the case itself) sought review by the Cal. Supremes. Presumably (this is what usually happens in such a case), the Cal. Supremes were less than comfortable with the rule of law stated in the appellate court opinion. However, rather than granting review, hearing and deciding the matter, the Cal. Supremes ordered the appellate court opinion decertified for publication. Thus, they removed the precedent without addressing what they may have seen as a flaw in the Opinion, and without addressing how that flaw affected the actual parties to the litigation. In very recent years, the Cal. Supremes have backed off this somewhat from the heyday of the practice, but they still do it. So the specific answer is that since the appellate opinion was officially decertified by the Cal. Supremes, you cannot cite to the appellate opinion as precedent. You can argue the logic of it, but you can't cite the case for any point of law. It is a nullity for all but the parties 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 Sep 8 16:25:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA29427 for dvd-discuss-outgoing; Fri, 8 Sep 2000 16:25:38 -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 QAA29424 for ; Fri, 8 Sep 2000 16:25:25 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA05763 for dvd-discuss@eon.law.harvard.edu; Fri, 8 Sep 2000 16:26:53 -0400 Date: Fri, 8 Sep 2000 16:26:48 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] [DHale@aggt.com: Re: Summers v Tice (and Copyright?)]` Message-ID: <20000908162648.A5377@eldritchpress.org> Mime-Version: 1.0 Content-Type: multipart/mixed; boundary="azLHFNyN32YCQGCU" 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 --azLHFNyN32YCQGCU Content-Type: text/plain; charset=us-ascii forwarded from the cni-copyright@cni.org list... --azLHFNyN32YCQGCU Content-Type: message/rfc822 Content-Transfer-Encoding: 8bit Return-Path: Received: from localhost (root@localhost [127.0.0.1]) by eldritchpress.org (8.8.7/8.8.7) with ESMTP id QAA05614 for ; Fri, 8 Sep 2000 16:17:27 -0400 Received: from pop.ne.mediaone.net by fetchmail-4.5.8 POP3 for (single-drop); Fri, 08 Sep 2000 16:17:32 EDT Received: from chmls16.mediaone.net ([24.147.1.151]) by chmls14.mediaone.net (Netscape Messaging Server 4.15 chmls14 Aug 8 2000 13:22:32) with ESMTP id G0JJ0500.OTY for ; Thu, 7 Sep 2000 19:38:29 -0400 Received: from chmls10.mediaone.net (chmls10.mediaone.net [24.147.1.147]) by chmls16.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA04534 for ; Thu, 7 Sep 2000 19:38:29 -0400 (EDT) Received: from b.cni.org (b.cni.org [192.100.21.6]) by chmls10.mediaone.net (8.8.7/8.8.7) with SMTP id TAA17572 for ; Thu, 7 Sep 2000 19:38:26 -0400 (EDT) Received: from localhost by b.cni.org (5.65v4.0/1.1.10.5/13Aug97-0713PM) id AA22417; Thu, 7 Sep 2000 16:32:09 -0400 Received: from cni.org by b.cni.org (5.65v4.0/1.1.10.5/13Aug97-0713PM) id AA01742; Thu, 7 Sep 2000 12:02:55 -0400 Received: from wodc7mr4.ffx.ops.us.uu.net (paleoalterdial.UU.NET [192.48.96.22]) by cni.org (8.8.7/8.8.7) with ESMTP id KAA20163 for ; Thu, 7 Sep 2000 10:58:45 -0400 Received: from lmoore by wodc7mr4.ffx.ops.us.uu.net with SMTP (peer crosschecked as: [63.72.121.102]) id QQjfqd16223 for ; Thu, 7 Sep 2000 15:59:10 GMT Message-Id: <007501c018e4$d25b9000$6679483f@lmoore> Date: Thu, 7 Sep 2000 12:01:02 -0400 Reply-To: cni-copyright@cni.org Sender: owner-cni-copyright@cni.org Precedence: bulk From: "David Hale" To: Multiple recipients of list Subject: Re: Summers v Tice (and Copyright?) References: <00c301c011cb$f355e5a0$24d9bfa8@1b1iq> <20000901221643.G18143@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" X-To: X-Priority: 3 X-Msmail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2919.6600 X-Mimeole: Produced By Microsoft MimeOLE V5.00.2919.6600 X-Mime-Autoconverted: from 8bit to quoted-printable by cni.org id KAA20164 X-Listprocessor-Version: 8.1 -- ListProcessor(tm) by CREN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eldritchpress.org id QAA05614 While I agree that the DeCSS case is distinguishable from Summers v. Tice in that not al the potential defendants can be joined, I don't think that ultimately this distinction goes anywhere. While the Summers court may have felt differently, more recent cases, in particular the product liability cases stemming from pharmaceuticals which cause birth defects, have held that liability can be placed on known defendants who then have the burden of shifting liability to others - known or unknown. It was not uncommon for pharmaceutical companies to go under some time in the twenty years it took for some of the birth defects to manifest themselves (some defects were second generation only); the courts made the companies still around liable anyway, even if it was not clear that they provided the particular pill that caused the damage, as long as they made pills of that kind. By analogy, the defendants in the DeCSS case are still in trouble. -David Hale ----- Original Message ----- From: "Eric Eldred" To: "Multiple recipients of list" Sent: Friday, September 01, 2000 10:16 PM Subject: Re: Summers v Tice (and Copyright?) Thanks to all who contributed to the discussion of how Summers v Tice might apply to copyright law. Judge Kaplan's opinion in SDNY has been issued: http://eon.law.harvard.edu/openlaw/DVD/NY/opinion.pdf and on pages 82 and 83, footnote 267, he refers to the case: 267 Defendants' argument would lack merit even if there were credible proof that other circumvention devices actually exist and produce results comparable to DeCSS. The available movies must have been decrypted with DeCSS or something else. As far as this record discloses, any such device or technology would violate the DMCA for the same reasons as does DeCSS. In consequence, this case comes within the principle of Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948). Where, as here, two or more persons take substantially identical wrongful actions, one and only one of which had to be the source of the plaintiffs' injury, and it is equally likely that one inflicted the injury as the other, the burden of proof on causation shifts to the defendants, each of which is liable absent proof that its action did not cause the injury. See 4 Fowler V. Harper & Fleming James, Jr., THE LAW OF TORTS §§ 101- 04 (2d ed. 1996). Defendants' efforts to avoid the consequences of this common sense principle are unpersuasive. They argue, for example, that plaintiffs may not invoke the theory unless they join as defendants everyone who may have contributed to the injury. Def. Post-Trial Mem. at 32 n.18 (citing Ex. UZ). It would be difficult to imagine a more nonsensical requirement in the context of this case. Where, as here, harm is done by dissemination of information over the Internet, probably by a substantial number of people all over the world, defendants' proposed rule would foreclose judicial relief anywhere because joinder of all plainly would be impossible in any one place, and technology does not permit identification of which wrongdoer's posting or product led to which pirated copy of a copyrighted work. Do you agree that Kaplan misstates the case? In Summers, there were two persons who fired two shotguns; it was equally likely that one, the other, or both fired them and hit the plaintiff. (The count of pellets was consistent with each conclusion; the fact that defendants fired in the general direction proved negligence; the plaintiff was injured. The tort was found, defendants were guilty of negligence, and it remained to divide damages among the defendants haled into court.) Thus is the judge here wrong in restating the case?-- "Where, as here, two or more persons take substantially identical wrongful actions, one and only one of which had to be the source of the plaintiffs' injury, and it is equally likely that one inflicted the injury as the other, the burden of proof on causation shifts to the defendants, each of which is liable absent proof that its action did not cause the injury. See 4 Fowler V. Harper & Fleming James, Jr., THE LAW OF TORTS §§ 101- 04 (2d ed. 1996)." As Chris points out below, plaintiffs in the DeCSS case do not show any damage, infringement, nor even contributory infringement--they stipulate they cannot do so. They cannot even prove that 2600 has performed any infringement--the case revolves around "trafficking" in a technology, not copyright directly. Testimony revealed that the MPAA had expert investigators who could possibly determine the source of a circumvented movie. However, if the MPAA could not produce this evidence in court, how would 2600 be expected to do so? It even is likely that the supposed infringing movie copies were produced by a method that had nothing to do with CSS or DeCSS. It would seem to me that Summers v Tice leads to the conclusion that plaintiffs must first prove a tort, bring into court all defendants who caused the tort--and only THEN would Summers apply to the case, in having defendants rather than plaintiff be the one to divide. It would seem to be obviously unfair to saddle one defendant with the job of finding and prosecuting any other persons if not in court. And just because Summers might apply in that situation does not mean that the court can leap to the conclusion that plaintiffs have really reached the point where it could apply. Furthermore, the last argument that "joinder of all plainly would be impossible in any one place" goes against the final judgment, which attempts to do exactly that in the case of hyperlinks to DeCSS. Any further thoughts on Summers v Tyce? On Tue, Aug 29, 2000 at 11:15:20AM -0400, Chris Mohr wrote: > > > I'd add one clarification to Professor Ochoa's clarification. Contributory > infringement is not relevant to the question of liability under section > 1201. The DECSS suit, and the injunction flowing therefrom, has to do with > 1201, which is not an action for copyright infringement. See 1201(b) as well > (limiting the applicability of copy control technology). The summers v. > tice discussion (see aug. 17 opinion, note 267) has to do with the scope of > a permissible injunction and whether that injunction should issue. > > In other words, once the violation of 1201 occurs, the irreperable harm > justifying issuance of a PI is assumed. The burden shifts to the defendant > to prove that the circumventing technology is not being used; if it can do > so, the balance of equity shifts to its favor in some degree. The defense > could not make this showing in Remeirdes. > > Many will likely disagree as to whether that principle should apply; it > seems to me that it should. > > Cheers > Chris > > -----Original Message----- > From: Tyler Ochoa > To: Multiple recipients of list > Date: Monday, August 28, 2000 8:02 PM > Subject: Re: Summers v Tice (and Copyright?) > > > >>>> "Liane Lucietta" 08/02 12:20 PM >>> wrote: > >I am not familiar with the current case, but I offer this simplified, > >stripped-down explanation of Judge Kaplan's analogy. > ><<<<< > > > >Thanks to Liane Lucietta for a cogent explanation of Summers v. Tice and > other tort-law doctrines for shifting the burden of proof on causation. > Allow me to add the following clarifying comments: > > > >>>>>> > >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. > ><<<<< > > > >That's not quite correct. The DeCSS case involves contributory > infringement, not direct infringement. What Judge Kaplan is suggesting (and > to be fair, he only suggested that the parties be prepared to brief the > issue) is the following: Assume that plaintiffs can prove that there are > infringing unencrypted movies available on the Internet. Assume further > that the plaintiffs can prove that defendants posted DeCSS, but that > defendants can prove that other people also posted DeCSS. P may be able to > convince the judge that the copies that were made were infringing (and not > fair use), but it cannot prove whether those copies were made using the > defendant's DeCSS, or someone else's DeCSS. Would it be fair to shift the > burden to the defendant to prove that its posting of DeCSS was NOT used to > make the infringing copies? > > > >>>>>> > >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. [snip] > > > >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. > ><<<<< > > > >It is true that the precedents all involve bodily injury; but why should > the principle be limited to bodily injury? It is not enough to make a > distinction; you have to explain why the distinction makes sense. Tort law > is not limited to personal injury, although that is its most common > manifestation. Copyright infringement is a tort. > > > >>>>>> > >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? > ><<<<< > > > >Here, it is the plaintiff's burden to prove that the defendant's conduct > contributed to direct infringement committed by someone else. The judge is > suggesting that if it is demonstrated that infringing copies were created > using DeCSS, then maybe the defendant should have to prove that the > infringing copies that are introduced into evidence were NOT made using > defendant's post. It would be difficult, but not necessarily impossible; > some web sites keeps a list of who has visited them, or who downloaded what. > > > >More fundamentally, the burden of proof often plays a role in deciding who > wins in tort law. Often it is impossible to "prove" causation, so the > burden of proof will determine who wins. The burden is initially placed on > the plaintiff who seeks to change the status quo. Whether it is shifted is > a question of legal policy. It is perfectly appropriate for the judge to > ask the question whether he should apply those precedents to this new > situation. I am not expressing an opinion on that question; but I am > defending his making the inquiry. > > > >Tyler T. Ochoa > >Associate Professor > >Whittier Law School > > > > -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf --azLHFNyN32YCQGCU-- From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 17:00:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30276 for dvd-discuss-outgoing; Fri, 8 Sep 2000 17:00:20 -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 RAA30273 for ; Fri, 8 Sep 2000 17:00:18 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id RAA30927 for ; Fri, 8 Sep 2000 17:01:10 -0400 (EDT) Date: Fri, 8 Sep 2000 17:01:10 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] what does a directive not to publish mean? In-Reply-To: <4.3.2.7.2.20000908124600.00d41c50@cyberpass.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 8 Sep 2000, James S. Tyre wrote: > At 03:32 PM 9/8/2000 -0400, Jeremy A Erwin wrote: > >I was looking through Lexis Nexis, and came across this case: Accuson v > >Aloka, 209 Cal. App. 3d 425; 1989 Cal. App. LEXIS 317; 257 > >Cal. Rptr. 368; 10 U.S.P.Q.2D (BNA) 1814 (1989) which was prefaced by this > >odd little directive: > >"NOTICE: NOT CITABLE - ORDERED NOT PUBLISHED > [...] > > So the specific answer is that since the appellate opinion was officially > decertified by the Cal. Supremes, you cannot cite to the appellate opinion > as precedent. You can argue the logic of it, but you can't cite the case > for any point of law. It is a nullity for all but the parties to it. > Wow. Thanks for the long essay, Mr Tyre. It is a great pity that the court case in non-citable. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 17:06:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30498 for dvd-discuss-outgoing; Fri, 8 Sep 2000 17:06:05 -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 RAA30495 for ; Fri, 8 Sep 2000 17:06:04 -0400 Received: by mail.lemuria.org (Postfix, from userid 500) id 2AB7C27AB4; Fri, 8 Sep 2000 23:03:54 +0200 (MEST) Date: Fri, 8 Sep 2000 23:03:54 +0200 From: Tom Vogt To: decss@lists.lemuria.org, dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] mpaa23 details Message-ID: <20000908230354.A10209@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 some details on the mpaa23 sender. the machine sending these e-mails is a windows machine sitting on a pacbell ADSL line. it's got the usual windoze ports open for all the world to see. definitely not someone with much technical know-how. I wrote a spam complaint to pacbell.net, asking them to terminate this user account and provide me with name and address of the owner. I wrote that mail using my postmaster address, so maybe they'll take it seriously. the whois entry to mpaa.org reads: Registrant: THE MOTION PICTURE ASSOCIATIONOF AMERICA, INC. (MPAA-DOM) 15503 Ventura Boulevard Encino, CA 91436 US Domain Name: MPAA.ORG Administrative Contact, Billing Contact: Egge, Paul (PE420) pegge@MPAA.ORG MPAA 15503 Ventura Boulevard Encino, CA 91436 818-995-6600 (FAX) 818-382-1795 Technical Contact, Zone Contact: Pilot Network Services, Inc. (PILOT3) hostinfo@PILOT.NET Network Information and Support Center 1080 Marina Village Parkway Alameda, CA 94501 US (510) 433-7890 Record last updated on 14-Jun-2000. Record expires on 23-Aug-2000. Record created on 22-Aug-1995. Database last updated on 7-Sep-2000 17:50:52 EDT. Domain servers in listed order: NS.PILOT.NET 198.232.147.10 NS13.PILOT.NET 198.232.147.13 pilot.net is - unsurprisingly - a hosting service. they're especially proud of their security: "Protection from hackers, viruses, and other threats is built into the Pilot network with a unique, distributed security architecture [...]" they shouldn't be too proud of that - their mail servers have open relays and their webserver is running a trivial portscan-detector with advanced tcp port binding . the second interesting thing from above is that there ARE e-mail addresses @mpaa.org - so why don't they use them? aside from pegge, their webpage also mentions a "hotline@mpaa.org" address, so these addresses ARE in use. it gets more phoney: why mpaa*23* ? one guess was that mpaa1 to mpaa22 were already taken. may be possible - they might use various endings for different issues. however, that's not the case. a quick chat with the pacbell.net mailserver revealed that NONE of mpaa1 through mpaa22 are in use. mpaa23 is, and (just out of curiosity) mpaa24 and mpaa25 are again not. that definitely smells fishy, doesn't it? I'll see what other stuff I can dig up. what about the guy who asked his .edu to call them by phone? did they do so? what was the reply? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 17:15:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30698 for dvd-discuss-outgoing; Fri, 8 Sep 2000 17:15:33 -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 RAA30695 for ; Fri, 8 Sep 2000 17:15:31 -0400 Message-ID: <20000908211553.13293.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 08 Sep 2000 14:15:53 PDT Date: Fri, 8 Sep 2000 14:15:53 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 I started in on an outline for an amicus brief for the appeal to the 2nd Circuit. There is little detail after I), so have at it. Comments, as always, are welcome. ______________________ I) Kaplan's Intermediate Scrutiny Analysis is Hopelessly Flawed A) O'Brien standard for intermediate scrutiny does not apply 1) Not "regulating the nonspeech element" in "course of conduct" a) Functional capability only after installation on a machine b) Conduct of distributing code is solely speech-conduct c) 2600 is journalist distributing a copyrighted literary work with the authority of the copyright holder d) Voluntary public sharing is part of open source's message e) Compare Bery v. City of New York: Peddling Art not "conduct", street marketing was part of the message 3) Computer speech not in scope of statue a) 1201(c)(4) b) Software not 'black boxes' refered to by "technology" 4) Prior Restraints forbidden a) 1203(b)(1) vs Kaplan ellipses b) Constitutional requirement 5) Strict scrutiny is proper standard B) O'Brien requires intermediate scrutiny, not "rubber stamp" 1) Cite Horton v. Houston: may not just "rubber stamp" 2) Review of O'Brien Standard a) within the constitutional power of the Government b) furthers an important or substantial government interest c) content neutral, unrelated to the suppression of free expression d) incidental restriction no greater than essential to further interest 3) Cite Foti v. Menlo Park: content-based exceptions fail 4) Cite US v. Playboy: speaker-based restrictions are content-based 5) Review Overbreadth doctrine & "standing" 6) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral 7) Review vagueness doctrine a) Selective enforcement not allowed b) Prior Restraint by permit not allowed c) Cite Young v. Simi Valley to disallow 3rd party veto 8) Distinguish Time, Manner, Place cases from symbolic speech cases C) DMCA not "within constitutional power" of Congress 1) Not within the Copyright Power a) Fails "limited times" b) Protects more than "writings" of "author" c) Unconstitutionally rotects facts & ideas, and unpatented processes d) Impedes "progress of science" - computer science e) Fair Use defense to copyright causes of action required by Constitution f) Control of sold property after "just reward" not Constitutionally allowed g) Legislative History shows it's not Copyright Power 2) Not within Commerce Power a) Preempted by Copyright Clause - narrow powers preclude general ones b) No exception when "substantial effect on commerce" missing D) Does not "further substantial governement interest" 1) "Full Disclosure" best security approach. DMCA futhers insecurity, not security. 2) Congress shirked duty to show protecting weak systems will inhibit piracy E) Not content neutral, depends on examining content 1) Source Code communicates a factual method. Banning code descriminates against speech whose content is a method. 2) Would place all of science under intermediate scrutiny 3) Must scrutinize content of code to tell if it decrypts a) compare DeCSS to DoD Speed Ripper -- which decrypts? 4) 1201(d,e) exceptions are speaker-based 5) 1201(f)(3) turns on content of speech to determine "purpose" why one "provides such information" 6) 1201(g) exception for "encryption" research excludes other forms of research based solely on their content 7) 1201(g)(3)(A) favoring research when "information ... was disseminated" is content-based 8) 1201(g)(3)(B) turning on "whether the person is ... in the field of encryption technology" is speaker-based 9) 1201(g)(4) allows dissemination to "person ... working collaboratively" is content based, and contradicts 1201(g)(3)(A) 10) 1201(k) allowing distribution for "security testing" is content-based F) Not "incidental restriction" 1) Guts "fair use", betrays "fair use community" 2) No alternative outlet for communicating methods 3) Act of distributing code is "pure speech" 4) Lack of "intent to infringe" clause burdens legit activity II) Reverse Engineering Wrongly Denied III) Encryption Research Wrongly Denied III) Authority of Copyight Holder Existed Via First Sale IV) Misuse of Copyright V) Recusal __________________________________________________ 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 Sep 8 17:22:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30856 for dvd-discuss-outgoing; Fri, 8 Sep 2000 17:22:59 -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 RAA30853 for ; Fri, 8 Sep 2000 17:22:56 -0400 Received: from travel-net.com (trj112.travel-net.com [207.176.160.112]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id RAA08179 for ; Fri, 8 Sep 2000 17:24:33 -0400 Message-ID: <39B9587B.86B77982@travel-net.com> Date: Fri, 08 Sep 2000 17:22:03 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000908211553.13293.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 V Recusal? dont go there. Not our place to ask. more later when i get over this sinus infection.... Bryan Taylor wrote: > I started in on an outline for an amicus brief for the appeal to the > 2nd Circuit. There is little detail after I), so have at it. > > Comments, as always, are welcome. > ______________________ > > I) Kaplan's Intermediate Scrutiny Analysis is Hopelessly Flawed > A) O'Brien standard for intermediate scrutiny does not apply > 1) Not "regulating the nonspeech element" in "course of conduct" > a) Functional capability only after installation on a machine > b) Conduct of distributing code is solely speech-conduct > c) 2600 is journalist distributing a copyrighted literary work > with the authority of the copyright holder > d) Voluntary public sharing is part of open source's message > e) Compare Bery v. City of New York: Peddling Art > not "conduct", street marketing was part of the message > 3) Computer speech not in scope of statue > a) 1201(c)(4) > b) Software not 'black boxes' refered to by "technology" > 4) Prior Restraints forbidden > a) 1203(b)(1) vs Kaplan ellipses > b) Constitutional requirement > 5) Strict scrutiny is proper standard > B) O'Brien requires intermediate scrutiny, not "rubber stamp" > 1) Cite Horton v. Houston: may not just "rubber stamp" > 2) Review of O'Brien Standard > a) within the constitutional power of the Government > b) furthers an important or substantial government interest > c) content neutral, unrelated to the suppression of > free expression > d) incidental restriction no greater than essential > to further interest > 3) Cite Foti v. Menlo Park: content-based exceptions fail > 4) Cite US v. Playboy: speaker-based restrictions are > content-based > 5) Review Overbreadth doctrine & "standing" > 6) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral > 7) Review vagueness doctrine > a) Selective enforcement not allowed > b) Prior Restraint by permit not allowed > c) Cite Young v. Simi Valley to disallow 3rd party veto > 8) Distinguish Time, Manner, Place cases from symbolic > speech cases > C) DMCA not "within constitutional power" of Congress > 1) Not within the Copyright Power > a) Fails "limited times" > b) Protects more than "writings" of "author" > c) Unconstitutionally rotects facts & ideas, and > unpatented processes > d) Impedes "progress of science" - computer science > e) Fair Use defense to copyright causes of action > required by Constitution > f) Control of sold property after "just reward" not > Constitutionally allowed > g) Legislative History shows it's not Copyright Power > 2) Not within Commerce Power > a) Preempted by Copyright Clause - narrow powers > preclude general ones > b) No exception when "substantial effect on commerce" missing > D) Does not "further substantial governement interest" > 1) "Full Disclosure" best security approach. DMCA futhers > insecurity, not security. > 2) Congress shirked duty to show protecting weak systems will > inhibit piracy > E) Not content neutral, depends on examining content > 1) Source Code communicates a factual method. Banning code > descriminates against speech whose content is a method. > 2) Would place all of science under intermediate scrutiny > 3) Must scrutinize content of code to tell if it decrypts > a) compare DeCSS to DoD Speed Ripper -- which decrypts? > 4) 1201(d,e) exceptions are speaker-based > 5) 1201(f)(3) turns on content of speech to determine "purpose" > why one "provides such information" > 6) 1201(g) exception for "encryption" research excludes > other forms of research based solely on their content > 7) 1201(g)(3)(A) favoring research when "information ... was > disseminated" is content-based > 8) 1201(g)(3)(B) turning on "whether the person is ... in the > field of encryption technology" is speaker-based > 9) 1201(g)(4) allows dissemination to "person ... working > collaboratively" is content based, and contradicts > 1201(g)(3)(A) > 10) 1201(k) allowing distribution for "security testing" is > content-based > F) Not "incidental restriction" > 1) Guts "fair use", betrays "fair use community" > 2) No alternative outlet for communicating methods > 3) Act of distributing code is "pure speech" > 4) Lack of "intent to infringe" clause burdens legit activity > > II) Reverse Engineering Wrongly Denied > > III) Encryption Research Wrongly Denied > > III) Authority of Copyight Holder Existed Via First Sale > > IV) Misuse of Copyright > > V) Recusal > > > > > __________________________________________________ > 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 Sep 8 17:28:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31071 for dvd-discuss-outgoing; Fri, 8 Sep 2000 17:28:30 -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 RAA31068 for ; Fri, 8 Sep 2000 17:28:29 -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 RAA20424; Fri, 8 Sep 2000 17:29:20 -0400 (EDT) Message-ID: <39B95AC6.AC8A498B@mit.edu> Date: Fri, 08 Sep 2000 17:31:50 -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] mpaa23 details References: <20000908230354.A10209@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: > > some details on the mpaa23 sender. The MPAA has confirmed that they have resumed sending DeCSS emails. Quoting from "Assessing Linking Liability" from the Technology section of the NYT online: "Since Judge Kaplan's ruling, the Motion Picture Association of America, acting on behalf of Hollywood movie studios, has sent out about 100 e-mails to Web site operators asking them to cease posting or linking to DeCSS, according to Gregory P. Goeckner, a vice president and deputy general counsel of the MPAA. He said the e-mail recipients were carefully chosen, based on "evidence that there was a deliberate intent to provide DeCSS." He added that the MPAA didn't send e-mails to the operators of every site currently linking to DeCSS." Since the mpaa23 emails are the only ones I think we've heard about doesn't that nail down the legitimacy of the letters (or are there other senders I'm forgetting about)? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:02:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31459 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:02:13 -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 SAA31455 for ; Fri, 8 Sep 2000 18:02:10 -0400 Received: from ip55.bedford9.ma.pub-ip.psi.net ([38.32.79.55]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13XWEf-000243-00 for dvd-discuss@eon.law.harvard.edu; Fri, 08 Sep 2000 18:03:02 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Date: Fri, 08 Sep 2000 18:05:43 -0400 Message-ID: References: <20000908230354.A10209@lemuria.org> In-Reply-To: <20000908230354.A10209@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 SAA31456 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hmmm When I run mpaa.org thru ezconvertor, I get 209.67.152.159 which seems to be-- 209.67.0.0 - 209.67.255.0 Exodus Communications Inc., CA (NETBLK-ECI-5) perhaps whois is not up to date? TraceRoute mpaa.org (209.67.152.159) 58 bytes from 209.67.152.159: time=239 ms 1 119 119 38.1.1.1 38-default-gw.psi.net 2 109 -10 38.16.82.1 bedford.ma.tiac.ne.us.psi.net 3 118 9 38.1.41.15 rc15.ne.us.psi.net 4 122 4 38.1.21.193 rc1.ne.us.psi.net 5 118 -4 38.1.10.137 6 118 0 204.6.140.181 7 181 63 144.232.18.94 sl-bb11-stk-7-0.sprintlink.net 8 189 8 144.232.4.105 sl-bb10-stk-9-0.sprintlink.net 9 195 6 144.232.8.90 sl-bb10-ana-6-1.sprintlink.net 10 198 3 144.232.1.130 sl-bb12-ana-8-0.sprintlink.net 11 197 -1 144.232.1.162 sl-gw15-ana-10-0.sprintlink.net 12 196 -1 144.232.192.38 sl-exodus-7-0-0.sprintlink.net 13 200 4 216.34.192.36 bbr02-g6-0.elsg01.exodus.net 14 197 -3 209.1.169.229 bbr01-p2-0.irvn01.exodus.net 15 202 5 216.33.164.3 dcr03-g6-0.irvn01.exodus.net 16 198 -4 216.33.164.155 rsm04-vlan951.irvn01.exodus.net 17 197 -1 209.67.152.70 border1.exo.irv.ware.net 18 205 8 209.67.152.159 mpaa.org host reached __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:13:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31629 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:13:23 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA31624 for ; Fri, 8 Sep 2000 18:13:22 -0400 Received: from ip45.bedford.ma.pub-ip.psi.net ([38.32.9.45]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13XWPU-0002Ce-00 for dvd-discuss@eon.law.harvard.edu; Fri, 08 Sep 2000 18:14:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Date: Fri, 08 Sep 2000 18:16:53 -0400 Message-ID: References: <20000908230354.A10209@lemuria.org> In-Reply-To: <20000908230354.A10209@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 SAA31627 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 8 Sep 2000 23:03:54 +0200, Tom Vogt wrote: >the second interesting thing from above is that there ARE e-mail >addresses @mpaa.org - so why don't they use them? aside from pegge, >their webpage also mentions a "hotline@mpaa.org" address, so these >addresses ARE in use. I suspect they want to email from a dynamic IP address so they can deny sending the emails if things don't go their way. You'd have to subpoena Pacific Bell to get the identity of mpaa23. (Now, that's an idea...) It's probably not a even a lawyer, but an intern or consultant. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:12:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31616 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:12:53 -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 SAA31613 for ; Fri, 8 Sep 2000 18:12:52 -0400 Message-ID: <20000908221314.7929.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 08 Sep 2000 15:13:14 PDT Date: Fri, 8 Sep 2000 15:13:14 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] what does a directive not to publish mean? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 great majority of appellate decisions, federal and state (at > least California, I don't know that much about practices in > other states) are not officially published. If an Opinion is > not officially published, of course it still is binding on > the parties, but it cannot be cited as precedent by > others in other cases. (Interestingly, the federal 8th Circuit Court > of Appeals just adopted a fairly controversial rule that unpublished > opinions can be relied on as precedent.) The case is Anastasoff v. U.S. 99-3917EM (8th Cir. 8/22/2000) http://www.ca8.uscourts.gov/opndir/00/08/993917P.pdf It basically says that the Constitutions delegation of "judicial authority" requires creating findings of law. Once created, the reasoning goes, regardless of whether or not they are "published", they become law. It struck down as unconstitutional the 8th Circuit's rule that you cannot cite to precedent that is marked as not citable. This reasoning seems sound to me, but I haven't heard the rebuttal. __________________________________________________ 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 Sep 8 18:16:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31827 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:16:59 -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 SAA31824 for ; Fri, 8 Sep 2000 18:16:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 00:13:06 +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; Fri, 8 Sep 2000 22:09:27 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 8 Sep 2000 22:09:27 +0200 From: Tom Vogt To: decss@lists.lemuria.org, dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] love letter from the MPAA Message-ID: <20000908220927.E18329@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit 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 look what I found in my mail. ----- Forwarded message from mpaa23 ----- > Date: Fri, 08 Sep 2000 10:42:21 -0700 > From: mpaa23 > Subject: lemuria.org/DeCSS > To: Tom@lemuria.org > > > Motion Picture Association > World Wide Anti-Piracy > 15503 Ventura Blvd. > Encino, CA 91436 > Phone: (818) 728-8127 > Email: MPAA23@pacbell.net > > September 7, 2000 > > Tom Vogt > Lemuria.org > Rudolf-Breitscheid-Strasse 2 > 22880 Wedel > Germany > Tom@lemuria.org > Fax: 49 40 30635-250 > > RE: Illegal Provision of DeCSS/Circumvention Device > Site/URL: lemuria.org/DeCSS > MPA File #: 5-671-357 > > Dear Tom Vogt: > > The Motion Picture Association is authorized to act on behalf of the following copyright owners: > > Columbia Pictures Industries, Inc. > Disney Enterprises, Inc. > Metro-Goldwyn-Mayer Studios Inc. > Paramount Pictures Corporation > TriStar Pictures, Inc. > Twentieth Century Fox Film Corporation > United Artists Pictures, Inc. > United Artists Corporation > Universal City Studios, Inc. > Warner Bros., a Division of > Time Warner Entertainment Company, L.P. > > We have knowledge that the above-referenced Internet site is providing a circumvention device commonly known as DeCSS. DeCSS is a software utility that decrypts or unscrambles the contents of DVDs (consisting of copyrighted motion pictures) or otherwise circumvents the protection afforded by the Contents Scramble System (CSS) and permits the copying of the DVD contents and/or any portion thereof. As such, DeCSS is an unlawful circumvention device, which violates, inter alia, United States federal law. Specifically, providing or offering DeCSS to the public on your network or system violates the Digital Millennium Copyright Act, 17 U.S.C. §1201 et seq. ("DMCA"), which proscribes "manufacturing, importing or offering to the public, providing, or otherwise trafficking" in an unlawful circumvention device. > > On August 17, 2000, a federal district court in the Southern District of New York confirmed that offering, providing, or trafficking in DeCSS, or any other device designed to circumvent CSS, violates the DMCA. The district court granted a permanent injunction against (1) posting on any Internet site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in DeCSS or any other technology primarily designed to circumvent CSS, and (2) linking any Internet web site, either directly or through a series of links, to any other Internet web site containing DeCSS. > > Based on the foregoing, we request that you: > > 1) take appropriate steps to cause immediate removal of DeCSS from the above identified URL, along with such other actions as may be necessary or appropriate to suspend this illegal activity; > > 2) provide appropriate notice to the subscriber or account holder responsible for the presence of DeCSS on your system or network, advising him/her of the contents of this notice and directing that person to contact the undersigned immediately at the e-mail address provided above; > > 3) advise us of the name and physical address of the person operating this site; and > > 4) maintain, and take whatever steps are necessary to prevent the destruction of, all records, including electronic records, in your possession or control respecting this URL, account holder or subscriber. > > By copy of this letter, the owner of the above-referenced URL and/or email account is hereby directed to cease and desist from the conduct complained of herein. > > Thank you for your cooperation in this matter. Your immediate response is requested. > > The information in this notification is accurate, and we declare, under penalty of perjury, that the Motion Picture Association is authorized to act on behalf of the owner[s] of exclusive rights described above. > > Should you have any questions, please contact us at the above listed address. > > Respectfully, > The Motion Picture Association > > > > ----- End forwarded message ----- -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:33:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31998 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:33:23 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA31995 for ; Fri, 8 Sep 2000 18:33:21 -0400 Received: from ip97.bedford9.ma.pub-ip.psi.net ([38.32.79.97]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13XWir-0002Q4-00 for dvd-discuss@eon.law.harvard.edu; Fri, 08 Sep 2000 18:34:13 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] love letter from the MPAA Date: Fri, 08 Sep 2000 18:36:55 -0400 Message-ID: <0eqirs4tdb9jpcp5pck7p26bd1sdkn8vbq@4ax.com> References: <20000908220927.E18329@lemuria.org> In-Reply-To: <20000908220927.E18329@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 SAA31996 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 8 Sep 2000 22:09:27 +0200, Tom Vogt wrote: >look what I found in my mail. > It's interesting that they gave you the same domestic form letter, with no references to WIPO or anything. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:36:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32111 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:36:56 -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 SAA32108 for ; Fri, 8 Sep 2000 18:36:55 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 00:28:25 +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, 9 Sep 2000 00:18:13 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 00:18:13 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000909001813.A19511@lemuria.org> References: <20000908230354.A10209@lemuria.org> <39B95AC6.AC8A498B@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B95AC6.AC8A498B@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: > Since the mpaa23 emails are the only ones I think we've heard about > doesn't that nail down the legitimacy of the letters (or are there > other senders I'm forgetting about)? kind of. on the other hand, the letters strike me as very dumb, even for MPAA. I don't think they would stand one second in a court. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:36:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32103 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:36:35 -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 SAA32100 for ; Fri, 8 Sep 2000 18:36:34 -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 SAA00350 for ; Fri, 8 Sep 2000 18:37:22 -0400 (EDT) Message-ID: <39B96A22.E00B3FB3@mediaone.net> Date: Fri, 08 Sep 2000 18:37:22 -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] love letter from the MPAA References: <20000908220927.E18329@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: > > look what I found in my mail. > > ----- Forwarded message from mpaa23 ----- > > > Date: Fri, 08 Sep 2000 10:42:21 -0700 > > From: mpaa23 > > Subject: lemuria.org/DeCSS > > To: Tom@lemuria.org > > > > Can we get full headers on this? It might be interesting. mpaa.org doesn't seem to have any network relationship to pacbell.net.... -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 18:54:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32274 for dvd-discuss-outgoing; Fri, 8 Sep 2000 18:54:40 -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 SAA32271 for ; Fri, 8 Sep 2000 18:54:38 -0400 Received: from ip97.bedford9.ma.pub-ip.psi.net ([38.32.79.97]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13XX3S-0002dl-00 for dvd-discuss@eon.law.harvard.edu; Fri, 08 Sep 2000 18:55:30 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] love letter from the MPAA Date: Fri, 08 Sep 2000 18:58:11 -0400 Message-ID: References: <20000908220927.E18329@lemuria.org> In-Reply-To: <20000908220927.E18329@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 SAA32272 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >> Motion Picture Association >> World Wide Anti-Piracy >> 15503 Ventura Blvd. >> Encino, CA 91436 >> Phone: (818) 728-8127 >> Email: MPAA23@pacbell.net If mpaa23 is not an employee of MPA at this office in Encino, I'd consider this mail fraud. Lawyers? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 19:24:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA32545 for dvd-discuss-outgoing; Fri, 8 Sep 2000 19:24:28 -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 TAA32542 for ; Fri, 8 Sep 2000 19:24:16 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA06105 for dvd-discuss@eon.law.harvard.edu; Fri, 8 Sep 2000 19:25:50 -0400 Date: Fri, 8 Sep 2000 19:25:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] THE ONE DOLLAR CAR Message-ID: <20000908192544.G5377@eldritchpress.org> References: <39B7CD9F.6575C2A6@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39B7CD9F.6575C2A6@uic.edu>; from jms@uic.edu on Thu, Sep 07, 2000 at 12:17:19PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 12:17:19PM -0500, John Schulien wrote: >... > We all understand the concept of a plugin in software. >... > The DMCA has taken the concept of a plugin into the > legal arena. The DMCA is a law that allows a publisher > to replace Title 17, the entire copyright code, with a > computer language technological "plugin" replacement. >... > Glassbook is right on top of that. You can download such > public domain classics as The Art Of War, The Federalist > Papers, and The Politics of Aristotle -- and these public > domain classics are just as protected by Glassbook's > "Title 17 plugin" as if they were written yesterday. ... Boy, can we have a lot of fun with this idea! Advertisement at website http://onedollarcars.com "Buy a car online today for just ONE DOLLAR!" After you buy the incredible value of a ONE DOLLAR CAR, you are allowed to select from the incredible options of car plugins that actually allow you to use the car (with a license from the automaker). For example, the ONE DOLLAR CAR by default limits the car's speed to the legal speed limit. However, the automaker is now permitted by the government to provide a new safety feature: a plugin that temporarily allows the operator (so long as the authorized foot is pressed against the authorized accelerator pedal) to temporarily exceed the posted speed limit. This feature is metered and a small fee will be charged to your credit card every time it is used under authorization. As another example, FORD with its ONE DOLLAR CAR makes mandatory a tire pressure on your ONE DOLLAR TIRES of no more than 26 pounds per square inch. This value was carefully selected to insure that the brands FORD and EXPLORER are not associated with working class trucks, but provide a soft, smooth ride that is permanently associated with expensive luxury vehicles. However, those who opt to buy a ONE DOLLAR FORD EXPLORER can today select the plugin option that changes the default tire pressure to 35 pounds per square inch for a limited time. Naturally, using this plugin will mean a small fee for each driving period will be charged to your credit card automatically. A reduced price may be given for those survivors of rollover accidents who can prove that the optional plugin was purchased and in use at the time of the accident. In order to maintain the business model of global insurance companies, the ONE DOLLAR CAR is equipped by default with a GPS monitoring system. As soon as the car is driven into Mexico, for example, without the purchase of an insurance plugin authorizing such an excursion, the car will automatically stop. This feature is added to protect your financial assets in case of a suit as a result of an accident in an area not covered by your car insurance. The optional plugin works the same as the others--you may easily rent it through the onboard computer system in the ONE DOLLAR CAR. It is important to note that HACKERS may attempt to sell you unauthorized plugins for the ONE DOLLAR CAR. You are warned that if you attempt to use an unauthorized plugin in your ONE DOLLAR CAR, the onboard computer will automatically call the police and you will go to jail because of this circumvention of our access and control technology, under the DMCA law. Any attempt at reverse engineering will automatically cause the ONE DOLLAR CAR to operate in reverse gear only. ...and so on. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 20:55:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA01321 for dvd-discuss-outgoing; Fri, 8 Sep 2000 20:55:09 -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 UAA01318 for ; Fri, 8 Sep 2000 20:55:07 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id UAA16729 for ; Fri, 8 Sep 2000 20:55:59 -0400 (EDT) Date: Fri, 8 Sep 2000 20:55:59 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] THE ONE DOLLAR CAR In-Reply-To: <20000908192544.G5377@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, 8 Sep 2000, Eric Eldred wrote: > Boy, can we have a lot of fun with this idea! > > Advertisement at website http://onedollarcars.com > > "Buy a car online today for just ONE DOLLAR!" > In order to maintain the business model of global > insurance companies, the ONE DOLLAR CAR is equipped > by default with a GPS monitoring system. As soon > as the car is driven into Mexico, for example, without > the purchase of an insurance plugin authorizing such > an excursion, the car will automatically stop. This > feature is added to protect your financial assets > in case of a suit as a result of an accident in an > area not covered by your car insurance. The optional > plugin works the same as the others--you may easily > rent it through the onboard computer system in the > ONE DOLLAR CAR. > I've actually heard of dealers selling ignition cutoff equiped cars to high-risk borrowers... The scheme is simple. Each month, after you've paid your bill, you punch in an authorization code. If your check bounces, the car stops running. If the authorization code isn't valid, the car won't start. and so on. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 21:47:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01689 for dvd-discuss-outgoing; Fri, 8 Sep 2000 21:47:16 -0400 Received: from dns2.caprock-spur.com (mail.caprock-spur.com [216.167.146.4] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA01686 for ; Fri, 8 Sep 2000 21:47:14 -0400 Received: from caprock-spur.com ([216.167.146.122]) by dns2.caprock-spur.com (Post.Office MTA v3.5.3 release 223 ID# 0-65272U3000L300S0V35) with ESMTP id com for ; Fri, 8 Sep 2000 20:43:45 -0500 Message-ID: <39B994CD.5FE0D599@caprock-spur.com> Date: Fri, 08 Sep 2000 20:39:25 -0500 From: Ronald Austin X-Mailer: Mozilla 4.73 [en] (X11; I; Linux 2.2.15-4mdksmp i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Movies available on Internet within a year. Content-Type: text/plain; charset=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 found this on www.videobusiness.com. Pardon the crummy cut and paste. By Lisa Nesselson DEAUVILLE, France--Jack Valenti is confident that Hollywood feature films will be available for secure download via the Internet in as little as one year. On his 26th visit to the Festival of American Cinema, the head of the Motion Picture Association of America told Daily Variety, "We've got the best cyber-brains working on it. They're devising encryption and watermarks that will block theft, and they assure me that everything can be in place to deliver full-length films to the consumer at a price that is reasonable and fair within one year." While Valenti is thrilled about the 'Net's potential to boost profits, he's adamant about the need to crack down on the theft of intellectual property. "We are raising a generation who believe that if it's on the Internet, it's free," he said. "They call it 'file sharing,' but there's no other word for it but theft." Cheered by recent judicial rulings challenging Web-based clearing houses and software that make it easy to download songs and movies, Valenti enthusiastically declared, "We are now arming ourselves to use legitimate technology to defeat illegitimate technology." Valenti has founded a new department within the Motion Picture Association called Digital Strategies "to involve ourselves in digital rights management procedures so we can clothe our movies in a protective shield that would disallow them to be copied by anybody. Sniffers will instantly pluck out anything out there that's unauthorized." Hmmm... I wonder if these are these are the same "cyber-brains" that created CSS? Maybe since the RSA patents have expired they will do it right.... Nah won't happen. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 22:37:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02168 for dvd-discuss-outgoing; Fri, 8 Sep 2000 22:37:07 -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 WAA02165 for ; Fri, 8 Sep 2000 22:36:56 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA06302 for dvd-discuss@eon.law.harvard.edu; Fri, 8 Sep 2000 22:38:31 -0400 Date: Fri, 8 Sep 2000 22:38:26 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] THE ONE DOLLAR CAR Message-ID: <20000908223826.I5377@eldritchpress.org> References: <20000908192544.G5377@eldritchpress.org> 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 Fri, Sep 08, 2000 at 08:55:59PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 08, 2000 at 08:55:59PM -0400, Jeremy A Erwin wrote: > On Fri, 8 Sep 2000, Eric Eldred wrote: > > > Boy, can we have a lot of fun with this idea! > > > > Advertisement at website http://onedollarcars.com > > New successor to Court TV is http://lawsuit-plugins.com Interactive Television reaches a new height! LawSuitTV (tm) ties the television to the Internet in a crescendo of compelling infotainment that will reach deep into the pocketbooks of every law-abiding American and alien! Every week features a new LawSuit (tm)--one that you can vote on via LawSuitPlugIns (tm) available for convenient download with your LawSuitBrowser (tm)--while you need not take your eyes off the 24-hour x 366-day LawSuitTV (tm) channel! Available in rental of LawSuitPlugIns (tm) is your choice of sections from the United States LawSuitCode (tm) you can mix and match to gain an advantage over the current selected defendant. An online discussion group directly copied from Harvard Law School's (tm) OpenLaw will aid the selected star attorneys on your side who will appear on the LawSuitTV (tm) Channel court. A real U.S. Federal District Judge (tm) will be paid to act as a real U.S. Federal District Judge in the case. Half the air time will be devoted to the case; the other half will feature selected advertisements from distinguished law firms throughout the world. Initial cases will feature famous "hackers" who will be grilled on the stand by members of the world-famous law firm of Prosecutor Rose. As soon as the expected guilty verdict is reached, LawSuitTV (tm) will feature extended online and on-air confessions by the "hackers." Rumors have reached us that the first "hacker" perp will be a three-year-old Native American woman in Tibet. Harvard Law School Professor Arther Millerstone will be the distinguished guest presenter and genial host for the series. Members of the Motion Picture Artists Association are bidding now for rights for presenting this series on Interactive DVDs expected to be available soon--well, as soon as some tiresome lawsuits are settled. See you soon--on LawSuitTV (tm)!! Remember, you have been served!! From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 22:44:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA02307 for dvd-discuss-outgoing; Fri, 8 Sep 2000 22:44:09 -0400 Received: from nanocrew.net (nanocrew.net [195.204.80.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA02304 for ; Fri, 8 Sep 2000 22:44:08 -0400 Received: (qmail 31231 invoked by uid 1000); 9 Sep 2000 02:42:19 -0000 Date: Sat, 9 Sep 2000 04:42:19 +0200 From: Jon Lech Johansen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Movies available on Internet within a year. Message-ID: <20000909044219.A15607@nanocrew.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i X-Website-You-Must-Visit: www.eff.org X-Sender: jon@nanocrew.net Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Hmmm... I wonder if these are these are the same "cyber-brains" that > created CSS? > Maybe since the RSA patents have expired they will do it right.... Nah > won't happen. Doesn't really matter what algorithm they use. If they plan to provide a software player, they're screwed. If they don't, they're still screwed; it'll just take a bit longer. So they're screwed either way; they always will be. -- Jon Johansen nanocrew.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 23:06:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02607 for dvd-discuss-outgoing; Fri, 8 Sep 2000 23:06:57 -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 XAA02603 for ; Fri, 8 Sep 2000 23:06:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 04:55:42 +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, 9 Sep 2000 04:32:38 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 04:32:38 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] love letter from the MPAA Message-ID: <20000909043238.B20112@lemuria.org> References: <20000908220927.E18329@lemuria.org> <39B96A22.E00B3FB3@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B96A22.E00B3FB3@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: > Can we get full headers on this? It might > be interesting. sure, no problem. also see my other mail - this is a pacbell dialup account. From pacbell.net!mpaa23 Fri Sep 8 21:35:39 2000 Return-Path: Received: by lemuria.org via rmail with stdio id for Tom@lemuria.org; Fri, 8 Sep 2000 21:35:38 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by mail.lemuria.org (Postfix) with ESMTP id 053EC27AB7 for ; Fri, 8 Sep 2000 20:08:32 +0200 (MEST) Received: from dsl1 ([63.203.119.218]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0K008OBXD7KQ@mta5.snfc21.pbi.net> for Tom@lemuria.org; Fri, 8 Sep 2000 10:46:19 -0700 (PDT) Date: Fri, 08 Sep 2000 10:42:21 -0700 From: mpaa23 Subject: lemuria.org/DeCSS To: Tom@lemuria.org Message-id: <00c401c019bc$244324a0$da77cb3f@pacbell.net> MIME-version: 1.0 X-Mailer: Microsoft Outlook Express 5.00.2615.200 Content-type: multipart/mixed; boundary="----=_NextPart_000_00C0_01C01981.77A8CA40" X-MSMail-Priority: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200 X-Priority: 3 Status: RO Content-Length: 4879 Lines: 141 -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 23:06:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02614 for dvd-discuss-outgoing; Fri, 8 Sep 2000 23:06:58 -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 XAA02611 for ; Fri, 8 Sep 2000 23:06:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 04:55:42 +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, 9 Sep 2000 04:33:14 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 04:33:13 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] love letter from the MPAA Message-ID: <20000909043313.C20112@lemuria.org> References: <20000908220927.E18329@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 Ron Gustavson wrote: > If mpaa23 is not an employee of MPA at this > office in Encino, I'd consider this mail fraud. unfortunatly, any legal action would hit mpaa23, not MPAA. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 23:06:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02599 for dvd-discuss-outgoing; Fri, 8 Sep 2000 23:06:56 -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 XAA02595 for ; Fri, 8 Sep 2000 23:06:54 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 04:55:42 +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, 9 Sep 2000 04:31:40 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 04:31:40 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] love letter from the MPAA Message-ID: <20000909043140.A20112@lemuria.org> References: <20000908220927.E18329@lemuria.org> <0eqirs4tdb9jpcp5pck7p26bd1sdkn8vbq@4ax.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <0eqirs4tdb9jpcp5pck7p26bd1sdkn8vbq@4ax.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 Ron Gustavson wrote: > It's interesting that they gave you the same domestic form letter, > with no references to WIPO or anything. AND they skipped the "even if you are not bound by this injunction" part this time. I consider this letter threat and harrassment. is there anything I can do to stop this, like sending THEM a cease&desist letter? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 8 23:46:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02948 for dvd-discuss-outgoing; Fri, 8 Sep 2000 23:46:07 -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 XAA02945 for ; Fri, 8 Sep 2000 23:46:06 -0400 Received: from swbell.net ([64.216.211.62]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0L00BU6OT06S@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Fri, 8 Sep 2000 22:39:01 -0500 (CDT) Date: Fri, 08 Sep 2000 22:29:57 -0500 From: Jolley Subject: Re: [dvd-discuss] love letter from the MPAA To: dvd-discuss@eon.law.harvard.edu Message-id: <39B9AEB5.33482E87@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=iso-8859-1 Content-transfer-encoding: 8BIT X-Accept-Language: en References: <20000908220927.E18329@lemuria.org> <0eqirs4tdb9jpcp5pck7p26bd1sdkn8vbq@4ax.com> <20000909043140.A20112@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is from http://public.pacbell.net/contact.html Junk E-mail/Spam – Pacific Bell Internet has a strict policy against unsolicited commercial e-mail (also called "spam"). We aggressively investigate all complaints about Pacific Bell Internet customers who are violating this policy. If you have any questions or reports about Pacific Bell Internet customers, please direct them to abuse@pacbell.net. Good luck! Tom Vogt wrote: > > Ron Gustavson wrote: > > It's interesting that they gave you the same domestic form letter, > > with no references to WIPO or anything. > > AND they skipped the "even if you are not bound by this injunction" part > this time. I consider this letter threat and harrassment. is there anything > I can do to stop this, like sending THEM a cease&desist letter? > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 00:12:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA03184 for dvd-discuss-outgoing; Sat, 9 Sep 2000 00:12:37 -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 AAA03181 for ; Sat, 9 Sep 2000 00:12:36 -0400 Received: from ip152.bedford3.ma.pub-ip.psi.net ([38.32.11.152]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Xc1A-00042H-00 for dvd-discuss@eon.law.harvard.edu; Sat, 09 Sep 2000 00:13:28 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] THE ONE DOLLAR CAR Date: Sat, 09 Sep 2000 00:16:11 -0400 Message-ID: References: <20000908192544.G5377@eldritchpress.org> <20000908223826.I5377@eldritchpress.org> In-Reply-To: <20000908223826.I5377@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 AAA03182 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 8 Sep 2000 22:38:26 -0400, Eric Eldred wrote: >Initial cases will feature famous "hackers" who will >be grilled on the stand by members of the world-famous >law firm of Prosecutor Rose. As soon as the expected >guilty verdict is reached, LawSuitTV (tm) will feature >extended online and on-air confessions by the "hackers." >Rumors have reached us that the first "hacker" perp >will be a three-year-old Native American woman in Tibet. Ooh-ooh I got it!! The lawyers and hackers are on this island and each week they have to "vote" someone off the island... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 01:20:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA03641 for dvd-discuss-outgoing; Sat, 9 Sep 2000 01:20:44 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA03638 for ; Sat, 9 Sep 2000 01:20:43 -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 AAA25051 for ; Sat, 9 Sep 2000 00:21:11 -0500 Message-ID: <39B9C75C.288BD37D@mninter.net> Date: Sat, 09 Sep 2000 00:15:08 -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] love letter from the MPAA References: <20000908220927.E18329@lemuria.org> <0eqirs4tdb9jpcp5pck7p26bd1sdkn8vbq@4ax.com> <20000909043140.A20112@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: > AND they skipped the "even if you are not bound by this injunction" > part this time. I consider this letter threat and harrassment. is > there anything I can do to stop this, like sending THEM a > cease&desist letter? > Read my reply to their first (and only) email to me. It seems to have worked, because I haven't gotten one in this wave. It borrows a familiar, misleading tactic directly from the offending email (referring to a law that probably doesn't apply to the situation to achieve the desired result.) http://www.underwhelm.org/decss/reply.html -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 01:36:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA03815 for dvd-discuss-outgoing; Sat, 9 Sep 2000 01:36:14 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA03812 for ; Sat, 9 Sep 2000 01:36:13 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id BAA00772 for dvd-discuss@eon.law.harvard.edu; Sat, 9 Sep 2000 01:37:04 -0400 (EDT) Date: Sat, 9 Sep 2000 01:37:04 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000909013703.C151@ils.unc.edu> References: <20000908230354.A10209@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i In-Reply-To: <20000908230354.A10209@lemuria.org>; from tom@lemuria.org on Fri, Sep 08, 2000 at 11:03:54PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 08, 2000 at 11:03:54PM +0200, Tom Vogt wrote: > > some details on the mpaa23 sender. Thanks for all the interesting tidbits. > I'll see what other stuff I can dig up. what about the guy who asked > his .edu to call them by phone? did they do so? what was the reply? I am that guy. I have not heard back yet (though I did hear I'm on the campus tech mgmt's sh*tlist for causing a ruckus). Unofficial word came via my boss (the Dean) that the campus powers that be were not going to attend to the MPAA's wishes & censor my class Web pages. I was supposed to get an official memo this week, but never did. If I don't hear by mid-next week I will call the MPAA myself. I'll post any outcomes to the list, never fear. -- Greg // Gregory B. Newby, Assistant Professor in the School of Information // and Library Science, University of North Carolina at Chapel Hill // CB# 3360 Manning Hall, Chapel Hill, NC, 27599-3360 E: gbnewby@ils.unc.edu // V: 919-962-8064 F: 919-962-8071 W: http://www.ils.unc.edu/gbnewby/ From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 03:11:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA04423 for dvd-discuss-outgoing; Sat, 9 Sep 2000 03:11:01 -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 DAA04420 for ; Sat, 9 Sep 2000 03:10:50 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA06608 for dvd-discuss@eon.law.harvard.edu; Sat, 9 Sep 2000 03:12:28 -0400 Date: Sat, 9 Sep 2000 03:12:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Movies available on Internet within a year. Message-ID: <20000909031223.J5377@eldritchpress.org> References: <39B994CD.5FE0D599@caprock-spur.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39B994CD.5FE0D599@caprock-spur.com>; from ronald@caprock-spur.com on Fri, Sep 08, 2000 at 08:39:25PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "We are raising a generation who believe that if it's on the Internet, it's free," he said. "They call it 'file sharing,' but there's no other word for it but theft." --Jack Valenti Who writes his histrionic scripts? She deserves an Oscar. Jack, come and get it at http://www.eldritchpress.org/ -- it's free, and you can share it (if you can really read) but please don't steal it and try to sell it, it belongs to the public, not you. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 03:22:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA04574 for dvd-discuss-outgoing; Sat, 9 Sep 2000 03:22:17 -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 DAA04571 for ; Sat, 9 Sep 2000 03:22:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA06638 for dvd-discuss@eon.law.harvard.edu; Sat, 9 Sep 2000 03:23:38 -0400 Date: Sat, 9 Sep 2000 03:23:33 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] misuse, Alcatel v. DGI Message-ID: <20000909032333.K5377@eldritchpress.org> References: <20000907190905.A16606@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0i In-Reply-To: <20000907190905.A16606@thud.reric.net>; from eds@reric.net on Thu, Sep 07, 2000 at 07:09:05PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 07:09:05PM -0500, Eric Seppanen wrote: >... > _Alcatel_ also quotes the _DSC_ district court's jury instructions (and > you gotta love this judge): > > [I]f DSC has used its copyrights to indirectly gain commercial control > over products DSC does not have copyrighted, then copyright misuse may > be present. The grant to the author of the special privilege of a > copyright carries out a public policy adopted by the Constitution and > laws of the United States, "to promote the Progress of Science and > useful arts, by securing for limited Times to [Authors] . . . the > exclusive Right . . ." to their "original" works. United States > Constitution, Art. I, § 8, cl. 8, 17 U.S.C. § 102. But the public policy > which includes original works within the granted monopoly excludes from > it all that is not embraced in the original expression. It equally > forbids the use of the copyright to secure an exclusive right or limited > monopoly not granted by the Copyright Office and which is contrary to > public policy to grant. The last sentence, if I can understand it, seems to indicate that the copyright misuse argument can be raised even if plaintiffs claim they relied on a copyright law passed by Congress, the DMCA. Because "contrary to public policy" means that the law has to be Constitutional, not just a policy issued by the Copyright Office-- or even a law carelessly passed by Congress, that goes beyond protecting original works to include control that does not restrict itself to the limited "monopoly" -- i.e., "excludes from it all that is not embraced in the original expression." Might be a stretch, but worth raising. Certainly there is much legislative history to indicate Congresspeople didn't mean the monopoly to extend that far. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 03:39:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA04746 for dvd-discuss-outgoing; Sat, 9 Sep 2000 03:39:00 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA04743 for ; Sat, 9 Sep 2000 03:38:48 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA06674; Sat, 9 Sep 2000 03:40:11 -0400 Date: Sat, 9 Sep 2000 03:40:05 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: decss@lists.lemuria.org Subject: Re: [dvd-discuss] love letter from the MPAA Message-ID: <20000909034005.A6654@eldritchpress.org> References: <20000908220927.E18329@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000908220927.E18329@lemuria.org>; from tom@lemuria.org on Fri, Sep 08, 2000 at 10:09:27PM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 08, 2000 at 10:09:27PM +0200, Tom Vogt wrote: > look what I found in my mail. >... > > Date: Fri, 08 Sep 2000 10:42:21 -0700 > > From: mpaa23 > >... On August 17, 2000, a federal district court in the Southern District of New York confirmed that offering, providing, or trafficking in DeCSS, or any other device designed to circumvent CSS, violates the DMCA. The district court granted a permanent injunction against (1) posting on any Internet site, or in any other way manufacturing, importing or offering to the public, providing, or otherwise trafficking in DeCSS or any other technology primarily designed to circumvent CSS, and (2) linking any Internet web site, either directly or through a series of links, to any other Internet web site containing DeCSS. Clause (2) is repeated from the previous letter. This isn't what Kaplan ruled on August 17th. If he did rule it, his ruling ought to apply not only to go.com but every site on the Internet that is linked "either directly or through a series of links, to any other Internet web site containing DeCSS," which I suppose includes just about every site that anyone could find on the Internet--which is essentially a series of such hyperlinks. But what can you expect when Jack Valenti is gloating over throwing all the "pirates" off the "free" Internet so he can make it safe for his pay-per-view movies and e-commerce? From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 03:48:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA04888 for dvd-discuss-outgoing; Sat, 9 Sep 2000 03:48:05 -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 DAA04885 for ; Sat, 9 Sep 2000 03:48:03 -0400 Received: from Jim (user-uini6j6.dsl.mindspring.com [165.121.26.102]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with ESMTP id DAA14169 for ; Sat, 9 Sep 2000 03:48:56 -0400 (EDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] introduction Date: Sat, 9 Sep 2000 00:47:44 -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: <20000818170422.C1777@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred, on Friday, August 18, 2000 2:04 PM, wrote >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?). I've been submerged in getting the DVD Demystified 2nd edition manuscript finished. >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. I don't know if this idea is still being considered, but here are a few random thoughts. Generating a unique player key (that works only with a specific implementation of DeCSS) should be simple. Generating title keys should also be easy. You could produce a DLT (standard format for submission to replicators) with 2056-byte sectors with title keys in them, using one of the high-level authoring systems (that cost more than the CSS license!). You'd need to get the player key into the player key block in the control area of the disc. This is the tricky part, especially since replicators have a standard player key block (from DVDCCA) that they use. I can't think of a good way to do this other than working with a shady replicator (who won't be CSS licensed, and won't have standard CSS tools for adding the key block to the LBR image file, so they'd have to have a custom tool that lets them write arbitrary data into places that are rather hard to get access to). Licensing CSS will not work, since using a non-approved player key violates the license. You would then be subject to legal action. Note also that CSS is only allowed to be used for audio/video, not software data files. You could hide data files in VOBs, but even that could probably be argued to be a violation of the license. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 04:31:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA05208 for dvd-discuss-outgoing; Sat, 9 Sep 2000 04:31:25 -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 EAA05205 for ; Sat, 9 Sep 2000 04:31:19 -0400 Received: from ppp.anonymizer.com (c4T2-192.015.popsite.net [216.126.187.192]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id BAA03645 for ; Sat, 9 Sep 2000 01:33:58 -0700 (PDT) Message-Id: <4.3.2.7.2.20000909010608.00a99930@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 09 Sep 2000 01:31:56 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39B9587B.86B77982@travel-net.com> References: <20000908211553.13293.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 05:22 PM 9/8/2000 -0400, Dan Steinberg wrote: >V Recusal? dont go there. Not our place to ask. >more later when i get over this sinus infection.... Strongly seconded. Going one step further, the best amicus briefs are those which play to the particular strengths of the amici, not those which seek to argue most everything. And remember that Openlaw's will not be the only amicus. While I truly commend Bryan for his effort here, my professional judgment is that his proposal is too ambitious. I am not at all set on this, but my preliminary thought is to scale it back to IA, B (tied to A with technical examples), D, E, F, II, maybe III (the second III ;-) the first III is a weak argument, IMO). Dump the rest not because it isn't worthy, but because it is too much for one amicus brief, will be covered by others. Even scaled back that much, I can see page length being an issue. As a nit to pick, I don't like the concept of IA1c. Despite an earlier lengthy post to the contrary (don't remember by whom), the jurisprudence really doesn't (and shouldn't) draw relevant distinctions between freedom of the press and freedom of speech. >Bryan Taylor wrote: > > > I started in on an outline for an amicus brief for the appeal to the > > 2nd Circuit. There is little detail after I), so have at it. > > > > Comments, as always, are welcome. > > ______________________ > > > > I) Kaplan's Intermediate Scrutiny Analysis is Hopelessly Flawed > > A) O'Brien standard for intermediate scrutiny does not apply > > 1) Not "regulating the nonspeech element" in "course of conduct" > > a) Functional capability only after installation on a machine > > b) Conduct of distributing code is solely speech-conduct > > c) 2600 is journalist distributing a copyrighted literary work > > with the authority of the copyright holder > > d) Voluntary public sharing is part of open source's message > > e) Compare Bery v. City of New York: Peddling Art > > not "conduct", street marketing was part of the message > > 3) Computer speech not in scope of statue > > a) 1201(c)(4) > > b) Software not 'black boxes' refered to by "technology" > > 4) Prior Restraints forbidden > > a) 1203(b)(1) vs Kaplan ellipses > > b) Constitutional requirement > > 5) Strict scrutiny is proper standard > > B) O'Brien requires intermediate scrutiny, not "rubber stamp" > > 1) Cite Horton v. Houston: may not just "rubber stamp" > > 2) Review of O'Brien Standard > > a) within the constitutional power of the Government > > b) furthers an important or substantial government interest > > c) content neutral, unrelated to the suppression of > > free expression > > d) incidental restriction no greater than essential > > to further interest > > 3) Cite Foti v. Menlo Park: content-based exceptions fail > > 4) Cite US v. Playboy: speaker-based restrictions are > > content-based > > 5) Review Overbreadth doctrine & "standing" > > 6) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral > > 7) Review vagueness doctrine > > a) Selective enforcement not allowed > > b) Prior Restraint by permit not allowed > > c) Cite Young v. Simi Valley to disallow 3rd party veto > > 8) Distinguish Time, Manner, Place cases from symbolic > > speech cases > > C) DMCA not "within constitutional power" of Congress > > 1) Not within the Copyright Power > > a) Fails "limited times" > > b) Protects more than "writings" of "author" > > c) Unconstitutionally rotects facts & ideas, and > > unpatented processes > > d) Impedes "progress of science" - computer science > > e) Fair Use defense to copyright causes of action > > required by Constitution > > f) Control of sold property after "just reward" not > > Constitutionally allowed > > g) Legislative History shows it's not Copyright Power > > 2) Not within Commerce Power > > a) Preempted by Copyright Clause - narrow powers > > preclude general ones > > b) No exception when "substantial effect on commerce" missing > > D) Does not "further substantial governement interest" > > 1) "Full Disclosure" best security approach. DMCA futhers > > insecurity, not security. > > 2) Congress shirked duty to show protecting weak systems will > > inhibit piracy > > E) Not content neutral, depends on examining content > > 1) Source Code communicates a factual method. Banning code > > descriminates against speech whose content is a method. > > 2) Would place all of science under intermediate scrutiny > > 3) Must scrutinize content of code to tell if it decrypts > > a) compare DeCSS to DoD Speed Ripper -- which decrypts? > > 4) 1201(d,e) exceptions are speaker-based > > 5) 1201(f)(3) turns on content of speech to determine "purpose" > > why one "provides such information" > > 6) 1201(g) exception for "encryption" research excludes > > other forms of research based solely on their content > > 7) 1201(g)(3)(A) favoring research when "information ... was > > disseminated" is content-based > > 8) 1201(g)(3)(B) turning on "whether the person is ... in the > > field of encryption technology" is speaker-based > > 9) 1201(g)(4) allows dissemination to "person ... working > > collaboratively" is content based, and contradicts > > 1201(g)(3)(A) > > 10) 1201(k) allowing distribution for "security testing" is > > content-based > > F) Not "incidental restriction" > > 1) Guts "fair use", betrays "fair use community" > > 2) No alternative outlet for communicating methods > > 3) Act of distributing code is "pure speech" > > 4) Lack of "intent to infringe" clause burdens legit activity > > > > II) Reverse Engineering Wrongly Denied > > > > III) Encryption Research Wrongly Denied > > > > III) Authority of Copyight Holder Existed Via First Sale > > > > IV) Misuse of Copyright > > > > V) Recusal > > > > > > > > > > __________________________________________________ > > Do You Yahoo!? > > Yahoo! Mail - Free email you can access from anywhere! > > http://mail.yahoo.com/ -------------------------------------------------------------------- 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 Sep 9 06:47:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA06159 for dvd-discuss-outgoing; Sat, 9 Sep 2000 06:47:08 -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 GAA06156 for ; Sat, 9 Sep 2000 06:47:07 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 12:42:13 +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, 9 Sep 2000 12:13:33 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 12:13:33 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000909121333.B21179@lemuria.org> References: <20000908230354.A10209@lemuria.org> <20000909013703.C151@ils.unc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000909013703.C151@ils.unc.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 Greg Newby wrote: > If I don't hear by mid-next week I will call the MPAA myself. > I'll post any outcomes to the list, never fear. another opportunity: would one of the lawyers on this list be willing to make one pro-bono phonecall on my behalf? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 06:47:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA06151 for dvd-discuss-outgoing; Sat, 9 Sep 2000 06:47:07 -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 GAA06148 for ; Sat, 9 Sep 2000 06:47:05 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 12:42:13 +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, 9 Sep 2000 12:12:05 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 12:12:05 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] love letter from the MPAA Message-ID: <20000909121205.A21179@lemuria.org> References: <20000908220927.E18329@lemuria.org> <0eqirs4tdb9jpcp5pck7p26bd1sdkn8vbq@4ax.com> <20000909043140.A20112@lemuria.org> <39B9AEB5.33482E87@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39B9AEB5.33482E87@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: > investigate all complaints about Pacific Bell Internet customers who > are violating this policy. If you have any questions or reports about > Pacific Bell Internet customers, please direct them to > abuse@pacbell.net. already did this. I sent pacbell a mail asking them to: a) terminate that user account b) give me name and physical address of that user c) make sure I don't receive any more mails of that kind let's see what they say. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 07:16:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA06443 for dvd-discuss-outgoing; Sat, 9 Sep 2000 07:16:56 -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 HAA06440 for ; Sat, 9 Sep 2000 07:16:54 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 9 Sep 2000 13:08:07 +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, 9 Sep 2000 12:53:40 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 9 Sep 2000 12:53:40 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Movies available on Internet within a year. Message-ID: <20000909125340.A21402@lemuria.org> References: <39B994CD.5FE0D599@caprock-spur.com> <20000909031223.J5377@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000909031223.J5377@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: > "We are raising a generation who believe that if it's on the Internet, it's > free," he said. "They call it 'file sharing,' but there's no other word for it > but theft." --Jack Valenti > > Who writes his histrionic scripts? She deserves an Oscar. > Jack, come and get it at http://www.eldritchpress.org/ -- > it's free, and you can share it (if you can really read) > but please don't steal it and try to sell it, it belongs > to the public, not you. this reminds me of Robin Hood - who stole from the rich to return to the public what had been taken away by said rich. george lucas - almost all ideas in his star wars series are taken from the public domain, from legends, folk tales and other sources. he accumulated them and turned them into a sci-fi theme. his work was so pervasive that it by now has entered the public domain on it's own - maybe not on the papers of his legal bloodhounds, but in reality, it's become part of at least one culture (geek culture). still, one of your MPAA members, mr. valenti, is still ripping the public off, even suppressing their own creativity (fan-fiction) at times. there's only one thief in this room, and he's old and ugly. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 11:35:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07560 for dvd-discuss-outgoing; Sat, 9 Sep 2000 11:35:36 -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 LAA07557 for ; Sat, 9 Sep 2000 11:35:35 -0400 Message-ID: <20000909153559.16998.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Sat, 09 Sep 2000 08:35:59 PDT Date: Sat, 9 Sep 2000 08:35:59 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 --- "James S. Tyre" wrote: > At 05:22 PM 9/8/2000 -0400, Dan Steinberg wrote: > >V Recusal? dont go there. Not our place to ask. > Strongly seconded. Shucks. But it's so much fun to bash Kaplan :-] > Going one step further, the best amicus briefs are those which play > to the particular strengths of the amici, not those which seek > to argue most everything. And remember that Openlaw's will not > be the only amicus. Point taken. > I am not at all set on this, but my preliminary thought is to scale > it back to IA, B (tied to A with technical examples), D, E, F, > II, maybe III (the second III ;-) the first III is a weak > argument, IMO). Despite two degrees in mathematics, I still have trouble with counting. I'll change IC (DMCA not within Congressional Power) to a "we defer to others better positioned" type argument. I think we should, however emphasize that Kaplan did not do his duty to lay out the reasoning, and that it is disputable. The point that I wanted to make about encryption research, we the point that several of us made in a thread last week: the law can't provide a "PhD's" only exception. Derivitive explainations DO advance the state of knowledge. Any attempt to qualify the message by WHO is giving it should fail. Looking back, I think 1E8 is probably adequate for this point. > As a nit to pick, I don't like the concept of IA1c. Despite an > earlier lengthy post to the contrary (don't remember by whom), > the jurisprudence really doesn't (and shouldn't) draw > relevant distinctions between freedom of the press and freedom > of speech. I was just trying to emphasize the "pure speech" nature of the 2600 magazine. I can reword this to avoid the issues you raise. I'll try to update the outline and repost sometime today or tomorrow. __________________________________________________ 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 Sep 9 11:43:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07684 for dvd-discuss-outgoing; Sat, 9 Sep 2000 11:43:10 -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 LAA07681 for ; Sat, 9 Sep 2000 11:43:09 -0400 Message-ID: <20000909154333.25423.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Sat, 09 Sep 2000 08:43:33 PDT Date: Sat, 9 Sep 2000 08:43:33 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] love letter from the 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 --- Tom Vogt wrote: > AND they skipped the "even if you are not bound by this injunction" > part this time. I consider this letter threat and harrassment. is > there anything I can do to stop this, like sending THEM a > cease&desist letter? Does a cease & desist letter have any special status under the law? I've always assumed that it was just an ordinary communication as part of a "negotiation" to avoid a lawsuit. If I'm wrong could somebody please confirm? __________________________________________________ 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 Sep 9 12:36:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08410 for dvd-discuss-outgoing; Sat, 9 Sep 2000 12:36:00 -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 MAA08407 for ; Sat, 9 Sep 2000 12:35:55 -0400 Received: from cdpage.com (jdsl223.dnvr.uswest.net [206.196.156.223]) by web55.ntx.net (8.8.5/8.7.3) with ESMTP id JAA03113 for ; Sat, 9 Sep 2000 09:37:15 -0700 (PDT) Message-ID: <39BA64D3.ECF8222E@cdpage.com> Date: Sat, 09 Sep 2000 10:27:00 -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] Check this out Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.hacksdmi.org/home.htm -- Dana J. Parker DVD Diva http://www.cdpage.com mailto:danapark@ix.netcom.com From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 12:52:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08564 for dvd-discuss-outgoing; Sat, 9 Sep 2000 12:52:11 -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 MAA08561 for ; Sat, 9 Sep 2000 12:52:10 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id MAA07470 for ; Sat, 9 Sep 2000 12:53:05 -0400 (EDT) Date: Sat, 9 Sep 2000 12:53:05 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss Subject: Re: [dvd-discuss] Check this out In-Reply-To: <39BA64D3.ECF8222E@cdpage.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 9 Sep 2000, Dana Parker wrote: > > http://www.hacksdmi.org/home.htm > -- By successfully breaking the SDMI protected content, you will play a role in determining what technology SDMI will adopt. And there is something more in it for you, too. If you can remove the watermark or defeat the other technology on our proposed copyright protection system, you may earn up to $10,000. Gee. the chance to be a part of SDMI sounds _so_ exciting. UUnless of course, this will quarentee widespread hardware compatibility... Given that I could potentially "earn" much more than $10,000 by exploiting a weak system, I think I'll pass. :) Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 13:20:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09508 for dvd-discuss-outgoing; Sat, 9 Sep 2000 13:20:06 -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 NAA09505 for ; Sat, 9 Sep 2000 13:20:05 -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 NAA17651 for ; Sat, 9 Sep 2000 13:20:59 -0400 (EDT) Message-ID: <39BA717A.5E94E3CD@mediaone.net> Date: Sat, 09 Sep 2000 13:20:58 -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] [Fwd: I'm trying to find ways] Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Any other suggestions for spreading descramble.mp3? Joseph Wecker wrote: > > Thanks! You rock. > We'll have a clearer, uh... better version up on mp3.com within a day or so > (if their legal team approves). (www.mp3.com/DontEatPete) Do everything you > can to spread the word: I think 2600 knows about it (though I'm not sure)- > I think the best thing would be to get college radio stations to play it > etc... > > later > joe > > ----- Original Message ----- > From: "Sphere" > To: > Sent: Friday, September 08, 2000 6:40 PM > Subject: I'm trying to find ways > > | > | to provide descramble more exposure. I should > | ask your permission to spread it around. > | > | One thought I've had is to get 2600.com to > | put it up. I've just started on that idea. > | > | > | -- > | Sphere. > | > | Government has no legitimate interest in > | protecting a monopoly from free speech. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 13:19:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09500 for dvd-discuss-outgoing; Sat, 9 Sep 2000 13:19:59 -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 NAA09497 for ; Sat, 9 Sep 2000 13:19:58 -0400 Received: from ip93.bedford3.ma.pub-ip.psi.net ([38.32.11.93]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13XoJA-00030U-00 for dvd-discuss@eon.law.harvard.edu; Sat, 09 Sep 2000 13:20:52 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Check this out Date: Sat, 09 Sep 2000 13:23:36 -0400 Message-ID: References: <39BA64D3.ECF8222E@cdpage.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 NAA09498 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 9 Sep 2000 12:53:05 -0400 (EDT), Jeremy A Erwin wrote: > >On Sat, 9 Sep 2000, Dana Parker wrote: > >> >> http://www.hacksdmi.org/home.htm >> -- > >By successfully breaking the SDMI protected content, you will play a role >in determining what technology SDMI will adopt. And there is something >more in it for you, too. If you can remove the watermark or defeat the >other technology on our proposed copyright protection system, you may earn >up to $10,000. I'd hold out for royalties. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 13:32:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09889 for dvd-discuss-outgoing; Sat, 9 Sep 2000 13:32:30 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09885 for ; Sat, 9 Sep 2000 13:32:29 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13XoVH-0002pZ-00; Sat, 9 Sep 2000 19:33:23 +0200 Received: from localhost by sites.inka.de with local id 13XoVJ-0004fi-00; Sat, 9 Sep 2000 19:33:25 +0200 Date: Sat, 9 Sep 2000 19:33:25 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [Fwd: I'm trying to find ways] Message-ID: <20000909193325.A3139@inka.de> References: <39BA717A.5E94E3CD@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39BA717A.5E94E3CD@mediaone.net>; from sphere1952@mediaone.net on Sat, Sep 09, 2000 at 01:20:58PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Sep 09, 2000 at 01:20:58PM -0400, Sphere wrote: > > Any other suggestions for spreading descramble.mp3? The obvious - put it on Napster. However, make sure the name contains "decss", I expect it's more liekly to be searched for than "descramble". 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 Sat Sep 9 13:38:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA10004 for dvd-discuss-outgoing; Sat, 9 Sep 2000 13:38:42 -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 NAA10001 for ; Sat, 9 Sep 2000 13:38:41 -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 NAA07847 for ; Sat, 9 Sep 2000 13:39:35 -0400 (EDT) Message-ID: <39BA75D7.9DDAFB7E@mediaone.net> Date: Sat, 09 Sep 2000 13:39:35 -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] [Fwd: I'm trying to find ways] References: <39BA717A.5E94E3CD@mediaone.net> <20000909193325.A3139@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 Sat, Sep 09, 2000 at 01:20:58PM -0400, Sphere wrote: > > > > Any other suggestions for spreading descramble.mp3? > > The obvious - put it on Napster. However, make sure the name contains > "decss", I expect it's more liekly to be searched for than "descramble". > > Sham I've corrected my filename. :) Joseph Wecker - decss - Descramble.mp3 > -- > 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) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 15:55:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA10986 for dvd-discuss-outgoing; Sat, 9 Sep 2000 15:55:24 -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 PAA10983 for ; Sat, 9 Sep 2000 15:55:23 -0400 Received: from jy01 (user-2inihhu.dialup.mindspring.com [165.121.70.62]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id PAA01836 for ; Sat, 9 Sep 2000 15:56:17 -0400 (EDT) Message-Id: <200009091956.PAA01836@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 09 Sep 2000 15:47:23 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Kaplan Again Revises Order In-Reply-To: References: <39BA64D3.ECF8222E@cdpage.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is the entire 1-page order from Court Web which did not have the attached corrected pages (anybody have the corrected pages?): UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - x UNIVERSAL CITY STUDIOS, INC., et al., Plaintiffs, -against- 00 Civ. 0277 (LAK) SHAWN C. REIMERDES, et al., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - x ORDER LEWIS A. KAPLAN, District Judge. The Court’s opinion, dated August 17, 2000, is amended by substituting the attached corrected pages 6 and 58-62 for the corresponding original pages. SO ORDERED. Dated: September 6, 2000 _______________________________________ Lewis A. Kaplan United States District Judge ----- From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 17:42:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12087 for dvd-discuss-outgoing; Sat, 9 Sep 2000 17:42:56 -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 RAA12084 for ; Sat, 9 Sep 2000 17:42:55 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA23475 for dvd-discuss@eon.law.harvard.edu; Sat, 9 Sep 2000 16:43:49 -0500 Date: Sat, 9 Sep 2000 16:43:48 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000909164348.A23451@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000818170422.C1777@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: ; from jtfrog@usa.net on Sat, Sep 09, 2000 at 12:47:44AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Sep 09, 2000 at 12:47:44AM -0700, Jim Taylor wrote: > Eric Eldred, on Friday, August 18, 2000 2:04 PM, wrote > >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. > > > >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. > (snip part of Jim's response) > > Licensing CSS will not work, since using a non-approved player key violates > the license. You would then be subject to legal action. Note also that CSS > is only allowed to be used for audio/video, not software data files. You > could hide data files in VOBs, but even that could probably be argued to be > a violation of the license. Now that's kind of interesting- they're limiting the uses of CSS in ways that really have no connection at all to copyright infringement. It kind of lends weight to the argument that the DVDCCA/MPAA trust is misusing their "paracopyright" protection to control the market in arbitrary ways. Eric From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 18:32:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12462 for dvd-discuss-outgoing; Sat, 9 Sep 2000 18:32:22 -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 SAA12459 for ; Sat, 9 Sep 2000 18:32:21 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id QAA24457 for ; Sat, 9 Sep 2000 16:33:16 -0600 Date: Sat, 9 Sep 2000 16:33:16 -0600 (MDT) From: John Galt To: dvd-discuss Subject: Re: [dvd-discuss] [Fwd: I'm trying to find ways] In-Reply-To: <39BA717A.5E94E3CD@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 Get a competent singer/musician to sing it? Hell, this guy makes Tiny Tim sound good... On Sat, 9 Sep 2000, Sphere wrote: > > Any other suggestions for spreading descramble.mp3? > > > Joseph Wecker wrote: > > > > Thanks! You rock. > > We'll have a clearer, uh... better version up on mp3.com within a day or so > > (if their legal team approves). (www.mp3.com/DontEatPete) Do everything you > > can to spread the word: I think 2600 knows about it (though I'm not sure)- > > I think the best thing would be to get college radio stations to play it > > etc... > > > > later > > joe > > > > ----- Original Message ----- > > From: "Sphere" > > To: > > Sent: Friday, September 08, 2000 6:40 PM > > Subject: I'm trying to find ways > > > > | > > | to provide descramble more exposure. I should > > | ask your permission to spread it around. > > | > > | One thought I've had is to get 2600.com to > > | put it up. I've just started on that idea. > > | > > | > > | -- > > | Sphere. > > | > > | Government has no legitimate interest in > > | protecting a monopoly from free speech. > > -- Who is John Galt? Failure is not an option. It comes bundled with your Microsoft product. -- Ferenc Mantfeld From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 18:57:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12720 for dvd-discuss-outgoing; Sat, 9 Sep 2000 18:57:14 -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 SAA12717 for ; Sat, 9 Sep 2000 18:57:14 -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 SAA03585 for ; Sat, 9 Sep 2000 18:58:08 -0400 (EDT) Message-ID: <39BAC07F.E20D1D13@mediaone.net> Date: Sat, 09 Sep 2000 18:58:07 -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] [Fwd: I'm trying to find ways] 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 What? You don't like grunge? Actually, I listened to something else of his which wasn't half bad, and I understand that he's going to have a better version of it out soon. (Not that I expect it to be _good_, but I don't really care. I'd like to hear you try to sing C code.) I find some of Pete Seeger's latest less than sonorous too, but it's still the best folk around. Pete's 81 years old now. I've moved 8 or so copies of the song on Napster since I added 'decss' to the name earlier today. That's the only real number I have. And moving it's all that really matters. DeCSS has got to be political speech in order to win. John Galt wrote: > > Get a competent singer/musician to sing it? Hell, this guy makes Tiny Tim > sound good... > > On Sat, 9 Sep 2000, Sphere wrote: > > > > > Any other suggestions for spreading descramble.mp3? > > > > > > Joseph Wecker wrote: > > > > > > Thanks! You rock. > > > We'll have a clearer, uh... better version up on mp3.com within a day or so > > > (if their legal team approves). (www.mp3.com/DontEatPete) Do everything you > > > can to spread the word: I think 2600 knows about it (though I'm not sure)- > > > I think the best thing would be to get college radio stations to play it > > > etc... > > > > > > later > > > joe > > > > > > ----- Original Message ----- > > > From: "Sphere" > > > To: > > > Sent: Friday, September 08, 2000 6:40 PM > > > Subject: I'm trying to find ways > > > > > > | > > > | to provide descramble more exposure. I should > > > | ask your permission to spread it around. > > > | > > > | One thought I've had is to get 2600.com to > > > | put it up. I've just started on that idea. > > > | > > > | > > > | -- > > > | Sphere. > > > | > > > | Government has no legitimate interest in > > > | protecting a monopoly from free speech. > > > > > > -- > Who is John Galt? > > Failure is not an option. It comes bundled with your Microsoft product. > -- Ferenc Mantfeld -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 20:29:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13228 for dvd-discuss-outgoing; Sat, 9 Sep 2000 20:29:14 -0400 Received: from mail1.registeredsite.com (mail1.registeredsite.com [209.35.159.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA13225 for ; Sat, 9 Sep 2000 20:29:13 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by mail1.registeredsite.com (8.9.3/8.9.3) with ESMTP id TAA02364 for ; Sat, 9 Sep 2000 19:31:42 -0400 Received: from [24.14.203.65] [24.14.203.65] by mail.nearside.com with ESMTP (SMTPD32-6.00) id A60E129500EE; Sat, 09 Sep 2000 20:30:06 -0400 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Sat, 09 Sep 2000 20:30:06 -0400 Subject: Re: [dvd-discuss] My letter to the Honorable Lamar Smith From: Jed Borod To: Message-ID: In-Reply-To: <20000907215949.22748.qmail@web118.yahoomail.com> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu on 9/7/00 5:59 PM, Tuyet A. Ngoc Tran wrote: > Just a suggestion, you (and others) might want to get > better attn. the Media Coordinator or Manager's name > for Rep Smith and send another copy to that person. > It's more than likely that legislative aide is > somewhere in your area rather than the DC office. > Channeling to the right person & the result is pretty > direct. If you send a letter to your representative via the House's website, it simply gets printed out and given to the Representative. If you send the letter, hardcopy, but just address it to the Representative, it will probably be opened, read, and dumped into a constituent mail pile. The best approach is to send it to your representative, but put something like Attn: Telecommunications LA or Attn: Science & Technology Legislative Assistant -- Jed Borod From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 21:18:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13543 for dvd-discuss-outgoing; Sat, 9 Sep 2000 21:18:24 -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 VAA13540 for ; Sat, 9 Sep 2000 21:18:23 -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 VAA17354 for ; Sat, 9 Sep 2000 21:19:18 -0400 (EDT) Message-ID: <39BAE196.BC271E74@mediaone.net> Date: Sat, 09 Sep 2000 21:19:18 -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] My letter to the Honorable Lamar Smith 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 9/7/00 5:59 PM, Tuyet A. Ngoc Tran wrote: > > > Just a suggestion, you (and others) might want to get > > better attn. the Media Coordinator or Manager's name > > for Rep Smith and send another copy to that person. > > It's more than likely that legislative aide is > > somewhere in your area rather than the DC office. > > Channeling to the right person & the result is pretty > > direct. > > If you send a letter to your representative via the House's website, it > simply gets printed out and given to the Representative. If you send the > letter, hardcopy, but just address it to the Representative, it will > probably be opened, read, and dumped into a constituent mail pile. The best > approach is to send it to your representative, but put something like Attn: > Telecommunications LA or Attn: Science & Technology Legislative Assistant > > -- > Jed Borod > Is there such a thing as 1st Amendment LA? ;) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 21:38:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13733 for dvd-discuss-outgoing; Sat, 9 Sep 2000 21:38:11 -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 VAA13730 for ; Sat, 9 Sep 2000 21:38:10 -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 VAA25469 for ; Sat, 9 Sep 2000 21:39:04 -0400 (EDT) Message-ID: <39BAE639.BD9C2586@mediaone.net> Date: Sat, 09 Sep 2000 21:39:05 -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] The nature of the fight. Content-Type: text/plain; charset=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 fundamentally a political fight, and we need to cast it in those terms. As long as the opposition can cast this in economic terms we lose. If the political nature of this opposition between individual speech and monopolistic power is made clear we win. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 22:06:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13950 for dvd-discuss-outgoing; Sat, 9 Sep 2000 22:06:56 -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 WAA13947 for ; Sat, 9 Sep 2000 22:06:55 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 10 Sep 2000 03:58:13 +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, 10 Sep 2000 03:16:25 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 10 Sep 2000 03:16:25 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000910031624.A24358@lemuria.org> References: <20000818170422.C1777@eldritchpress.org> <20000909164348.A23451@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000909164348.A23451@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: > Now that's kind of interesting- they're limiting the uses of CSS in ways > that really have no connection at all to copyright infringement. welcome to the real world. unskippable ads, anyone? I wonder what that's got to do with piracy. > It kind > of lends weight to the argument that the DVDCCA/MPAA trust is misusing > their "paracopyright" protection to control the market in arbitrary ways. that's obvious by now, isn't it? what we need is a short but convincing argument to show this to the ignorant. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 22:30:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA14157 for dvd-discuss-outgoing; Sat, 9 Sep 2000 22:30:18 -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 WAA14154 for ; Sat, 9 Sep 2000 22:30:18 -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 WAB11576 for ; Sat, 9 Sep 2000 22:31:13 -0400 (EDT) Message-ID: <39BAF271.1E6DB16F@mediaone.net> Date: Sat, 09 Sep 2000 22:31:13 -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] introduction References: <20000818170422.C1777@eldritchpress.org> <20000909164348.A23451@thud.reric.net> <20000910031624.A24358@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: > > Eric Seppanen wrote: > > Now that's kind of interesting- they're limiting the uses of CSS in ways > > that really have no connection at all to copyright infringement. > > welcome to the real world. unskippable ads, anyone? I wonder what that's > got to do with piracy. > > > It kind > > of lends weight to the argument that the DVDCCA/MPAA trust is misusing > > their "paracopyright" protection to control the market in arbitrary ways. > > that's obvious by now, isn't it? what we need is a short but convincing > argument to show this to the ignorant. Forget short and convincing. What we need is polical volume. what are our various timelines? I'm very unclear upon how much time we've got for what (in court, in committee, in congress, etc.). > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 9 23:24:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14466 for dvd-discuss-outgoing; Sat, 9 Sep 2000 23:24:33 -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 XAA14463 for ; Sat, 9 Sep 2000 23:24:15 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 721A45DB for ; Sat, 9 Sep 2000 22:12:18 -0500 (CDT) Date: Sat, 9 Sep 2000 22:12:18 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Check this out 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, 9 Sep 2000, Dana Parker wrote: > > > >> > >> http://www.hacksdmi.org/home.htm > >> -- > > > >By successfully breaking the SDMI protected content, you will play a role > >in determining what technology SDMI will adopt. And there is something > >more in it for you, too. If you can remove the watermark or defeat the > >other technology on our proposed copyright protection system, you may earn > >up to $10,000. Hmmmm... Here's how to crack SDMI, step by step. 1. Dig through closet - find old tape recorder. 2. Insert Blank Tape. 3. Press Record on the tape player 4. Click "Play" on the computer. Done! You could even hook the audio cables together, if you want to get fancy. Where's my 10K? ;-) -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 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 / <_/ / / < / (_; Sat, 9 Sep 2000 23:33:11 -0400 Received: from swbell.net ([64.216.211.47]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0N00J4PI77T5@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sat, 9 Sep 2000 22:11:31 -0500 (CDT) Date: Sat, 09 Sep 2000 22:03:10 -0500 From: Jolley Subject: Re: [dvd-discuss] introduction To: dvd-discuss@eon.law.harvard.edu Message-id: <39BAF9EE.4001B848@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: <20000818170422.C1777@eldritchpress.org> <20000909164348.A23451@thud.reric.net> <20000910031624.A24358@lemuria.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: > > Eric Seppanen wrote: > > Now that's kind of interesting- they're limiting the uses of CSS in ways > > that really have no connection at all to copyright infringement. > > welcome to the real world. unskippable ads, anyone? I wonder what that's > got to do with piracy. > This brings up the question is "forced access" of ads an abuse of access control and therefore a misuse of their paracopyright protection? The MPAA's view: If you pirate the content of a DVD except the unskippable ads then you are a really, really, bad, evil pirate. Translation of MPAA's view: If you make fair use of the content of a DVD except the unskippable ads then you are a really, really, bad, evil consumer. > > It kind > > of lends weight to the argument that the DVDCCA/MPAA trust is misusing > > their "paracopyright" protection to control the market in arbitrary ways. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 01:47:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA17055 for dvd-discuss-outgoing; Sun, 10 Sep 2000 01:47:22 -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 BAA17052 for ; Sun, 10 Sep 2000 01:47:06 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sun, 10 Sep 2000 07:35:43 +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, 10 Sep 2000 04:48:38 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sun, 10 Sep 2000 04:48:38 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000910044838.A24807@lemuria.org> References: <20000818170422.C1777@eldritchpress.org> <20000909164348.A23451@thud.reric.net> <20000910031624.A24358@lemuria.org> <39BAF271.1E6DB16F@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39BAF271.1E6DB16F@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: > Forget short and convincing. What we need is polical volume. you can write a volume when you got people hooked. as long as they buy the MPAA party line, they won't read it. > what are our various timelines? I'm very unclear upon > how much time we've got for what (in court, in committee, > in congress, etc.). don't forget the rest of the world. if lots of other countries strongly oppose this corporate power grabbing, it just might start a change in the US. and it might be easier to convince said other countries, because a) they don't have a DMCA law and b) they're on the receiving end of the various MPAA price-fixing and market segmentation schemes. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 04:25:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA18117 for dvd-discuss-outgoing; Sun, 10 Sep 2000 04:25:01 -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 EAA18114 for ; Sun, 10 Sep 2000 04:24:56 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Y2Qv-0003bt-00; Sun, 10 Sep 2000 10:25:49 +0200 Received: from localhost by sites.inka.de with local id 13Y2Qx-0001Mw-00; Sun, 10 Sep 2000 10:25:51 +0200 Date: Sun, 10 Sep 2000 10:25:51 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] introduction Message-ID: <20000910102551.A18476@inka.de> References: <20000818170422.C1777@eldritchpress.org> <20000909164348.A23451@thud.reric.net> <20000910031624.A24358@lemuria.org> <39BAF271.1E6DB16F@mediaone.net> <20000910044838.A24807@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000910044838.A24807@lemuria.org>; from tom@lemuria.org on Sun, Sep 10, 2000 at 04:48:38AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Sep 10, 2000 at 04:48:38AM +0200, Tom Vogt wrote: > Sphere wrote: > > Forget short and convincing. What we need is polical volume. > > you can write a volume when you got people hooked. I think he means volume as in loudness, not a volume as in a book. 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 Sep 10 04:45:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA18308 for dvd-discuss-outgoing; Sun, 10 Sep 2000 04:45:03 -0400 Received: from eperke.themail.com (root@eperke.themail.com [216.64.18.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA18305 for ; Sun, 10 Sep 2000 04:44:59 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.154]) by eperke.themail.com (8.9.3/8.9.3) with SMTP id EAA67492 for ; Sun, 10 Sep 2000 04:47:28 -0500 (EST) (envelope-from mw@themail.com) Date: Sun, 10 Sep 2000 04:47:28 -0500 (EST) Message-Id: <200009100947.EAA67492@eperke.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DMCA OPINION/COMMENTS WANTED X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 216.67.96.78 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_91_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_91_Boundary___ Content-type: text/plain HI, As some of you may already know, I'm putting together a little compilation of DMCA opinions. I want to have it printed and ready to deliver for OCT. 28. (a good date...) Of course, I anticipate finishing the compilation of opinions, along with a little background info and My Humble Opinion AND I plan to get it to members of Congress et al on OCT 28. Anyone who would be so kind as to contribute an opinion on the DMCA in say.... 50-350 words (can go more if you desire... ) Please email me at: marcia@linuxstart.com Also, I need your permission to print it, or publish it whatever, just a sentence in the mail/email giving me permission --> wouldn't want to infringe on anyone's rights... laters, -marcia __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_91_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 09:29:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19673 for dvd-discuss-outgoing; Sun, 10 Sep 2000 09:29:08 -0400 Received: from iei.explorecalgary.com ([209.197.134.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA19670 for ; Sun, 10 Sep 2000 09:29:07 -0400 Received: from [24.115.36.227] by iei.neurosis.org (NTMail 5.02.0001/LC0008.00.11c4cb1f) with ESMTP id eynhaaaa for dvd-discuss@eon.law.harvard.edu; Sun, 10 Sep 2000 07:31:10 -0600 From: "erik" To: Subject: RE: [dvd-discuss] mpaa23 details Date: Sun, 10 Sep 2000 06:29:28 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <20000908230354.A10209@lemuria.org> X-Mimeole: Produced By Microsoft MimeOLE V5.00.2615.200 Importance: Normal X-Info: DeCSS Now! http://www.neurosis.org/dvd/decss.zip Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Interestingly enough the first round of "letters" came from MPAA.23@Gateway.net, not mpaa23@pacbell.net Whois on gateway.net returns: Domain Name: GATEWAY.NET Registrant: America Online, Inc. 22000 AOL Way Dulles, VA 20166 US Created on..............: Apr 11, 2000 Expires on..............: Sep 21, 2002 Record Last Updated on..: Apr 12, 2000 Administrative Contact: Domain Administration, AOL domains@aol.net 703 265 4670 Technical Contact: Domain Administration, AOL domains@aol.net 703 265 4670 Billing Contact: Domain Administration, AOL domains@aol.net 703 265 4670 Domain servers: dns-03.ns.aol.com 152.163.159.238 dns-04.ns.aol.com 205.188.157.238 /erik > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Tom Vogt > Sent: Friday, September 08, 2000 2:04 PM > To: decss@lists.lemuria.org; dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] mpaa23 details > > > > some details on the mpaa23 sender. > > the machine sending these e-mails is a windows machine sitting on > a pacbell ADSL line. it's got the usual windoze ports open for all the > world to see. definitely not someone with much technical know-how. > > > I wrote a spam complaint to pacbell.net, asking them to terminate this > user account and provide me with name and address of the owner. I wrote > that mail using my postmaster address, so maybe they'll take it > seriously. > > the whois entry to mpaa.org reads: > > > Registrant: > THE MOTION PICTURE ASSOCIATIONOF AMERICA, INC. (MPAA-DOM) > 15503 Ventura Boulevard > Encino, CA 91436 > US > > Domain Name: MPAA.ORG > > Administrative Contact, Billing Contact: > Egge, Paul (PE420) pegge@MPAA.ORG > MPAA > 15503 Ventura Boulevard > Encino, CA 91436 > 818-995-6600 (FAX) 818-382-1795 > Technical Contact, Zone Contact: > Pilot Network Services, Inc. (PILOT3) hostinfo@PILOT.NET > Network Information and Support Center > 1080 Marina Village Parkway > Alameda, CA 94501 > US > (510) 433-7890 > > Record last updated on 14-Jun-2000. > Record expires on 23-Aug-2000. > Record created on 22-Aug-1995. > Database last updated on 7-Sep-2000 17:50:52 EDT. > > Domain servers in listed order: > > NS.PILOT.NET 198.232.147.10 > NS13.PILOT.NET 198.232.147.13 > > > pilot.net is - unsurprisingly - a hosting service. they're especially > proud of their security: > > "Protection from hackers, viruses, and other threats is built > into the Pilot > network with a unique, distributed security architecture [...]" > > From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 09:52:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19870 for dvd-discuss-outgoing; Sun, 10 Sep 2000 09:52:22 -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 JAA19867 for ; Sun, 10 Sep 2000 09:52:20 -0400 Received: from Jana-Server (user-38ld14g.dialup.mindspring.com [209.86.132.144]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id JAA23204 for ; Sun, 10 Sep 2000 09:53:11 -0400 (EDT) Message-ID: <39BB9240.6A9C0FD4@mindspring.com> Date: Sun, 10 Sep 2000 09:53:04 -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] mpaa23 details Content-Type: text/plain; charset=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, 8 Sep 2000 23:03:54 +0200, Tom Vogt wrote: > > >the second interesting thing from above is that there ARE e-mail > >addresses @mpaa.org - so why don't they use them? aside from pegge, > >their webpage also mentions a "hotline@mpaa.org" address, so these > >addresses ARE in use. > > I suspect they want to email from a dynamic IP address so they > can deny sending the emails if things don't go their way. > > You'd have to subpoena Pacific Bell to get the identity of mpaa23. > (Now, that's an idea...) > I found another address from that domain, along with comments: http://www.wia.org/pub/doc-dns-nprm.html 23-Mar 9e Bonnie Richardson brichard@mpaa.org Motion Picture Association of America (MPAA) In comments to NTIA: "MPAA believes that a 30 day pre-registration period is not unreasonable and would be very useful. This pre-registration period would allow third parties to object to the new name before it is registered and before business under the new domain name commenced. " From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 10:11:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA20116 for dvd-discuss-outgoing; Sun, 10 Sep 2000 10:11:08 -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 KAA20113 for ; Sun, 10 Sep 2000 10:11:07 -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 KAA10140 for ; Sun, 10 Sep 2000 10:12:04 -0400 (EDT) Message-ID: <39BB96B4.CBE0B792@mediaone.net> Date: Sun, 10 Sep 2000 10:12:04 -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: <20000818170422.C1777@eldritchpress.org> <20000909164348.A23451@thud.reric.net> <20000910031624.A24358@lemuria.org> <39BAF271.1E6DB16F@mediaone.net> <20000910044838.A24807@lemuria.org> <20000910102551.A18476@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 Sun, Sep 10, 2000 at 04:48:38AM +0200, Tom Vogt wrote: > > Sphere wrote: > > > Forget short and convincing. What we need is polical volume. > > > > you can write a volume when you got people hooked. > > I think he means volume as in loudness, not a volume as in a book. Volume as in number of people, but a little screaming might be in order. > 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) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 10:49:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA20710 for dvd-discuss-outgoing; Sun, 10 Sep 2000 10:49:59 -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 KAA20707 for ; Sun, 10 Sep 2000 10:49:58 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id KAA22429 for ; Sun, 10 Sep 2000 10:50:55 -0400 (EDT) Date: Sun, 10 Sep 2000 10:50:55 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details In-Reply-To: <39BB9240.6A9C0FD4@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, 10 Sep 2000, mickeym wrote: > > On Fri, 8 Sep 2000 23:03:54 +0200, Tom Vogt wrote: > > > > >the second interesting thing from above is that there ARE e-mail > > >addresses @mpaa.org - so why don't they use them? aside from pegge, > > >their webpage also mentions a "hotline@mpaa.org" address, so these > > >addresses ARE in use. > > > > I suspect they want to email from a dynamic IP address so they > > can deny sending the emails if things don't go their way. > > > > You'd have to subpoena Pacific Bell to get the identity of mpaa23. > > (Now, that's an idea...) > > > > I found another address from that domain, along with comments: > http://www.wia.org/pub/doc-dns-nprm.html > > 23-Mar 9e Bonnie Richardson > brichard@mpaa.org Motion Picture Association of America (MPAA) > > In comments to NTIA: > > "MPAA believes that a 30 day pre-registration period is not unreasonable > and would be very useful. This pre-registration period would allow third > parties to object to the new name before it is registered and before > business under the new domain name commenced. " > Searching for mppa23@dejanews.com (It's beenn strip mines, yes, but is still occasionally useful) yielded the following message " ouch !, Im very new to this but i believe he got off lucky, am i correct ? Isnt this just a notice to cease and decest ? "Josh Hadley" wrote in message news:14651-392D71AC-29@storefull-286.iap.bryant.webtv.net... I got this in the mail today. Is it for real? Please e-mail if you have any info. MOTION PICTURE ASSOCIATION OF AMERICA, INC. 15503 VENTURA BOULEVARD ENCINO, CALIFORNIA 91436 UNITED STATES Anti-Piracy Operations PHONE: (818) 728-8127 Email: MPAA23@pacbell.net May 24, 2000 Anthony P. Coll Guidelines Enforcement Lead GeoCities, Inc. 3400 Central Expressway Santa Clara, CA 95051 Acoll@yahoo-inc.com RE: Unauthorized Distribution of Copyrighted Motion Pictures Site: geocities.com/snowowl12/ MPAA File#: 5-545-509 Dear Anthony P. Coll: The Motion Picture Association of America (MPAA) represents the following motion picture production and distribution companies: Columbia Pictures Industries, Inc. Disney Enterprises, Inc. Metro-Goldwyn-Mayer Studios Inc. Paramount Pictures Corporation TriStar Pictures, Inc. Twentieth Century Fox Film Corporation United Artists Pictures, Inc. United Artists Corporation Universal City Studios, Inc. Warner Bros., a Division of Time Warner Entertainment Company, L.P. We received information that your ISP is hosting the above-referenced Internet site which is offering to distribute unauthorized videocassettes of copyrighted motion pictures including such titles) as "The Crow" workprint, "American History X" workprint" and the television series "The Sopranos". The distribution of unauthorized copies of copyrighted motion pictures constitutes copyright infringement under the Copyright Act, Title 17 United States Code 106(3). We request that you immediately remove this site from your server and terminate the account of the account-holder for this site. We also request that you provide us with the name, email address, street address, and fax and phone numbers for the account-holder. By copy of this letter, the owner of the above-referenced URL and/or email account is hereby directed to cease and desist from the conduct complained of herein. On behalf of the respective owners of the exclusive rights to the copyrighted material at issue in this notice, we hereby state that we have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, their respective agents, or the law. We hereby state, under penalty of perjury, under the laws of the State California and under the laws of the United States, that the information in this notification is accurate and that we are authorized to act on behalf of the owners of the exclusive rights being infringed as set forth in this notification. Please contact us at the above listed address should you have any questions. We thank you for your cooperation in this matter. Your prompt response is requested. Respectfully, The Motion Picture Association of America " Perhaps it's a legal 'bot... Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 13:09:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22519 for dvd-discuss-outgoing; Sun, 10 Sep 2000 13:09:49 -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 NAA22516 for ; Sun, 10 Sep 2000 13:09:46 -0400 Received: from ip143.bedford2.ma.pub-ip.psi.net ([38.32.10.143]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13YAct-0004w1-00 for dvd-discuss@eon.law.harvard.edu; Sun, 10 Sep 2000 13:10:43 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DMCA's vendors Date: Sun, 10 Sep 2000 13:13:31 -0400 Message-ID: <31gnrsch1mna1m64ih3nh5tflgod19ttmr@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 NAA22517 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sometimes it takes a billionaire to say the emperor has no clothes. Warren Buffet on Congressional vendors... http://www.nytimes.com/2000/09/10/opinion/10BUFF.html "And the game has barely started. For most supplicants, cost still lags ridiculously far behind value. American business spends $200 billion a year on advertising to influence consumers. In many industries -- communications, tobacco, banking, pharmaceuticals and insurance among them -- political influence can sometimes be of similar commercial importance. It also matters critically to such professionals as lawyers, doctors, and teachers. Absent reform, these interest groups will continue to ante up for political influence, accepting the soaring prices that the vendors demand. These vendors, however, maintain that it's all O.K. They argue that a contribution may buy access and empathy but are shocked --shocked! -- at the thought that it could influence their vote." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 14:32:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23285 for dvd-discuss-outgoing; Sun, 10 Sep 2000 14:32:35 -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 OAA23282 for ; Sun, 10 Sep 2000 14:32:34 -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 OAA13195 for ; Sun, 10 Sep 2000 14:33:31 -0400 (EDT) Message-ID: <39BBD3FA.2BBD29DB@mediaone.net> Date: Sun, 10 Sep 2000 14:33:30 -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] deCSS on MP3.COM Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The song is number one today on the World/Folk chart at MP3.COM. It went from 144 listeners day before yesterday (it's first day) to 1,047 unique listeners yesterday. I don't know how to turn this into the legal point we need that deCSS is a political movement, but a political movement it is. People aren't listening for it's melodic content any more than they listened to "Alice's Restaurant" for the melody. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 10 14:57:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23766 for dvd-discuss-outgoing; Sun, 10 Sep 2000 14:57:46 -0400 Received: from web114.yahoomail.com (web114.yahoomail.com [205.180.60.86]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA23763 for ; Sun, 10 Sep 2000 14:57:45 -0400 Received: (qmail 18178 invoked by uid 60001); 10 Sep 2000 18:58:39 -0000 Message-ID: <20000910185839.18177.qmail@web114.yahoomail.com> Received: from [128.122.253.144] by web114.yahoomail.com; Sun, 10 Sep 2000 11:58:39 PDT Date: Sun, 10 Sep 2000 11:58:39 -0700 (PDT) From: "Tuyet A. Ngoc Tran" 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 This suggestion might be way off base but, if there is a venue where someone can send in a brief commentary to cnnfn.com - under these segments: Digitaljam and/or Bizbuzz. Last month anchor person Lauren Thierren from ccnfn.com did a short interview with a representative from Garbus after the trial. If some of these newspeople can be persuaded to better understand the issues, it might be worth an interaction/dialog for coverage. This is Just an idea for wider spread of information as a countermeasure against disinformation. Comments, thougths from Wendy and everyone? ... --- Sphere wrote: > Sham Gardner wrote: > > On Sun, Sep 10, 2000 at 04:48:38AM +0200, Tom Vogt > wrote: > > > Sphere wrote: > > > > Forget short and convincing. What we need is > polical volume. > > > > > > you can write a volume when you got people > hooked. > > > > I think he means volume as in loudness, not a > volume as in a book. > > > Volume as in number of people, but a little > screaming might be in order. __________________________________________________ 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 Sep 10 23:22:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11512 for dvd-discuss-outgoing; Sun, 10 Sep 2000 23:22:20 -0400 Received: from mail1.registeredsite.com (root@mail1.registeredsite.com [209.35.159.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA11497 for ; Sun, 10 Sep 2000 23:22:19 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by mail1.registeredsite.com (8.9.3/8.9.3) with ESMTP id WAA10657 for ; Sun, 10 Sep 2000 22:25:01 -0400 Received: from [24.14.203.65] [24.14.203.65] by mail.nearside.com with ESMTP (SMTPD32-6.00) id A02312C500E2; Sun, 10 Sep 2000 23:23:15 -0400 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Sun, 10 Sep 2000 23:23:14 -0400 Subject: [dvd-discuss] DeCSS on Usenet From: Jed Borod To: Message-ID: In-Reply-To: <20000910185839.18177.qmail@web114.yahoomail.com> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Not so fresh off Slashdot, but somebody follows the list. http://www.deja.com/[ST_rn=ps]/getdoc.xp?AN=668032712&fmt=text http://slashdot.org/article.pl?sid=00/09/10/2225214&mode=thread It looks like the inevitable is happening: someone is mass-posting copies of the DeCSS source code to Usenet. It showed up today in the comp.os.linux groups, with a little checking, it looks like it was posted to all of the comp* groups. Will MPAA be suing Deja now? ... -- Jed Borod From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 08:42:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA32177 for dvd-discuss-outgoing; Mon, 11 Sep 2000 08:42:51 -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 ESMTP id IAA32174 for ; Mon, 11 Sep 2000 08:42:41 -0400 Received: by mail.lemuria.org (Postfix, from userid 500) id 8CC4027AB5; Mon, 11 Sep 2000 14:40:39 +0200 (MEST) Date: Mon, 11 Sep 2000 14:40:39 +0200 From: Tom Vogt To: decss@lists.lemuria.org, dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] new DeCSS tool Message-ID: <20000911144039.A5697@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 have been supplied with a new DeCSS-derivative called "DecVOB" and put it on my webpage (http://www.lemuria.org/DeCSS/decss.html). this tool uses the method from "DeCSS Plus" (frank's divide&conquer attack) so it does not require a player key. it also outputs the unencrypted VOB to stdout so that any mpeg-player can show it. I have not yet had any time to experiment with this tool, but will do so soon. this looks like a very interesting thing. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 09:07:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA32397 for dvd-discuss-outgoing; Mon, 11 Sep 2000 09:07:46 -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 JAA32394 for ; Mon, 11 Sep 2000 09:07:45 -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 JAA09968 for ; Mon, 11 Sep 2000 09:08:44 -0400 (EDT) Message-ID: <39BCD95B.89FD93C0@mediaone.net> Date: Mon, 11 Sep 2000 09:08:43 -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] Another entry in the DeCSS song contest. Content-Type: text/plain; charset=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://plagiarist.org/decss/csssong.html The Lyric Sheet is particualrly interesting. ;) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 09:22:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA32680 for dvd-discuss-outgoing; Mon, 11 Sep 2000 09:22:08 -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 JAA32677 for ; Mon, 11 Sep 2000 09:22:06 -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 JAA03660 for ; Mon, 11 Sep 2000 09:20:29 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.3.2.7.2.20000909010608.00a99930@cyberpass.net> References: <20000908211553.13293.qmail@web511.mail.yahoo.com> <4.3.2.7.2.20000909010608.00a99930@cyberpass.net> Date: Mon, 11 Sep 2000 09:19:14 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 At 1:31 AM -0700 9/9/2000, James S. Tyre wrote: >... >Going one step further, the best amicus briefs are those which play >to the particular strengths of the amici, not those which seek to >argue most everything. And remember that Openlaw's will not be the >only amicus. While I truly commend Bryan for his effort here, my >professional judgment is that his proposal is too ambitious. > >I am not at all set on this, but my preliminary thought is to scale >it back to IA, B (tied to A with technical examples), D, E, F, II, >maybe III (the second III ;-) the first III is a weak argument, >IMO). Dump the rest not because it isn't worthy, but because it is >too much for one amicus brief, will be covered by others. > >Even scaled back that much, I can see page length being an issue. > >As a nit to pick, I don't like the concept of IA1c. Despite an >earlier lengthy post to the contrary (don't remember by whom), the >jurisprudence really doesn't (and shouldn't) draw relevant >distinctions between freedom of the press and freedom of speech. > It may be my freedom of the press post you are referring to. I am not a lawyer, but my impression from decades of following the Supreme Court is that they take special care on free speech issues when the press is involved. The key cases on prior restraint, defamation against public officials, pornography, public access to court proceedings,etc. all seem to have publications as defendants or plaintiffs. By contrast, the draft card burning case (O'Brian) was bought against individuals. I don't think the government would have dared to prosecute an anti-Vietnam war magazine for staging a draft card burning, even though your jurisprudence argument suggests they could have. Consider for a moment the most likely way we might lose this case: the appeals court holds DeCSS is in the same 1A-unprotected category as burglar tools, gambling software or advice on how to commit tax fraud and the Supreme Court declines certiorari (as the did with SOAP). I think this scenario is much less likely if we emphasize the press connection. We are very lucky that the remaining defendant in the NY DeCSS case is a journalist. I do agree that we should play to our strengths as amici and not try to just second guess Kaplan. I'd like to see us make the case for the public good in the open source movement and the open crypto movement. In particular, I would argue that, as technologists we believe we have a clearer view of the dangerous direction laws like DMCA will take society and we are using our first amendment rights to advocate forcefully in an attempt to avert the disaster we foresee. Arnold Reinhold Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 09:50:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA00948 for dvd-discuss-outgoing; Mon, 11 Sep 2000 09:50:21 -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 JAA00945 for ; Mon, 11 Sep 2000 09:50:18 -0400 Received: from travel-net.com (trj110.travel-net.com [207.176.160.110]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id JAA06205 for ; Mon, 11 Sep 2000 09:52:07 -0400 Message-ID: <39BCE290.D3D5660C@travel-net.com> Date: Mon, 11 Sep 2000 09:48:00 -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] mpaa23 details References: <39BB9240.6A9C0FD4@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 Just to follow up on this thread (and perhaps kill it), i have in my inbox currently 7 different mpaa addresses. I get messages from these people on separate lists (INTA and IPC). I keep forgetting it's a small world. Sorry I should have spoken up sooner. But seeing stuff on Tony Rutkowski's site woke me up. The only question that remains is of the authenticity of the actual C&D letters. mickeym wrote: > > On Fri, 8 Sep 2000 23:03:54 +0200, Tom Vogt wrote: > > > > >the second interesting thing from above is that there ARE e-mail > > >addresses @mpaa.org - so why don't they use them? aside from pegge, > > >their webpage also mentions a "hotline@mpaa.org" address, so these > > >addresses ARE in use. > > > > I suspect they want to email from a dynamic IP address so they > > can deny sending the emails if things don't go their way. > > > > You'd have to subpoena Pacific Bell to get the identity of mpaa23. > > (Now, that's an idea...) > > > > I found another address from that domain, along with comments: > http://www.wia.org/pub/doc-dns-nprm.html > > 23-Mar 9e Bonnie Richardson > brichard@mpaa.org Motion Picture Association of America (MPAA) > > In comments to NTIA: > > "MPAA believes that a 30 day pre-registration period is not unreasonable > and would be very useful. This pre-registration period would allow third > parties to object to the new name before it is registered and before > business under the new domain name commenced. " From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 09:52:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA01034 for dvd-discuss-outgoing; Mon, 11 Sep 2000 09:52:20 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA01030 for ; Mon, 11 Sep 2000 09:52:19 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id JAA14315 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 09:53:17 -0400 (EDT) Date: Mon, 11 Sep 2000 09:53:17 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DeCSS on Usenet Message-ID: <20000911095317.C13806@ils.unc.edu> References: <20000910185839.18177.qmail@web114.yahoomail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i In-Reply-To: ; from jed@nearside.com on Sun, Sep 10, 2000 at 11:23:14PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm certain that deja.com already removed the DeCSS code from its archives when it was posted around October/November 1999. So, rest assured that if they get another letter from the MPAA (or perhaps even if they don't), they'll remove it. Of course, this doesn't mean it's not available from the newsgroups themselves until the articles expire. It is, at thousands of sites (including, presumably, the news servers owned or maintained by the plaintiffs). I'm not sure this is a big deal for us. However, I wonder whether the trade secret status would be impacted if, say, the CA declaration were widely posted or another clear "publication" of the trade secret of the CSS. -- Greg On Sun, Sep 10, 2000 at 11:23:14PM -0400, Jed Borod wrote: > Not so fresh off Slashdot, but somebody follows the list. > > http://www.deja.com/[ST_rn=ps]/getdoc.xp?AN=668032712&fmt=text > http://slashdot.org/article.pl?sid=00/09/10/2225214&mode=thread > > > It looks like the inevitable is happening: someone is mass-posting copies of > the DeCSS source code to Usenet. It showed up today in the comp.os.linux > groups, with a little checking, it looks like it was posted to all of the > comp* groups. Will MPAA be suing Deja now? ... > > > -- > Jed Borod > From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 12:27:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03155 for dvd-discuss-outgoing; Mon, 11 Sep 2000 12:27:37 -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 MAA03152 for ; Mon, 11 Sep 2000 12:27:36 -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 LAA08082 for ; Mon, 11 Sep 2000 11:28:35 -0500 (CDT) Message-ID: <39BD086D.2BE22CF4@uic.edu> Date: Mon, 11 Sep 2000 11:29:33 -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] Valenti's latest threat Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Valenti has founded a new department > within the Motion Picture Association > called Digital Strategies "to involve > ourselves in digital rights management > procedures so we can clothe our > movies in a protective shield that > would disallow them to be copied by > anybody. Here's the line that raised my eyebrows: > Sniffers will instantly pluck out > anything out there that's unauthorized." I wonder if this is the real reason for the Time-Warner-AOL merger -- by purchasing AOL, Time-Warner obtains the ability to attach sniffers to AOL's networks to spy on AOL users (and anyone communicating with an AOL user) for their own purposes. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 13:06:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05319 for dvd-discuss-outgoing; Mon, 11 Sep 2000 13:06:59 -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 NAA05316 for ; Mon, 11 Sep 2000 13:06:56 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Mon, 11 Sep 2000 19:00:57 +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; Mon, 11 Sep 2000 18:46:52 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Mon, 11 Sep 2000 18:46:52 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Valenti's latest threat Message-ID: <20000911184652.A29975@lemuria.org> References: <39BD086D.2BE22CF4@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39BD086D.2BE22CF4@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: > I wonder if this is the real reason for the > Time-Warner-AOL merger -- by purchasing > AOL, Time-Warner obtains the ability to > attach sniffers to AOL's networks to spy on > AOL users (and anyone communicating > with an AOL user) for their own purposes. wasn't it actually AOL that bought time-warner? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 16:14:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08095 for dvd-discuss-outgoing; Mon, 11 Sep 2000 16:14:11 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08092 for ; Mon, 11 Sep 2000 16:14:05 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 12:59:29 -0700 Subject: Re: [dvd-discuss] Valenti's latest threat To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Mon, 11 Sep 2000 12:59:27 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/11/2000 12:59:29 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Big Brother..... John Schulien Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: [dvd-discuss] Valenti's latest threat 09/11/00 09:30 AM Please respond to dvd-discuss > Valenti has founded a new department > within the Motion Picture Association > called Digital Strategies "to involve > ourselves in digital rights management > procedures so we can clothe our > movies in a protective shield that > would disallow them to be copied by > anybody. Here's the line that raised my eyebrows: > Sniffers will instantly pluck out > anything out there that's unauthorized." I wonder if this is the real reason for the Time-Warner-AOL merger -- by purchasing AOL, Time-Warner obtains the ability to attach sniffers to AOL's networks to spy on AOL users (and anyone communicating with an AOL user) for their own purposes. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 16:33:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08326 for dvd-discuss-outgoing; Mon, 11 Sep 2000 16:33:56 -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 QAA08313 for ; Mon, 11 Sep 2000 16:33:17 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA09175; Mon, 11 Sep 2000 16:35:12 -0400 Date: Mon, 11 Sep 2000 16:35:07 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: decss@lists.lemuria.org Subject: Re: [dvd-discuss] new DeCSS tool Message-ID: <20000911163507.A8483@eldritchpress.org> References: <20000911144039.A5697@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000911144039.A5697@lemuria.org>; from tom@lemuria.org on Mon, Sep 11, 2000 at 02:40:39PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 02:40:39PM +0200, Tom Vogt wrote: > I have been supplied with a new DeCSS-derivative called "DecVOB" and > put it on my webpage (http://www.lemuria.org/DeCSS/decss.html). > > this tool uses the method from "DeCSS Plus" (frank's divide&conquer > attack) so it does not require a player key. it also outputs the > unencrypted VOB to stdout so that any mpeg-player can show it. > > I have not yet had any time to experiment with this tool, but will do > so soon. this looks like a very interesting thing. copied from the Slashdot discussion on DeCSS on Usenet without comment: DeCSS is a lame duck anyways (Score:2, Informative) by ferrocene (mmmm....organized crime) on Sunday September 10, @10:01PM EDT (User #203243 Info) I think there's a big issue that either no one is aware of, or that no one has posted. DeCSS is based on the Xing key, we all know that. What many people don't know is that the key has been pulled from all new DVD's, therefore if you're trying to watch T2U with yer "all-knowing" DeCSS it won't work. DeCSS no longer works with new movies! If you really want power, and avoid DeCSS completely, I suggest you use vobdec or some equivalent (CladDVD) that uses a brute-force method of cracking the CSS. http://doom9.excelland.com/software.htm Includes binarys and source. Yes, I do copy dvd's, but just to see if I can. It's rather fun. DVD rippers (such as myself) haven't used decss in a long time, which leads me to believe that most of you haven't used it in awhile, if at all. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 16:35:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08362 for dvd-discuss-outgoing; Mon, 11 Sep 2000 16:35:00 -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 QAA08334 for ; Mon, 11 Sep 2000 16:34:54 -0400 Message-ID: <20000911203511.23549.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Mon, 11 Sep 2000 13:35:11 PDT Date: Mon, 11 Sep 2000 13:35:11 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 2nd Circuit amicus brief outline 2 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's outline version 2. I incorporated all of the suggestions and filled in an outline of the reverse engineering argument, which I envision mainly as a "here's what Kaplan ignored" summary and a feel-good essay about the role of open source and reverse engineering. I nuked the recusal and encryption research pieces, but I did add one that I hope most people will agree is useful -- a section that claims the injunction was overbroad and abused discretion by ignoring the Constitution and statue. Please post your comments. I need more feedback! ______________________ I) Kaplan's O'Brien Analysis is Hopelessly Flawed A) O'Brien standard for intermediate scrutiny does not apply 1) Not "regulating the nonspeech element" in "course of conduct" a) Functional capability only after installed on a machine b) Conduct of distributing code is purely speech-conduct c) Voluntary public sharing is part of open source's message d) Compare Bery v. City of New York: Peddling Art not "conduct", street marketing was part of the message 3) Computer speech not in scope of statue a) 1201(c)(4) b) Software not 'black boxes' refered to by "technology" 4) Prior Restraints forbidden a) 1203(b)(1) vs Kaplan ellipses b) Constitutional requirement 5) Strict scrutiny is proper standard B) O'Brien requires intermediate scrutiny, not "rubber stamp" 1) Cite Horton v. Houston: may not just "rubber stamp" 2) Review of O'Brien Standard a) within the constitutional power of the Government b) furthers an important or substantial government interest c) content neutral, unrelated to the suppression of free expression d) incidental restriction no greater than essential to further interest 3) Cite Foti v. Menlo Park: content-based exceptions fail 4) Cite US v. Playboy: speaker-based restrictions are content-based 5) Review Overbreadth doctrine & "standing" 6) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral 7) Review vagueness doctrine a) Selective enforcement not allowed b) Prior Restraint by permit not allowed c) Cite Young v. Simi Valley to disallow 3rd party veto 8) Distinguish Time, Manner, Place cases from symbolic speech cases (Cite Reno v ACLU) C) DMCA not "within constitutional power" of Congress 1) Don't agree within the Copyright or Commerce Power 2) Defer to others better positioned for details D) Does not "further substantial governement interest" 1) "Full Disclosure" best security approach. DMCA futhers insecurity, not security. 2) Congress shirked duty to show protecting weak systems will inhibit piracy E) Not content neutral, depends on examining content 1) Code communicates a factual method a) Source code provided for benefit of human readers b) Object code, especially when combined with source code has communication value to skilled readers c) Science of computer security depends on such communications 2) Would place all of science under intermediate scrutiny 3) Must scrutinize content of code to tell if it decrypts eg: Compare DeCSS to DoD Speed Ripper -- which decrypts? 4) 1201(d,e) exceptions are speaker-based 5) 1201(f)(3) turns on content of speech to determine "purpose" for why one "provides such information" 6) 1201(g) exception for "encryption" research excludes other forms of research based solely on their content 7) 1201(g)(3)(A) favoring research when "information ... was disseminated" is content-based 8) 1201(g)(3)(B) turning on "whether the person is ... in the field of encryption technology" is speaker-based 9) 1201(g)(4) allows dissemination to "person ... working collaboratively" is content based, and contradicts 1201(g)(3)(A) 10) 1201(k) allowing distribution for "security testing" is content-based F) Not "incidental restriction" 1) Guts "fair use", betrays "fair use community" 2) No alternative outlet for communicating methods 3) Act of distributing code is "pure speech" 4) Lack of "intent to infringe" clause burdens legit activity II) Reverse Engineering Wrongly Denied A) Review of the law 1) 1201(f)(4) definition of interoperability 3) 1201(f)(1) is not yet in effect, unneeded 4) 1201(f)(2) provides two separate exceptions to (a)(2) 5) 1201(f)(3) provides exception to (a)(3) B) Kaplan abused discretion by ignoring overwhelming evidence that DeCSS was created to advance interoperability 1) Kaplan wrongly assumes that DVD is not "program" w/o evidence 2) Purpose of LiViD is clearly interoperability 3) Evidence & testimony all show firm LiViD, DeCSS connection a) Derek Fawcus, LiViD member rewrote key parts of DeCSS b) Johansen released code to LiViD c) DeCSS release to LiViD typifies method for open source contribution d) IRC release of decss shows nothing e) Kaplan egregiously ignores testimony of Pavlovich f) Kaplan ignores Pavlovich offer to demonstrate LiViD player 4) Kaplan shows bias, misunderstanding with remarks regarding "adherents of a movement" a) Assertions totally unsupported by record b) Belies unwillingness to conduct evidence based analysis 5) Setting the record straight regarding open source movement a) Open source is development by the public b) Open source exemplifies public benefit through copyright c) Open source advocates *voluntary* release of ideas d) Historic role of reverse engineering proprietary protocols 5) DeCSS qualifies for first (f)(2) exception 6) DeCSS qualifies for second (f)(2) exception 7) DeCSS qualifies for (f)(3) exception III) Authority of Copyight Holder Existed via First Sale IV) Kaplan Abused Discretion with Overbroad Injunction A) Prior Restraint Applies to more than DeCSS.exe executable 1) Applies to inherently non-executable Source Code 2) Convolutes DeCSS with other programs a) Assumes "DeCSS not RE" implies "All programs not RE" b) Assumes all decryption allows copy stored on hard drive 3) Application to hyperlinks gross abuse of discretion B) Fallacy of Kaplan's "resolved by Congress" viewpoint 1) Abdicates Constitutional role for judicial review a) "Congress shall make no law ..." b) Checks and balances exist to correct special interests from subverting legislature contravening public interest 2) Kaplan substituted his judgement for that of Congress, erases critical statutory safeguards from the Copyright Act a) No analysis of 1201(c)(4) b) Dismisses 17 USC 109(c) as "sophistry" c) Ellipses over "no prior restraints" 1203(b)(1) __________________________________________________ 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 Sep 11 16:41:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08492 for dvd-discuss-outgoing; Mon, 11 Sep 2000 16:41:19 -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 QAA08486 for ; Mon, 11 Sep 2000 16:40:40 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA09187 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 16:42:51 -0400 Date: Mon, 11 Sep 2000 16:42:46 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000911164246.B8483@eldritchpress.org> References: <20000908211553.13293.qmail@web511.mail.yahoo.com> <4.3.2.7.2.20000909010608.00a99930@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Mon, Sep 11, 2000 at 09:19:14AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 09:19:14AM -0400, Arnold G. Reinhold wrote: > At 1:31 AM -0700 9/9/2000, James S. Tyre wrote: > >... > >Going one step further, the best amicus briefs are those which play > >to the particular strengths of the amici, not those which seek to > >argue most everything. And remember that Openlaw's will not be the > >only amicus. While I truly commend Bryan for his effort here, my > >professional judgment is that his proposal is too ambitious. >.... > I do agree that we should play to our strengths as amici and not try > to just second guess Kaplan. I'd like to see us make the case for > the public good in the open source movement and the open crypto > movement. In particular, I would argue that, as technologists we > believe we have a clearer view of the dangerous direction laws like > DMCA will take society and we are using our first amendment rights to > advocate forcefully in an attempt to avert the disaster we foresee. I'd like to let the defense argue for acquittal of Goldstein along with other arguments--whatever it takes. But I'd have any amicus brief argue that the DMCA is unconstitutional. We have a substantial interest in preventing any precedent that limits our speech as programmers, that prevents security research, that stifles reverse engineering, that grants perpetual patents, that sets up a monopoly called DVD-CCA that issues licenses for unrelated technologies not under copyright, that prevents the Free Software movement from collaborating on constructing our own code to display our own discs on our own computers, that bans hyperlinks because of their content--well, isn't that enough? From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 17:01:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08697 for dvd-discuss-outgoing; Mon, 11 Sep 2000 17:01:15 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08693 for ; Mon, 11 Sep 2000 17:01:13 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA28290 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 16:02:11 -0500 Date: Mon, 11 Sep 2000 16:02:11 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 Message-ID: <20000911160211.A28254@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000911203511.23549.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000911203511.23549.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Sep 11, 2000 at 01:35:11PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 01:35:11PM -0700, Bryan Taylor wrote: > Here's outline version 2. (snip) I think that I.F.1 (guts fair use) can fall under a few different areas here: If you consider gutting fair use to be a fault of the law, then a constitutionality argument is made. If you consider it a fault of Kaplan's interpretation, that's a different argument. It's also possible to view no-fair-use as a fault of the DVDCCA licensing rules-- in that case I think the argument is pretty much the "misuse of paracopyright" discussed recently (although that name might be a liability). Also, and I'm not clear if this is what you meant, but I think part IV should include a mention that the injunction defines DeCSS as _any_ program _cabable_ of decrypting. This badly fails the definition laid out in 1201, which outlaws only those devices designed primarily (or marketed primarily) for circumvention. Only DeCSS.exe was on trial here; there's no reason to enjoin other code, including LiViD code (which is, after all, capable of decrypting, but is primarily designed and marketed as a _player_). > ______________________ > > I) Kaplan's O'Brien Analysis is Hopelessly Flawed > A) O'Brien standard for intermediate scrutiny does not apply > 1) Not "regulating the nonspeech element" in "course of conduct" > a) Functional capability only after installed on a machine > b) Conduct of distributing code is purely speech-conduct > c) Voluntary public sharing is part of open source's message > d) Compare Bery v. City of New York: Peddling Art > not "conduct", street marketing was part of the message > 3) Computer speech not in scope of statue > a) 1201(c)(4) > b) Software not 'black boxes' refered to by "technology" > 4) Prior Restraints forbidden > a) 1203(b)(1) vs Kaplan ellipses > b) Constitutional requirement > 5) Strict scrutiny is proper standard > B) O'Brien requires intermediate scrutiny, not "rubber stamp" > 1) Cite Horton v. Houston: may not just "rubber stamp" > 2) Review of O'Brien Standard > a) within the constitutional power of the Government > b) furthers an important or substantial government interest > c) content neutral, unrelated to the suppression of > free expression > d) incidental restriction no greater than essential > to further interest > 3) Cite Foti v. Menlo Park: content-based exceptions fail > 4) Cite US v. Playboy: speaker-based restrictions are > content-based > 5) Review Overbreadth doctrine & "standing" > 6) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral > 7) Review vagueness doctrine > a) Selective enforcement not allowed > b) Prior Restraint by permit not allowed > c) Cite Young v. Simi Valley to disallow 3rd party veto > 8) Distinguish Time, Manner, Place cases from symbolic > speech cases (Cite Reno v ACLU) > C) DMCA not "within constitutional power" of Congress > 1) Don't agree within the Copyright or Commerce Power > 2) Defer to others better positioned for details > D) Does not "further substantial governement interest" > 1) "Full Disclosure" best security approach. DMCA futhers > insecurity, not security. > 2) Congress shirked duty to show protecting weak systems will > inhibit piracy > E) Not content neutral, depends on examining content > 1) Code communicates a factual method > a) Source code provided for benefit of human readers > b) Object code, especially when combined with source code > has communication value to skilled readers > c) Science of computer security depends on such communications > 2) Would place all of science under intermediate scrutiny > 3) Must scrutinize content of code to tell if it decrypts > eg: Compare DeCSS to DoD Speed Ripper -- which decrypts? > 4) 1201(d,e) exceptions are speaker-based > 5) 1201(f)(3) turns on content of speech to determine "purpose" > for why one "provides such information" > 6) 1201(g) exception for "encryption" research excludes > other forms of research based solely on their content > 7) 1201(g)(3)(A) favoring research when "information ... was > disseminated" is content-based > 8) 1201(g)(3)(B) turning on "whether the person is ... in the > field of encryption technology" is speaker-based > 9) 1201(g)(4) allows dissemination to "person ... working > collaboratively" is content based, and contradicts > 1201(g)(3)(A) > 10) 1201(k) allowing distribution for "security testing" is > content-based > F) Not "incidental restriction" > 1) Guts "fair use", betrays "fair use community" > 2) No alternative outlet for communicating methods > 3) Act of distributing code is "pure speech" > 4) Lack of "intent to infringe" clause burdens legit activity > > II) Reverse Engineering Wrongly Denied > A) Review of the law > 1) 1201(f)(4) definition of interoperability > 3) 1201(f)(1) is not yet in effect, unneeded > 4) 1201(f)(2) provides two separate exceptions to (a)(2) > 5) 1201(f)(3) provides exception to (a)(3) > B) Kaplan abused discretion by ignoring overwhelming evidence that > DeCSS was created to advance interoperability > 1) Kaplan wrongly assumes that DVD is not "program" w/o evidence > 2) Purpose of LiViD is clearly interoperability > 3) Evidence & testimony all show firm LiViD, DeCSS connection > a) Derek Fawcus, LiViD member rewrote key parts of DeCSS > b) Johansen released code to LiViD > c) DeCSS release to LiViD typifies method for > open source contribution > d) IRC release of decss shows nothing > e) Kaplan egregiously ignores testimony of Pavlovich > f) Kaplan ignores Pavlovich offer to demonstrate LiViD player > 4) Kaplan shows bias, misunderstanding with remarks regarding > "adherents of a movement" > a) Assertions totally unsupported by record > b) Belies unwillingness to conduct evidence based analysis > 5) Setting the record straight regarding open source movement > a) Open source is development by the public > b) Open source exemplifies public benefit through copyright > c) Open source advocates *voluntary* release of ideas > d) Historic role of reverse engineering proprietary protocols > 5) DeCSS qualifies for first (f)(2) exception > 6) DeCSS qualifies for second (f)(2) exception > 7) DeCSS qualifies for (f)(3) exception > > III) Authority of Copyight Holder Existed via First Sale > > IV) Kaplan Abused Discretion with Overbroad Injunction > A) Prior Restraint Applies to more than DeCSS.exe executable > 1) Applies to inherently non-executable Source Code > 2) Convolutes DeCSS with other programs > a) Assumes "DeCSS not RE" implies "All programs not RE" > b) Assumes all decryption allows copy stored on hard drive > 3) Application to hyperlinks gross abuse of discretion > B) Fallacy of Kaplan's "resolved by Congress" viewpoint > 1) Abdicates Constitutional role for judicial review > a) "Congress shall make no law ..." > b) Checks and balances exist to correct special interests > from subverting legislature contravening public interest > 2) Kaplan substituted his judgement for that of Congress, erases > critical statutory safeguards from the Copyright Act > a) No analysis of 1201(c)(4) > b) Dismisses 17 USC 109(c) as "sophistry" > c) Ellipses over "no prior restraints" 1203(b)(1) > > > __________________________________________________ > 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 Sep 11 17:36:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09202 for dvd-discuss-outgoing; Mon, 11 Sep 2000 17:36:20 -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 RAA09199 for ; Mon, 11 Sep 2000 17:36:19 -0400 Message-ID: <20000911213648.29872.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Mon, 11 Sep 2000 14:36:48 PDT Date: Mon, 11 Sep 2000 14:36:48 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 --- Eric Eldred wrote: > [...] But I'd have any amicus brief argue that the DMCA is > unconstitutional. There are two ways to do this that I see: one is to argue the First Amendment, which we are definitely going to do, and the second is to argue that it wasn't made via validly following an enumerated Congressional Power (eg: copyright & commerce). In the 2nd outline I took out most of the details regarding the not within Congressional Power argument. I did this on the recommendation of James Tyre, who didn't include it in his list of "keep this" stuff. I'd say this type of argument is squarely within his area of legal expertise, so I'm defering to him. Incidentally, the O'Brien standard puts a burden of demonstration of the Constitutional Power derivation on the judge in order to pass 1A muster. I certainly expect us to point out that Kaplan didn't bother trying to do this and shirked his duty to do this by "rubber stamping" his own injuction. Hopefully James will clarify his reasoning. I realize that we're not exactly the most qualified to make the argument, but I certainly want to make sure that *somebody* makes the point. If I knew that a group of Constitutional scholars was likely to make the same point, I would feel differently. __________________________________________________ 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 Sep 11 17:41:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09331 for dvd-discuss-outgoing; Mon, 11 Sep 2000 17:41:42 -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 RAA09328 for ; Mon, 11 Sep 2000 17:41:41 -0400 Message-ID: <20000911214211.9163.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Mon, 11 Sep 2000 14:42:11 PDT Date: Mon, 11 Sep 2000 14:42:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] new DeCSS tool To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > http://doom9.excelland.com/software.htm This site has an enormous collection of tools, and consistently provides source code. Can anybody figure out what jurisdiction this guy or his mirrors are in? __________________________________________________ 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 Sep 11 17:47:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09442 for dvd-discuss-outgoing; Mon, 11 Sep 2000 17:47:11 -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 RAA09439 for ; Mon, 11 Sep 2000 17:47:09 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA28371 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 16:48:07 -0500 Date: Mon, 11 Sep 2000 16:48:07 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000911164807.A28359@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000911213648.29872.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000911213648.29872.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Sep 11, 2000 at 02:36:48PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 02:36:48PM -0700, Bryan Taylor wrote: > > --- Eric Eldred wrote: > > [...] But I'd have any amicus brief argue that the DMCA is > > unconstitutional. > > There are two ways to do this that I see: one is to argue the First > Amendment, which we are definitely going to do, and the second is to > argue that it wasn't made via validly following an enumerated > Congressional Power (eg: copyright & commerce). Third way: argue that it's unconstitutional because it doesn't follow the "...for limited times". Fourth way: unconstitutional because it doesn't strike any sort of balance between the good of society (fair use, etc.) and the enrichment of the copyright holder. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 19:11:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12163 for dvd-discuss-outgoing; Mon, 11 Sep 2000 19:11:40 -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 TAA12160 for ; Mon, 11 Sep 2000 19:11:39 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id QAA19956 for ; Mon, 11 Sep 2000 16:12:37 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma019778; Mon, 11 Sep 00 16:12:04 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id RAA10305; Mon, 11 Sep 2000 17:12:03 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Re: 2nd Circuit amicus brief outline 2 Date: Mon, 11 Sep 2000 17:17:01 -0600 Message-ID: <000101c01c46$63d58540$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 Thus spake Bryan Taylor on Mon, 11 Sep 2000 13:35:11 -0700 (PDT) > Here's outline version 2. I incorporated all of the suggestions > and filled in an outline of the reverse engineering argument, > which I envision mainly as a "here's what Kaplan ignored" > summary and a feel-good essay about the role of open source and > reverse engineering. How about adding some wrongly "excluded" items 1. Authority model * The judge claimed authority to be a matter of law. The P's asserted they had authority and were accepted at face value. This should have been a matter of fact as it was contested (or attempted to be). First sale and fair use also fall under here. The judge exclude how authority is conveyed, and then complained that a fair use case wasn't made. 2. Challenges to "effectiveness" * flowing from the denial of discussion of the authority model is a denial of obvious follow-ups. How is it, given that CSS restricts access to "authorized persons." Since it doesn't it can't qualify as effective -- even given arguendo that it meets all other criteria. Without exploring the authority model you can't challenge effectiveness as effectiveness deal with controlling access based on authority. 3. Anti-trust and copyright abuse * the judge excluded this (as he would have HAD to recuse himself had he not) but it flows also from the authority model. If the P's are claiming a right to control the players then we have copyright abuse, the copyrights are thus invalid and DeCSS can be considered circumvention since all the content it accesses don't have valid (non-abusive) content. * Also is the issue of whether encyrpted content is subject to copyright at all. Can an inaccessable work be considered published? Isn't the whole "promote useful arts and sciences" predicated on the compromise of "if you publish your works your receive certain, limited time rights." If the work is inaccessable and never enters the public domain can it truly be considered published? The definitions of publication and encryption are fundamentally opposed. To publish is to make public; to encrypt is to prevent the public from viewing (only those with the key can view). See http://eon.law.harvard.edu/archive/dvd-discuss/msg07145.html 4. Jon Johansenn history * did the court at some point refuse to accept information relating to the conclusion (exhoneration) of Jon? 5. Fair use needs some other venue to address the impact of the DMCA * why can't the law be challenged directly at the first hearing? (BTW I see the Fair use thing I just think it needs to be more prominent than 1F1) 6. Other errors in the courts reasoning: * The whole confusion of "authority" and "consent" http://eon.law.harvard.edu/archive/dvd-discuss/msg07506.html * The court's impeach of Johansenn given that not even the P's challenged his veracity I think 1-5 would be useful to get a fuller hearing of the facts -- not the narrow one Kaplan needed to defend his ruling and his former clients. 3 is incredibly important, since if remanded for fact-finding on anti-trust Kaplan would have recuse himself, as even his paper thin (we didn't work on DVD [specifically]) denials hold up then. For point "4) 1201(d,e) exceptions are speaker-based" see http://eon.law.harvard.edu/archive/dvd-discuss/msg07059.html for potentially useful content. Good stuff. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 19:27:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12444 for dvd-discuss-outgoing; Mon, 11 Sep 2000 19:27:43 -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 TAA12441 for ; Mon, 11 Sep 2000 19:27:39 -0400 Received: from travel-net.com (trj109.travel-net.com [207.176.160.109]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id TAA23207 for ; Mon, 11 Sep 2000 19:29:30 -0400 Message-ID: <39BD69B1.A871B87C@travel-net.com> Date: Mon, 11 Sep 2000 19:24:33 -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] new DeCSS tool References: <20000911214211.9163.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: > --- Eric Eldred wrote: > > http://doom9.excelland.com/software.htm > > This site has an enormous collection of tools, and consistently > provides source code. > > Can anybody figure out what jurisdiction this guy or his mirrors are > in? > >From whois at Network Solutions: ============================= Hidalgo (EXCELLAND-COM-DOM) 7/4, Gorbunova ul. Moscow, RU 121596 RU Domain Name: EXCELLAND.COM Administrative Contact: Alexey Sirotkin (AS465-BR) alex@newpower.org Idalgo co. Gorbunova str, 7/4 Moscow, 121596 RU Phone- +7-901-759-6130 Fax- +7-095-447-3012 Technical Contact: Alexey Sirotkin (AS465-BR) alex@newpower.org Idalgo co. Gorbunova str, 7/4 Moscow, 121596 RU Phone- +7-901-759-6130 Fax- +7-095-447-3012 Record updated on 2000-09-06. Record created on 1999-12-03. Record expires on 2001-12-03. Database last updated on 2000-09-09 03:52:56 EST. Domain servers in listed order: NS.EXCELLAND.COM 216.167.74.64 NS2.EXCELLAND.COM 195.146.81.130 The previous information has been obtained either directly from the registrant or a registrar of the domain name other than Network Solutions. Network Solutions, therefore, does not guarantee its accuracy or completeness. Look up another domain name using WHOIS: ============================================ administratively looks like Russia, and one of the nameservers is outside there but still not in either SDNY or CA jurisdiction: Tracing route to mbs11616.mbs.fi [195.148.81.130] over a maximum of 30 hops: 1 180 ms 105 ms 161 ms annex3.travel-net.com [204.92.71.12] 2 132 ms 116 ms 133 ms gatekeeper.travel-net.com [204.92.71.1] 3 272 ms 387 ms * uunet.s11.bb1.ott1.uunet.ca [205.150.221.5] 4 330 ms 288 ms 377 ms a6/0.150.xr1.tor2.alter.net [152.63.129.89] 5 519 ms 529 ms 353 ms 295.ATM2-0.TR1.TOR2.ALTER.NET [152.63.128.42] 6 327 ms 259 ms 303 ms 137.at-5-1-0.TR1.NYC9.ALTER.NET [152.63.7.77] 7 684 ms 431 ms 370 ms 187.ATM7-0.XR1.NYC1.ALTER.NET [152.63.21.65] 8 370 ms 410 ms 332 ms 195.ATM11-0-0.GW2.NYC2.ALTER.NET [146.188.178.15 3] 9 325 ms 324 ms 293 ms teleglobe-gw.customer.alter.net [157.130.5.218] 10 434 ms 352 ms 631 ms if-9-0.core1.NewYork.Teleglobe.net [207.45.221.6 5] 11 414 ms 488 ms 352 ms NORDUnet-gw.Teleglobe.net [207.45.202.22] 12 483 ms 428 ms 369 ms sw-gw.nordu.net [193.10.252.193] 13 368 ms 414 ms 309 ms s-gw.nordu.net [193.10.252.210] 14 323 ms 273 ms 313 ms fi-gw.nordu.net [193.10.252.206] 15 373 ms 343 ms 338 ms funet3-a3001-funet1.funet.fi [193.166.187.174] 16 623 ms 371 ms 419 ms funet5-fe00-backbone.funet.fi [193.166.4.5] 17 evitech-a-funet5.funet.fi [193.166.5.66] reports: Destination net unreacha ble. Trace complete. ===================== as for the mirrors, (and the *interesting* legal issues) I'll leave that to someone else.... Im on a (very slow tonight) dialup to a waaaaaay-downstream ISP. it took a few tries just to get these results without timeouts. anyone awake now and on a faster pipe? From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 19:41:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA15372 for dvd-discuss-outgoing; Mon, 11 Sep 2000 19:41:56 -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 TAA15369 for ; Mon, 11 Sep 2000 19:41:55 -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 TAA02362 for ; Mon, 11 Sep 2000 19:42:53 -0400 (EDT) Message-ID: <39BD6DFA.410A0FEC@mediaone.net> Date: Mon, 11 Sep 2000 19:42:50 -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] new DeCSS tool References: <20000911144039.A5697@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 have been supplied with a new DeCSS-derivative called "DecVOB" and > put it on my webpage (http://www.lemuria.org/DeCSS/decss.html). > > this tool uses the method from "DeCSS Plus" (frank's divide&conquer > attack) so it does not require a player key. it also outputs the > unencrypted VOB to stdout so that any mpeg-player can show it. > > I have not yet had any time to experiment with this tool, but will do > so soon. this looks like a very interesting thing. Maybe you should make a preemptive strike. Get it translated into English and have someone sing it. Or you could add a bunch of coments to the source code expressing your opinion of the MPAA, DMCA, the best congressmen money can buy, and quisling judges who rule in favor of their clients. (Don't swear, but get real close.) Then just read the code aloud and include the mp3 in the gz. A good speaking voice and a vivid command of English may become a necessary qualification for open source programmers. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 20:06:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA15945 for dvd-discuss-outgoing; Mon, 11 Sep 2000 20:06:58 -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 UAA15942 for ; Mon, 11 Sep 2000 20:06:57 -0400 Received: from swbell.net ([64.216.210.80]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0Q00FOTYRR6R@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 19:02:16 -0500 (CDT) Date: Mon, 11 Sep 2000 18:53:52 -0500 From: Jolley Subject: Re: [dvd-discuss] Re: 2nd Circuit amicus brief outline 2 To: dvd-discuss@eon.law.harvard.edu Message-id: <39BD7090.6C51F14D@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: <000101c01c46$63d58540$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf wrote: > > Thus spake Bryan Taylor on Mon, 11 Sep 2000 13:35:11 -0700 (PDT) > > > Here's outline version 2. I incorporated all of the suggestions > > and filled in an outline of the reverse engineering argument, > > which I envision mainly as a "here's what Kaplan ignored" > > summary and a feel-good essay about the role of open source and > > reverse engineering. > > How about adding some wrongly "excluded" items > > 2. Challenges to "effectiveness" > * flowing from the denial of discussion of the authority model is a denial > of obvious follow-ups. How is it, given that CSS restricts access to > "authorized persons." Since it doesn't it can't qualify as effective -- > even given arguendo that it meets all other criteria. Without exploring the > authority model you can't challenge effectiveness as effectiveness deal with > controlling access based on authority. Perhaps the following theme could be followed: "If CSS NEVER denies access to their junk, you must not injuct." I know, I know. But it worked on the OJ jury. > > 3. Anti-trust and copyright abuse > * the judge excluded this (as he would have HAD to recuse himself had he > not) but it flows also from the authority model. If the P's are claiming a > right to control the players then we have copyright abuse, the copyrights > are thus invalid and DeCSS can be considered circumvention since all the > content it accesses don't have valid (non-abusive) content. And reading 1201(c)(3) looks like Congress did not intend to grant monopolies. 1201(c)(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). How is the scanning of the committee report coming along? > 3 is > incredibly important, since if remanded for fact-finding on anti-trust > Kaplan would have recuse himself, as even his paper thin (we didn't work on > DVD [specifically]) denials hold up then. > From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 20:16:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA16113 for dvd-discuss-outgoing; Mon, 11 Sep 2000 20:16:04 -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 UAA16110 for ; Mon, 11 Sep 2000 20:16:03 -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 UAA23875 for ; Mon, 11 Sep 2000 20:16:55 -0400 (EDT) Message-ID: <39BD75E9.571A5AB8@mediaone.net> Date: Mon, 11 Sep 2000 20:16:41 -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] new DeCSS tool References: <20000911214211.9163.qmail@web515.mail.yahoo.com> <39BD69B1.A871B87C@travel-net.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg wrote: > > Bryan Taylor wrote: > > > --- Eric Eldred wrote: > > > http://doom9.excelland.com/software.htm > > > > This site has an enormous collection of tools, and consistently > > provides source code. > > > > Can anybody figure out what jurisdiction this guy or his mirrors are > > in? > > > > >From whois at Network Solutions: > ============================= > Hidalgo (EXCELLAND-COM-DOM) > 7/4, Gorbunova ul. > Moscow, RU 121596 > RU > > Domain Name: EXCELLAND.COM > > Administrative Contact: > Alexey Sirotkin (AS465-BR) alex@newpower.org > Idalgo co. > Gorbunova str, 7/4 > Moscow, 121596 > RU > Phone- +7-901-759-6130 > Fax- +7-095-447-3012 > Technical Contact: > Alexey Sirotkin (AS465-BR) alex@newpower.org > Idalgo co. > Gorbunova str, 7/4 > Moscow, 121596 > RU > Phone- +7-901-759-6130 > Fax- +7-095-447-3012 > > Record updated on 2000-09-06. > Record created on 1999-12-03. > Record expires on 2001-12-03. > Database last updated on 2000-09-09 03:52:56 EST. > > Domain servers in listed order: > > NS.EXCELLAND.COM 216.167.74.64 > NS2.EXCELLAND.COM 195.146.81.130 > The previous information has been obtained either directly > from the > registrant or a registrar of the domain name other than > Network Solutions. > Network Solutions, therefore, does not guarantee its accuracy > or > completeness. > > Look up another domain name using WHOIS: > > ============================================ > administratively looks like Russia, and one of the nameservers is > outside there but still not in either SDNY or CA jurisdiction: > Tracing route to mbs11616.mbs.fi [195.148.81.130] > over a maximum of 30 hops: > > 1 180 ms 105 ms 161 ms annex3.travel-net.com [204.92.71.12] > 2 132 ms 116 ms 133 ms gatekeeper.travel-net.com [204.92.71.1] > 3 272 ms 387 ms * uunet.s11.bb1.ott1.uunet.ca > [205.150.221.5] > 4 330 ms 288 ms 377 ms a6/0.150.xr1.tor2.alter.net > [152.63.129.89] > 5 519 ms 529 ms 353 ms 295.ATM2-0.TR1.TOR2.ALTER.NET > [152.63.128.42] > 6 327 ms 259 ms 303 ms 137.at-5-1-0.TR1.NYC9.ALTER.NET > [152.63.7.77] > 7 684 ms 431 ms 370 ms 187.ATM7-0.XR1.NYC1.ALTER.NET > [152.63.21.65] > 8 370 ms 410 ms 332 ms 195.ATM11-0-0.GW2.NYC2.ALTER.NET > [146.188.178.15 > 3] > 9 325 ms 324 ms 293 ms teleglobe-gw.customer.alter.net > [157.130.5.218] > > 10 434 ms 352 ms 631 ms if-9-0.core1.NewYork.Teleglobe.net > [207.45.221.6 > 5] > 11 414 ms 488 ms 352 ms NORDUnet-gw.Teleglobe.net > [207.45.202.22] > 12 483 ms 428 ms 369 ms sw-gw.nordu.net [193.10.252.193] > 13 368 ms 414 ms 309 ms s-gw.nordu.net [193.10.252.210] > 14 323 ms 273 ms 313 ms fi-gw.nordu.net [193.10.252.206] > 15 373 ms 343 ms 338 ms funet3-a3001-funet1.funet.fi > [193.166.187.174] > 16 623 ms 371 ms 419 ms funet5-fe00-backbone.funet.fi > [193.166.4.5] > 17 evitech-a-funet5.funet.fi [193.166.5.66] reports: Destination net > unreacha > ble. > > Trace complete. > > ===================== > as for the mirrors, (and the *interesting* legal issues) I'll leave that > to someone else.... > Im on a (very slow tonight) dialup to a waaaaaay-downstream ISP. it took > a few tries just to get these results without timeouts. anyone awake now > and on a faster pipe? Tracing route to www.excelland.com [216.167.64.146] over a maximum of 30 hops: 1 93 ms 16 ms 62 ms lwrtr01-lwswt02-vlan1.ne.mediaone.net [24.128.18.1] 2 16 ms 15 ms 32 ms MLDNMA1-UBR03-MLDNMA1-RTR01.ne.mediaone.net [24.128.8.185] 3 31 ms 16 ms 16 ms MLDNMA1-RTR01-CMBRMA1-RTR02.ne.mediaone.net [24.128.8.173] 4 78 ms 141 ms 125 ms 24.218.189.171 5 15 ms 16 ms 31 ms 12.125.39.9 6 16 ms 16 ms 31 ms gbr2-p70.cb1ma.ip.att.net [12.123.40.102] 7 15 ms 16 ms 15 ms gbr3-p80.cb1ma.ip.att.net [12.122.5.61] 8 32 ms 15 ms 31 ms gbr4-p10.n54ny.ip.att.net [12.122.2.13] 9 31 ms 78 ms 94 ms ggr1-p370.n54ny.ip.att.net [12.123.1.125] 10 32 ms 31 ms 31 ms POS3-0.BR3.NYC9.ALTER.NET [137.39.52.73] 11 32 ms 15 ms 16 ms 538.at-6-0-0.XR2.NYC9.ALTER.NET [152.63.23.150] 12 94 ms 47 ms 31 ms 180.at-1-0-0.TR2.NYC9.ALTER.NET [152.63.20.138] 13 47 ms 31 ms 32 ms 125.at-5-0-0.TR2.DCA6.ALTER.NET [152.63.2.201] 14 110 ms 31 ms 62 ms 286.at-4-1-0.XR2.DCA1.ALTER.NET [152.63.33.229] 15 172 ms 94 ms 125 ms 194.ATM11-0-0.GW3.DCA3.ALTER.NET [152.63.32.77] 16 47 ms 31 ms 94 ms dn4-gw.customer.ALTER.NET [157.130.15.230] 17 47 ms 78 ms 47 ms fe0910.ed2.wdc.dn.net [209.207.190.26] 18 109 ms 31 ms 63 ms 216.167.64.146 Trace complete. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 21:09:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA17480 for dvd-discuss-outgoing; Mon, 11 Sep 2000 21:09:16 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA17477 for ; Mon, 11 Sep 2000 21:09:14 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id UAA28688 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 20:10:14 -0500 Date: Mon, 11 Sep 2000 20:10:13 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000911201013.A28679@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000911213648.29872.qmail@web511.mail.yahoo.com> <20000911164807.A28359@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000911164807.A28359@thud.reric.net>; from eds@reric.net on Mon, Sep 11, 2000 at 04:48:07PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 04:48:07PM -0500, Eric Seppanen wrote: > On Mon, Sep 11, 2000 at 02:36:48PM -0700, Bryan Taylor wrote: > > > > --- Eric Eldred wrote: > > > [...] But I'd have any amicus brief argue that the DMCA is > > > unconstitutional. > > > > There are two ways to do this that I see: one is to argue the First > > Amendment, which we are definitely going to do, and the second is to > > argue that it wasn't made via validly following an enumerated > > Congressional Power (eg: copyright & commerce). > > Third way: argue that it's unconstitutional because it doesn't follow the > "...for limited times". > > Fourth way: unconstitutional because it doesn't strike any sort of balance > between the good of society (fair use, etc.) and the enrichment of the > copyright holder. Fifth way: (though I'm not sure if this means unconstitutional or just stupid) Argue that section 1201 is unclear, open to arbitrary interpretation and enforcement, self-contradictory, and practically impossible to apply in any logical fashion. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 21:51:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA18299 for dvd-discuss-outgoing; Mon, 11 Sep 2000 21:51:55 -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 VAA18292 for ; Mon, 11 Sep 2000 21:51:31 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA09712 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 21:53:45 -0400 Date: Mon, 11 Sep 2000 21:53:40 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000911215340.C9311@eldritchpress.org> References: <20000911213648.29872.qmail@web511.mail.yahoo.com> <20000911164807.A28359@thud.reric.net> <20000911201013.A28679@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000911201013.A28679@thud.reric.net>; from eds@reric.net on Mon, Sep 11, 2000 at 08:10:13PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 08:10:13PM -0500, Eric Seppanen wrote: > On Mon, Sep 11, 2000 at 04:48:07PM -0500, Eric Seppanen wrote: > > On Mon, Sep 11, 2000 at 02:36:48PM -0700, Bryan Taylor wrote: > > > > > > --- Eric Eldred wrote: > > > > [...] But I'd have any amicus brief argue that the DMCA is > > > > unconstitutional. > > > > > > There are two ways to do this that I see: one is to argue the First > > > Amendment, which we are definitely going to do, and the second is to > > > argue that it wasn't made via validly following an enumerated > > > Congressional Power (eg: copyright & commerce). > > > > Third way: argue that it's unconstitutional because it doesn't follow the > > "...for limited times". > > > > Fourth way: unconstitutional because it doesn't strike any sort of balance > > between the good of society (fair use, etc.) and the enrichment of the > > copyright holder. > > Fifth way: (though I'm not sure if this means unconstitutional or just > stupid) Argue that section 1201 is unclear, open to arbitrary > interpretation and enforcement, self-contradictory, and practically > impossible to apply in any logical fashion. Good idea. In Eldred v Reno plaintiffs argue this (I can't find the supporting citations at the moment, but the arguments refer to it repeatedly). If Congress in its due deliberation included one section of the act--and would not have passed the act without it, then if that section is severed from the whole by means of unconstitutionality, then the entire act must fall. What Congress has done here is pass an act that is obviously self-contradictory. There is plenty of legislative history to show that many legislators always intended fair use to apply, and that first sale customers would not be deprived of that fair use no matter what else in the act. At the same time, many legislators must have felt that the main purpose of the act was to ban circumvention of some sort of access control, and didn't think for a moment what implications that would have for fair use. So Kaplan delivered some Solomoronic decision that attempted to fit the two jagged edges back together: if Congress passed a self-contradictory act that allowed fair use while at the same time preventing anyone from communicating a technique to carry out that fair use--then he was ready to so rule and he did. But the exactly parallel case of Vault v Quaid ruled that the user had by means of the constitutional provision of fair use the right to buy a program that decrypted plaintiff's program--and that no requirement for a license can overrule that. Since the district court ruling here in Universal v Corley conflicts with Vault v Quaid, and the way the court in Vault v Quaid resolved a similar contradiction was to rule in favor of fair use, and since Kaplan did not, he should be overruled and insofar as the statute is self-contradictory it cannot be enforced. Well, I'm not a lawyer but maybe something like this can be argued, I hope. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 22:04:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA19911 for dvd-discuss-outgoing; Mon, 11 Sep 2000 22:04:27 -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 WAA19908 for ; Mon, 11 Sep 2000 22:04:26 -0400 Received: from ppp.anonymizer.com (c03-099.015.popsite.net [64.24.74.99]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id TAA21255 for ; Mon, 11 Sep 2000 19:07:21 -0700 (PDT) Message-Id: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 11 Sep 2000 19:05:21 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000911213648.29872.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 02:36 PM 9/11/2000 -0700, Bryan Taylor wrote: >--- Eric Eldred wrote: > > [...] But I'd have any amicus brief argue that the DMCA is > > unconstitutional. > >There are two ways to do this that I see: one is to argue the First >Amendment, which we are definitely going to do, and the second is to >argue that it wasn't made via validly following an enumerated >Congressional Power (eg: copyright & commerce). > >In the 2nd outline I took out most of the details regarding the not >within Congressional Power argument. I did this on the recommendation >of James Tyre, who didn't include it in his list of "keep this" stuff. >I'd say this type of argument is squarely within his area of legal >expertise, so I'm defering to him. > >Incidentally, the O'Brien standard puts a burden of demonstration of >the Constitutional Power derivation on the judge in order to pass 1A >muster. I certainly expect us to point out that Kaplan didn't bother >trying to do this and shirked his duty to do this by "rubber stamping" >his own injuction. > >Hopefully James will clarify his reasoning. I realize that we're not >exactly the most qualified to make the argument, but I certainly want >to make sure that *somebody* makes the point. If I knew that a group of >Constitutional scholars was likely to make the same point, I would feel >differently. Subjective judgment call, eminently open to second-guessing. 1. The original outline was too ambitious for any amicus brief. Too much to cover, too little space. Given page limits, I don't think a brief on that outline could be well-written, instead of just taking passing shots at points which should be more fully made. Better to make less points, develop the strong ones more fully than to throw away an argument by not fully developing it for the sake of making some other argument. 2. As a corollary to 1, even if the original outline could be done within page limits, it still was too ambitious. The best amicus briefs focus on a limited number of points, not on every point which could be made, which is the job of 2600's attorneys. 3. This is not the usual amicus we're talking about, there's nothing usual at all about OpenLaw. ;-) What I was attempting to do was to look at the "profile" of this group (programmers, Linux users, mostly) and match that profile to things an appellate court might be most interested in hearing from this group. This group can say a lot about interoperability, open source, how code is developed, how DMCA creates problems with that, and many similar things, the issues where the tech intersects the law. This group does not have inherent qualifications to speak about congressional power, "pure" law matters. This does not mean that the argument is wrong, or that there haven't been lots of good things said about it on the list. It is just that I am afraid that a brief which covers too much will end up not being heard at all, so I'm trying to focus on the subject matters for which this group is most qualified to speak, since those are the things that likely will most interest an appellate court. (And please note that I'm saying this only in the context of focusing the brief, not that you all really aren't qualified.) I have no special knowledge as to what other amicus briefs there will be, but it is sure fire that there will be others, and that some will be from con law scholars. So this is just a best guess on my part about how this particular group can best add value to the process, and some thoughts on how that added value can be diluted by biting off too much. There's enough out there to write a 150 page brief, but we can't do that even if we wanted to, so we need to decide what the strongest arguments are from this group, dump the rest. Not an easy choice, but a choice which must be made. -------------------------------------------------------------------- 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 Sep 11 22:37:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20616 for dvd-discuss-outgoing; Mon, 11 Sep 2000 22:37:10 -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 WAA20613 for ; Mon, 11 Sep 2000 22:37:10 -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 WAA07981; Mon, 11 Sep 2000 22:38:07 -0400 (EDT) Message-ID: <39BD97A5.F7D8F2B7@mit.edu> Date: Mon, 11 Sep 2000 22:40:37 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Scanned Judiciary Committee Report Content-Type: text/plain; charset=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 first 25 pages of section-by-section analysis are (finally!) online at http://www.mit.edu/~ravi_n/ They are 300dpi TIFF images so you need to resize them in your TIFF viewer in order to view them on your computer (but, though small, they print out reasonably well). I would appreciate it if someone would mirror them soon because, now that I've finally graduated, I know my MIT account (where they are being served from) will eventually be deleted, even if I'm not sure when. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 22:44:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20744 for dvd-discuss-outgoing; Mon, 11 Sep 2000 22:44:44 -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 WAA20741 for ; Mon, 11 Sep 2000 22:44:44 -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 WAA20967 for ; Mon, 11 Sep 2000 22:45:44 -0400 (EDT) Message-ID: <39BD98D6.2FE6AA4E@mediaone.net> Date: Mon, 11 Sep 2000 22:45:42 -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] Partial Outline for 2nd Circuit Amicus Brief References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.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 "James S. Tyre" wrote: > > At 02:36 PM 9/11/2000 -0700, Bryan Taylor wrote: > > >--- Eric Eldred wrote: > > > [...] But I'd have any amicus brief argue that the DMCA is > > > unconstitutional. > > > >There are two ways to do this that I see: one is to argue the First > >Amendment, which we are definitely going to do, and the second is to > >argue that it wasn't made via validly following an enumerated > >Congressional Power (eg: copyright & commerce). > > > >In the 2nd outline I took out most of the details regarding the not > >within Congressional Power argument. I did this on the recommendation > >of James Tyre, who didn't include it in his list of "keep this" stuff. > >I'd say this type of argument is squarely within his area of legal > >expertise, so I'm defering to him. > > > >Incidentally, the O'Brien standard puts a burden of demonstration of > >the Constitutional Power derivation on the judge in order to pass 1A > >muster. I certainly expect us to point out that Kaplan didn't bother > >trying to do this and shirked his duty to do this by "rubber stamping" > >his own injuction. > > > >Hopefully James will clarify his reasoning. I realize that we're not > >exactly the most qualified to make the argument, but I certainly want > >to make sure that *somebody* makes the point. If I knew that a group of > >Constitutional scholars was likely to make the same point, I would feel > >differently. > > Subjective judgment call, eminently open to second-guessing. > > 1. The original outline was too ambitious for any amicus brief. Too much > to cover, too little space. Given page limits, I don't think a brief on > that outline could be well-written, instead of just taking passing shots at > points which should be more fully made. Better to make less points, > develop the strong ones more fully than to throw away an argument by not > fully developing it for the sake of making some other argument. > > 2. As a corollary to 1, even if the original outline could be done within > page limits, it still was too ambitious. The best amicus briefs focus on a > limited number of points, not on every point which could be made, which is > the job of 2600's attorneys. > > 3. This is not the usual amicus we're talking about, there's nothing usual > at all about OpenLaw. ;-) What I was attempting to do was to look at the > "profile" of this group (programmers, Linux users, mostly) and match that > profile to things an appellate court might be most interested in hearing > from this group. This group can say a lot about interoperability, open > source, how code is developed, how DMCA creates problems with that, and > many similar things, the issues where the tech intersects the law. This > group does not have inherent qualifications to speak about congressional > power, "pure" law matters. > > This does not mean that the argument is wrong, or that there haven't been > lots of good things said about it on the list. It is just that I am afraid > that a brief which covers too much will end up not being heard at all, so > I'm trying to focus on the subject matters for which this group is most > qualified to speak, since those are the things that likely will most > interest an appellate court. (And please note that I'm saying this only in > the context of focusing the brief, not that you all really aren't qualified.) > > I have no special knowledge as to what other amicus briefs there will be, > but it is sure fire that there will be others, and that some will be from > con law scholars. So this is just a best guess on my part about how this > particular group can best add value to the process, and some thoughts on > how that added value can be diluted by biting off too much. There's enough > out there to write a 150 page brief, but we can't do that even if we wanted > to, so we need to decide what the strongest arguments are from this group, > dump the rest. Not an easy choice, but a choice which must be made. > > -------------------------------------------------------------------- > 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 In that case, I fall back upon my suggestion to Tom Vogt about a preemptive strike. If I had to rate DeCSS upon it's artistry I'd give it poor marks -- more of a bawdy Limerick, or a scree than Haiku -- but I still see it as speech, and it's artistic merit had better not be an item of consideration. The ways I'd lay into the code in a review are simply none of the law's business. Use of variable names, parens, and statement boundaries are quite simply not something they are competent to comment upon. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 22:49:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20812 for dvd-discuss-outgoing; Mon, 11 Sep 2000 22:49:00 -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 WAA20809 for ; Mon, 11 Sep 2000 22:49:00 -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 WAA23596 for ; Mon, 11 Sep 2000 22:50:00 -0400 (EDT) Message-ID: <39BD99D8.E0B3123F@mediaone.net> Date: Mon, 11 Sep 2000 22:50:00 -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] Scanned Judiciary Committee Report References: <39BD97A5.F7D8F2B7@mit.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > > The first 25 pages of section-by-section analysis are > (finally!) online at http://www.mit.edu/~ravi_n/ > They are 300dpi TIFF images so you need to resize them in your > TIFF viewer in order to view them on your computer (but, though > small, they print out reasonably well). > I would appreciate it if someone would mirror them soon because, > now that I've finally graduated, I know my MIT account (where they > are being served from) will eventually be deleted, even if I'm not > sure when. > > - Ravi Nanavati Go see if Jim Davis is still at the Media Lab. If he's there tell him that Jim Williams from PKT is asking as a favor that he keep your stuff. (Don't know if he's interested in this subject or not...) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 22:52:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20996 for dvd-discuss-outgoing; Mon, 11 Sep 2000 22:52:11 -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 WAA20993 for ; Mon, 11 Sep 2000 22:52:11 -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 WAA25071; Mon, 11 Sep 2000 22:53:07 -0400 (EDT) Message-ID: <39BD9B26.CD231D47@mit.edu> Date: Mon, 11 Sep 2000 22:55:34 -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] Partial Outline for 2nd Circuit Amicus Brief References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.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 "James S. Tyre" wrote: > This does not mean that the argument is wrong, or that there haven't been > lots of good things said about it on the list. It is just that I am afraid > that a brief which covers too much will end up not being heard at all, so > I'm trying to focus on the subject matters for which this group is most > qualified to speak, since those are the things that likely will most > interest an appellate court. (And please note that I'm saying this only in > the context of focusing the brief, not that you all really aren't qualified.) > > I have no special knowledge as to what other amicus briefs there will be, > but it is sure fire that there will be others, and that some will be from > con law scholars. So this is just a best guess on my part about how this > particular group can best add value to the process, and some thoughts on > how that added value can be diluted by biting off too much. There's enough > out there to write a 150 page brief, but we can't do that even if we wanted > to, so we need to decide what the strongest arguments are from this group, > dump the rest. Not an easy choice, but a choice which must be made. > > -------------------------------------------------------------------- > 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 This raises another issue for me. Given that there has been a great deal of interesting and useful discussion about the issues of the case here and that not all of that discussion can make it into an Openlaw brief, to what extent can non-Openlaw amicus briefs take advantage of this forum? Can their writers read and get ideas from these discussions, can we encourage them to look here before finalizing their briefs, can non-Openlaw briefs be submitted here for comments and suggestions (and so on)? I'm asking because I imagine that courts want to ensure that different amicus briefs really are independent, but I don't know how they do that. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 22:53:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA21057 for dvd-discuss-outgoing; Mon, 11 Sep 2000 22:53:23 -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 WAA21054 for ; Mon, 11 Sep 2000 22:53:23 -0400 Received: from swbell.net ([64.216.210.80]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0R00JIO6GKPU@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 21:48:20 -0500 (CDT) Date: Mon, 11 Sep 2000 21:39:57 -0500 From: Jolley Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 To: dvd-discuss@eon.law.harvard.edu Message-id: <39BD977D.77BC419D@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: <20000911203511.23549.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: > > Here's outline version 2. I incorporated all of the suggestions and > filled in an outline of the reverse engineering argument, which I > envision mainly as a "here's what Kaplan ignored" summary and a > feel-good essay about the role of open source and reverse engineering. > > Here's my stab at filling in section III. > III) Authority of Copyight Holder Existed via First Sale > A) CSS fails on criteria for authorized access control 1) Access control must deny access to *a person* when *that person* is not authorized 2) CSS never denies access 3) Correctly cite the House Judiciary Committee's section-by-section analysis I'm sure more can be added but the outline looks like a very long document. Finally, in the prelimiary statement try to make use of Kaplan's statement on Page 77 of his opinion - "..the free exchange of ideas and information that is a central value of our nation." It might be a good contrast for showing how his opinion is just the opposite. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 23:18:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA21376 for dvd-discuss-outgoing; Mon, 11 Sep 2000 23:18:47 -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 XAA21373 for ; Mon, 11 Sep 2000 23:18:46 -0400 Received: from ppp.anonymizer.com (c03-099.015.popsite.net [64.24.74.99]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA00975 for ; Mon, 11 Sep 2000 20:21:41 -0700 (PDT) Message-Id: <4.3.2.7.2.20000911201207.04be45d0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 11 Sep 2000 20:19:41 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39BD9B26.CD231D47@mit.edu> References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:55 PM 9/11/2000 -0400, Ravi Nanavati wrote: >This raises another issue for me. Given that there has been a great >deal of interesting and useful discussion about the issues of the >case here and that not all of that discussion can make it into an >Openlaw brief, to what extent can non-Openlaw amicus briefs take >advantage of this forum? Can their writers read and get ideas >from these discussions, can we encourage them to look here before >finalizing their briefs, can non-Openlaw briefs be submitted here >for comments and suggestions (and so on)? I'm asking because I >imagine that courts want to ensure that different amicus briefs >really are independent, but I don't know how they do that. All of the above is possible, though realistically, it is doubtful if typical amici would want to submit their briefs here for pre-review. Sometimes (but not always) the party on behalf of whom the amici are being written will attempt to coordinate who does what, to make sure that everything is covered. But other times, amici will just go and do it. I suspect we'll see some of both on this appeal, but surely there is nothing wrong with anyone looking through what's in the archives here. New sig quote added, to amuse the non-lawyers. The case has nothing to do with anything relevant here, but I just read 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 "Unflattering though it may be, the truth is that lawyers in the American system are officially fungible." Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 448 (Ward, J., concurring) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 11 23:50:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA21714 for dvd-discuss-outgoing; Mon, 11 Sep 2000 23:50:19 -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 XAA21710 for ; Mon, 11 Sep 2000 23:50:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA09855 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 23:52:19 -0400 Date: Mon, 11 Sep 2000 23:52:14 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000911235214.D9311@eldritchpress.org> References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> <39BD9B26.CD231D47@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39BD9B26.CD231D47@mit.edu>; from ravi_n@mit.edu on Mon, Sep 11, 2000 at 10:55:34PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 10:55:34PM -0400, Ravi Nanavati wrote: > "James S. Tyre" wrote: > > This does not mean that the argument is wrong, or that there haven't been > > lots of good things said about it on the list. It is just that I am afraid > > that a brief which covers too much will end up not being heard at all, so > > I'm trying to focus on the subject matters for which this group is most > > qualified to speak, since those are the things that likely will most > > interest an appellate court. (And please note that I'm saying this only in > > the context of focusing the brief, not that you all really aren't qualified.) > > > > I have no special knowledge as to what other amicus briefs there will be, > > but it is sure fire that there will be others, and that some will be from > > con law scholars. So this is just a best guess on my part about how this > > particular group can best add value to the process, and some thoughts on > > how that added value can be diluted by biting off too much. There's enough > > out there to write a 150 page brief, but we can't do that even if we wanted > > to, so we need to decide what the strongest arguments are from this group, > > dump the rest. Not an easy choice, but a choice which must be made. > > > > -------------------------------------------------------------------- > > 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 > > This raises another issue for me. Given that there has been a great > deal of interesting and useful discussion about the issues of the > case here and that not all of that discussion can make it into an > Openlaw brief, to what extent can non-Openlaw amicus briefs take > advantage of this forum? Can their writers read and get ideas > from these discussions, can we encourage them to look here before > finalizing their briefs, can non-Openlaw briefs be submitted here > for comments and suggestions (and so on)? I'm asking because I > imagine that courts want to ensure that different amicus briefs > really are independent, but I don't know how they do that. You'll note that Kaplan airily dismissed the amicus briefs first time (all on the defense side, I believe, thus slanted?!). Surely the appeals court knows better. As far as I am concerned, everything I write is covered by the standard [cc]: http://cyber.law.harvard.edu/cc/cc.html "to foster a rich public domain." I think ACM ought to really, seriously tackle the Reverse Engineering part of this. They fought for that exemption and are getting screwed by Kaplan; the appeals court ought to listen to their (our) expertise. Any members want to bring it to the attention of the ACM powers-that-be today? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 00:04:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA22119 for dvd-discuss-outgoing; Tue, 12 Sep 2000 00:04:29 -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 AAA22115 for ; Tue, 12 Sep 2000 00:04:27 -0400 Received: from ppp.anonymizer.com (c03-099.015.popsite.net [64.24.74.99]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA06674 for ; Mon, 11 Sep 2000 21:07:18 -0700 (PDT) Message-Id: <4.3.2.7.2.20000911205702.04cc0d30@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 11 Sep 2000 21:05:17 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000911235214.D9311@eldritchpress.org> References: <39BD9B26.CD231D47@mit.edu> <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> <39BD9B26.CD231D47@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 11:52 PM 9/11/2000 -0400, Eric Eldred wrote: >I think ACM ought to really, seriously tackle the Reverse Engineering >part of this. They fought for that exemption and are getting screwed >by Kaplan; the appeals court ought to listen to their (our) expertise. >Any members want to bring it to the attention of the ACM powers-that-be >today? Oddly enough, I'm a member of the (quite new) ACM Committee on Law and Computing Technology. The committee's first official act was to join Lessig's amicus in the cp4break case. This may be their second. -------------------------------------------------------------------- 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 "Unflattering though it may be, the truth is that lawyers in the American system are officially fungible." Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 448 (Ward, J., concurring) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 00:05:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA22135 for dvd-discuss-outgoing; Tue, 12 Sep 2000 00:05:01 -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 AAA22131 for ; Tue, 12 Sep 2000 00:04:59 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 12 Sep 2000 00:05:10 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Date: Tue, 12 Sep 2000 00:05:09 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Looking over the outline with view towards chopping things out, I think we can make an excellent case for the reverse engineering argument and the first sale argument. Other sections have useful comments and citations that could fit well into these. I would move the discussion of open source and "adherents of a movement" clause close to the beginning, and change the tone to a factual and less defensive posture. We need to stress that DeCSS is part of a larger software development effort, and the effect of the process is to create innovative products(*). Kaplan viewed development of a Linux player as a substantial argument, but I really think the argument is better stated in general terms of developing any non-licensed player, for Linux, Windows, or whatever. Furthermore, Kaplan in his decision did not consider the licensing contracts to be an intrinsic part of CSS. We could really argue with the last point of Kaplan's decision that tries to cast it as not changing the status quo. The decision threatens to undermine the software industry, which is worth billions of dollars, by rating its intellectual content intrinsically less valuable. (*) I know, too far on this slippery slope and we end up supporting Microsoft. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 00:56:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA22824 for dvd-discuss-outgoing; Tue, 12 Sep 2000 00:56:23 -0400 Received: from mail.cybermesa.com (root@mail.cybermesa.com [198.59.109.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA22821 for ; Tue, 12 Sep 2000 00:56:21 -0400 Received: from internet.cybermesa.com (fenimore@internet.cybermesa.com [198.59.109.7]) by mail.cybermesa.com (8.9.3/8.9.3) with ESMTP id WAA26476 for ; Mon, 11 Sep 2000 22:57:22 -0600 (MDT) Received: (from fenimore@localhost) by internet.cybermesa.com (8.9.0/8.9.3) id WAA22240 for dvd-discuss@eon.law.harvard.edu; Mon, 11 Sep 2000 22:57:22 -0600 (MDT) Date: Mon, 11 Sep 2000 22:57:22 -0600 (MDT) From: Paul Fenimore Message-Id: <200009120457.WAA22240@internet.cybermesa.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 11, 2000 at 01:35:11PM -0700, Bryan Taylor wrote: [ ... ] > I) Kaplan's O'Brien Analysis is Hopelessly Flawed > A) O'Brien standard for intermediate scrutiny does not apply > 1) Not "regulating the nonspeech element" in "course of conduct" > a) Functional capability only after installed on a machine > b) Conduct of distributing code is purely speech-conduct In amicus 1 we had a section addressing, arguendo, the position that links were contributory or vicarious trafficking. Because of that discussion, I don't think we want to simply stop with the statement that distributing code is purely speech-vocal-cord-vibrating-conduct. It is also significant that trafficking is one (or more!) steps removed from circumvention, which is at least one optional step removed from infringement. This may also vaccinate the appeals court against the disease metaphor. How many steps removed from illness does one need to be to avoid a health quarantine? > c) Voluntary public sharing is part of open source's message True, but unless the court comes to the brief ready to dump an O'Brien test, I don't think this gets us anywhere. > d) Compare Bery v. City of New York: Peddling Art > not "conduct", street marketing was part of the message > 3) Computer speech not in scope of statue > a) 1201(c)(4) > b) Software not 'black boxes' refered to by "technology" I think we need to turn this around so that it is a more explicit statement of what Peter Junger and others have suggested: that "technology" is a smoke-screen to distract from the fact that whatever else a program might be, it is speech. Finding a new word to label a protected activity does not remove the activity's protection. > 4) Prior Restraints forbidden > a) 1203(b)(1) vs Kaplan ellipses I think this ought to be the very first thing in the brief. Intellectually hitting people on head with an exquisitly simple anvil gets their attention and holds it. "Look, Kaplan covered 'no prior restraint' with ellipses in his quote, and proceeded to do exactly the thing that is forbidden by the censored part of his quote." There is simply no wiggle room. If we don't get and hold the audience's attention with that opening line, then we have demonstrated brain-death and can remove them from life-support. > b) Constitutional requirement > 5) Strict scrutiny is proper standard > B) O'Brien requires intermediate scrutiny, not "rubber stamp" [ ... ] > E) Not content neutral, depends on examining content > 1) Code communicates a factual method > a) Source code provided for benefit of human readers > b) Object code, especially when combined with source code > has communication value to skilled readers > c) Science of computer security depends on such communications > 2) Would place all of science under intermediate scrutiny I think this is a very strong point, and is one that deserves emphasis. Perhaps a rhetorical question is useful? "What in Kaplan's analysis would allow a court to apply strict scrutiny to any scientific endeavour?" I think the answer is "nothing." The potential problem I see is that we may need a fuller exploration of patent-like effects to really make this stick. It is clear to me that Kaplan doesn't see implications for his ban on the technical community at large. He simply doesn't realize the implications of the process-regulating related nature of his opinion and order. He thinks he can easily and simply tell "good" from "bad" processes. He can't. > 3) Must scrutinize content of code to tell if it decrypts > eg: Compare DeCSS to DoD Speed Ripper -- which decrypts? > 4) 1201(d,e) exceptions are speaker-based > 5) 1201(f)(3) turns on content of speech to determine "purpose" > for why one "provides such information" > 6) 1201(g) exception for "encryption" research excludes > other forms of research based solely on their content > 7) 1201(g)(3)(A) favoring research when "information ... was > disseminated" is content-based This should read "compelled speech," not "content-based." > 8) 1201(g)(3)(B) turning on "whether the person is ... in the > field of encryption technology" is speaker-based > 9) 1201(g)(4) allows dissemination to "person ... working > collaboratively" is content based, and contradicts > 1201(g)(3)(A) > 10) 1201(k) allowing distribution for "security testing" is > content-based > F) Not "incidental restriction" > 1) Guts "fair use", betrays "fair use community" > 2) No alternative outlet for communicating methods > 3) Act of distributing code is "pure speech" > 4) Lack of "intent to infringe" clause burdens legit activity [ ... ] > IV) Kaplan Abused Discretion with Overbroad Injunction > A) Prior Restraint Applies to more than DeCSS.exe executable > 1) Applies to inherently non-executable Source Code > 2) Convolutes DeCSS with other programs > a) Assumes "DeCSS not RE" implies "All programs not RE" > b) Assumes all decryption allows copy stored on hard drive > 3) Application to hyperlinks gross abuse of discretion > B) Fallacy of Kaplan's "resolved by Congress" viewpoint > 1) Abdicates Constitutional role for judicial review > a) "Congress shall make no law ..." > b) Checks and balances exist to correct special interests > from subverting legislature contravening public interest > 2) Kaplan substituted his judgement for that of Congress, erases > critical statutory safeguards from the Copyright Act > a) No analysis of 1201(c)(4) > b) Dismisses 17 USC 109(c) as "sophistry" It strikes me as more than a little peculiar that "paracopyright," a supposidly commerce-related fabrication on the part of Congress, should lead in a case of first impression to a statement that some traditional part of commerce is sophistry. I though Congress was supposed to be "strengthening" commerce. Any you just called 109(c) first sale "sophistry"? That doesn't get high marks for consistency. > c) Ellipses over "no prior restraints" 1203(b)(1) My general comment is that, as was noted here today, 1201(c)(3) explicitly disclaims any patent-like effect for section 1201. This is a critically important point. If we don't make this point someone has to. It is the nexus of the disease metaphor, Kaplan's total ignorance of cryptography, (Kaplan doesn't understand that the keys need to be secret, not the algorithm. A system that relies on secrecy of the algorithm is an attempt to have the lock/handle declared a key. This is the origin of the bank-vault-combination idiocy in the decision.) it ties tightly to the unlimited times and delegation arguments (code-is-law: patent like control is the mechanism by which copyright owners write their own private copyright statute.) I'm saying that it is _really, really_ important to *not* have a precedent set that says that process patent-like control by copyright owners (and their agents) is ok. Well, we've got at least one now in the SDNY, and Streambox is probably a second instance. So I guess I need to modify that to "confirmed on appeal." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 01:27:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA23118 for dvd-discuss-outgoing; Tue, 12 Sep 2000 01:27:24 -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 BAA23111 for ; Tue, 12 Sep 2000 01:27:05 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA09943 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 01:29:22 -0400 Date: Tue, 12 Sep 2000 01:29:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000912012917.B9888@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, Sep 12, 2000 at 12:05:09AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 12:05:09AM -0400, Leland Ray wrote: > > Looking over the outline with view towards chopping things > out, I think we can make an excellent case for the > reverse engineering argument and the first sale argument. ^^^^^^^^^^ > Other sections have useful comments and citations that > could fit well into these. I'd really like to see Robert contribute some of his excellent argument about authority to back this up, and to go beyond it to his whole argument of bogosity of control. It's definitely something that the technical people in this group can fairly and forcefully state. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 02:31:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA23705 for dvd-discuss-outgoing; Tue, 12 Sep 2000 02:31:28 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA23700 for ; Tue, 12 Sep 2000 02:31:22 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Tue, 12 Sep 2000 14:32:02 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Tue, 12 Sep 2000 14:25:17 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0372B3@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] The DMCA is a "plugin" to replace copyright law . Date: Tue, 12 Sep 2000 14:25:10 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If anyone wants to develop this further please extend it at http://www.c2.com/cgi/wiki?PayPerView I would like to see any potential ideas for corporate financial gain at the expense of individuals elaborated there so we know what the future will be like if the law stands unchallenged. cya, Andrew... > -----Original Message----- > From: John Schulien [SMTP:jms@uic.edu] > Sent: Saturday, September 09, 2000 3:22 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] The DMCA is a "plugin" to replace copyright > law. > > Sure. I waive copyright on my rant and place it in the > public domain. Feel free to do with it as you like. > > > > > > > The information transmitted is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, copying or other use of, or taking any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this in error, please contact the sender and delete the material from your system. Utility Services Corporation (USC) is not responsible for any changes made to the material other than those made by USC or for the effect of the changes on the material’s meaning. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 04:37:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA24828 for dvd-discuss-outgoing; Tue, 12 Sep 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 EAA24825 for ; Tue, 12 Sep 2000 04:37:02 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Tue, 12 Sep 2000 10:25:05 +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; Tue, 12 Sep 2000 10:07:50 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Tue, 12 Sep 2000 10:07:50 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000912100750.A32316@lemuria.org> References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> <39BD98D6.2FE6AA4E@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39BD98D6.2FE6AA4E@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: > In that case, I fall back upon my suggestion to > Tom Vogt about a preemptive strike. If I had > to rate DeCSS upon it's artistry I'd give it > poor marks -- more of a bawdy Limerick, or a > scree than Haiku -- but I still see it as speech, > and it's artistic merit had better not be an > item of consideration. better not - the bible is one of the worst pieces of art, from a purely artistic point-of-view. :) but I don't think writing your code so that the variable names rhyme will change a thing. the question still is whether code is a form of expression, and that's independent of the form the code takes. let me ask you US guys a few questions for clarification. please tell me whether there have been any court rulings on these questions: is mathematics considered speech? high-level math is usually much less comprehensible than code (perl excluded :) ). but it is still chosen by mathematicians because it offers those who can understand it a precise means of communication. is legalese considered speech? most legalese is pretty much chinese to the average person, but it is still chosen by lawyers as a means of communication. probably because they believe it is better than english for that purpose. are manuals and other documentations speech? they don't express any political opinion, and they're usually not exactly works of art. I think a manual is the closest thing to code we come without entering the world of computers. a good documentation of a device (say, a patent description) should enable one to build the device, much as a good (as in "no errors") piece of code should enable one to build/compile the program. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 07:01:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA26143 for dvd-discuss-outgoing; Tue, 12 Sep 2000 07:01:23 -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 HAA26140 for ; Tue, 12 Sep 2000 07:01:21 -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 HAA09081; Tue, 12 Sep 2000 07:02:13 -0400 (EDT) Message-ID: <39BE0DC7.C94E6B8B@mit.edu> Date: Tue, 12 Sep 2000 07:04:39 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Draft Technology Review rebuttal Content-Type: text/plain; charset=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 finally sat down and got past my anger to write a somewhat levelheaded rebuttal to G. Pascal Zachary's TR column (http://www.techreview.com/articles/oct00/zachary.htm) As far as I can tell, it already looks too long and doesn't include things I want to mention so I'd like help in sharpening it. Here it is: After reading his "Inside Innovation" column, I can only be thankful that G. Pascal Zachary was not around when Gutenberg invented the printing press. He clearly would have suggested that the press be hidden in a closet until the scribes were dealt with, and if he had realized that the printing press would enable the Protestant Reformation he would have told Gutenberg to destroy it. Zachary is simply wrong when he says that "societies don't remake themselves to satisfy a technological imperative." New technologies are open up new possibilities and societies should remake themselves to take advantage of those possibilities. I am not saying that there should be no rules applying to new information technologies. Misuse of those technologies should be punished, but, as current controversies highlight, we don't yet understand what that misuse is. Nor will banning compression formats like MP3 and MP4 help us gain that understanding. Just as it took living with cars to understand what the traffic laws should look like, only after living with new information technologies can we build a consensus on how to regulate them. ------------------------------------- Things I'd like to include: 1) Lots of legitimate uses for MP3 today (personal computer jukeboxes, music distribution for promotional purposes, storing your own content, ...) all of which could easily apply to MP4 in the future. 2) Regulated technologies are directly life threatening, justifying a public interest in controlling innovation even when that means slowing it down. What is the compelling the public interest in slowing down information innovation? 3) We often don't know how a technology will turn out (VCR, for example) so we should regulate cautiously lest we foreclose important new possibilities. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 07:23:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA26683 for dvd-discuss-outgoing; Tue, 12 Sep 2000 07:23:54 -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 HAA26669 for ; Tue, 12 Sep 2000 07:23:52 -0400 Received: (from daemon@localhost) by smtp03.primenet.com (8.9.3/8.9.3) id EAA03589 for ; Tue, 12 Sep 2000 04:23:34 -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 smtpdAAAihaa9g; Tue Sep 12 04:23:25 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 EAA02787 for ; Tue, 12 Sep 2000 04:24:41 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Date: Tue, 12 Sep 2000 04:20:25 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> <39BD98D6.2FE6AA4E@mediaone.net> <20000912100750.A32316@lemuria.org> In-Reply-To: <20000912100750.A32316@lemuria.org> MIME-Version: 1.0 Message-Id: <00091204243401.01644@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, 12 Sep 2000, Tom Vogt wrote: > is legalese considered speech? > most legalese is pretty much chinese to the average person, but it is still > chosen by lawyers as a means of communication. probably because they > believe it is better than english for that purpose. I've broght this up before. Judge Kaplan's Decision meets his test for functionality (do lawyers understand the concept of recursion?) and in fact (IANAL) its own wording could be applied directly to itself to conclude that it's only subject to intermediate scrutiny. All of the appeals court judges that I know have killer senses of humor, but are like engineers in that their tastes in humor tend to leave most folks puzzled. One wonders whether the Circuit would be tickled at this approach. I sincerely doubt that they'd entertain for an instant that legal decisions aren't subject to strict scrutiny. -- | 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 Sep 12 07:54:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA27437 for dvd-discuss-outgoing; Tue, 12 Sep 2000 07:54:56 -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 HAA27434 for ; Tue, 12 Sep 2000 07:54:55 -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 HAA24318 for ; Tue, 12 Sep 2000 07:53:55 -0400 (EDT) Mime-Version: 1.0 X-Sender: reinhold@world.std.com (Unverified) Message-Id: In-Reply-To: <39BD75E9.571A5AB8@mediaone.net> References: <20000911214211.9163.qmail@web515.mail.yahoo.com> <39BD69B1.A871B87C@travel-net.com> <39BD75E9.571A5AB8@mediaone.net> Date: Tue, 12 Sep 2000 07:53:01 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] American Geophysical Union v. Texaco 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 found this cite in the Napstar brief http://dl.napster.com/brief0818.pdf (p. 31, footnote 10) and thought it might be useful re LiVid. "American Geophysical Union v. Texaco Inc., 60 F.3d 913, 924 (2d Cir. 1995) (Copying a work into a different format for use in a setting to which the original embodiment is not suited is transformative.)" [which weighs in favor of fair use.] Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 07:54:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA27429 for dvd-discuss-outgoing; Tue, 12 Sep 2000 07:54:47 -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 HAA27422 for ; Tue, 12 Sep 2000 07:54:46 -0400 Received: from Jana-Server (user-38ld1c1.dialup.mindspring.com [209.86.133.129]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id HAA15949 for ; Tue, 12 Sep 2000 07:55:46 -0400 (EDT) Message-ID: <39BE19C8.A0420A75@mindspring.com> Date: Tue, 12 Sep 2000 07:55:52 -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] 2nd Circuit amicus brief outline 2 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > III) Authority of Copyight Holder Existed via First Sale > > > > A) CSS fails on criteria for authorized access control > 1) Access control must deny access to *a person* when *that > person* is not authorized > 2) CSS never denies access > 3) Correctly cite the House Judiciary Committee's > section-by-section analysis > >From earlier discussion, it was identified that a software dongle was an access control TPM, yet a standard dongle never denies access. How does CSS not qualify as an access control, when a dongle does? mickeym From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 08:20:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA27761 for dvd-discuss-outgoing; Tue, 12 Sep 2000 08:20:53 -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 IAA27757 for ; Tue, 12 Sep 2000 08:20:51 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Yp4S-0001cD-00; Tue, 12 Sep 2000 14:21:52 +0200 Received: from localhost by sites.inka.de with local id 13Yp4T-00019m-00; Tue, 12 Sep 2000 14:21:53 +0200 Date: Tue, 12 Sep 2000 14:21:53 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 Message-ID: <20000912142153.A29702@inka.de> References: <39BE19C8.A0420A75@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39BE19C8.A0420A75@mindspring.com>; from mickeym@mindspring.com on Tue, Sep 12, 2000 at 07:55:52AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 07:55:52AM -0400, mickeym wrote: > From earlier discussion, it was identified that a software dongle was an > access control TPM, yet a standard dongle never denies access. How does > CSS not qualify as an access control, when a dongle does? The dongle does not prevent access, but the lack of it does. The key difference is that the dongles are distributed by the copyright holders of the works in question. If you own a dongle, then, unless it was stolen, which would be an unquestionably illegal act, it was released by the copyright holder of the program to which it grants access. The owner of the dongle is authorised to access the work, others are not and are prevented from doing so by the absence of a dongle. In the case of CSS, licensed players are not distributed by the copyright holders of DVDs and the distributors of players make no attempt to determine that a potential buyer has been authorised to access the DVDs they intend to play. Anyone can buy a DVD player from the nearest department store and play unauthorised DVDs (e.g. bit for bit copies) on it. 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 Sep 12 08:45:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA28309 for dvd-discuss-outgoing; Tue, 12 Sep 2000 08:45:47 -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 IAA28306 for ; Tue, 12 Sep 2000 08:45:46 -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 IAA04069 for ; Tue, 12 Sep 2000 08:46:47 -0400 (EDT) Message-ID: <39BE25B7.C48283BF@mediaone.net> Date: Tue, 12 Sep 2000 08:46:47 -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] Partial Outline for 2nd Circuit Amicus Brief References: <4.3.2.7.2.20000911182456.00ae1f00@cyberpass.net> <39BD98D6.2FE6AA4E@mediaone.net> <20000912100750.A32316@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: > > In that case, I fall back upon my suggestion to > > Tom Vogt about a preemptive strike. If I had > > to rate DeCSS upon it's artistry I'd give it > > poor marks -- more of a bawdy Limerick, or a > > scree than Haiku -- but I still see it as speech, > > and it's artistic merit had better not be an > > item of consideration. > > better not - the bible is one of the worst pieces of art, from a purely > artistic point-of-view. :) > > but I don't think writing your code so that the variable names rhyme will > change a thing. the question still is whether code is a form of expression, > and that's independent of the form the code takes. > > let me ask you US guys a few questions for clarification. please tell me > whether there have been any court rulings on these questions: > > is mathematics considered speech? > high-level math is usually much less comprehensible than code (perl > excluded :) ). but it is still chosen by mathematicians because it offers > those who can understand it a precise means of communication. > > is legalese considered speech? > most legalese is pretty much chinese to the average person, but it is still > chosen by lawyers as a means of communication. probably because they > believe it is better than english for that purpose. > > are manuals and other documentations speech? > they don't express any political opinion, and they're usually not exactly > works of art. I think a manual is the closest thing to code we come without > entering the world of computers. a good documentation of a device (say, a > patent description) should enable one to build the device, much as a good > (as in "no errors") piece of code should enable one to build/compile the > program. > Following D. C. Sessions on the legalese might be fun, but unless we have a very solid precident to work with, we should stay away from the other two. I don't think we want to take a chance on establishing the law here. We want the law to be already established, and not properly followed by Kaplan. I think we are on much safer ground equating DeCSS with soft porn, things the government wants kept secret, and the KKK. We don't want to section off a new category of speech; which might allow new law to go with it. (Although, I would like to see my current .sig established as the law of the land.) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 08:58:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA28492 for dvd-discuss-outgoing; Tue, 12 Sep 2000 08:58:49 -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 IAA28489 for ; Tue, 12 Sep 2000 08:58:48 -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 HAA07741 for ; Tue, 12 Sep 2000 07:59:49 -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 HAA26350 for ; Tue, 12 Sep 2000 07:59:49 -0500 (CDT) Received: by cdmpls02m.cdpoly.cargill.com with Internet Mail Service (5.5.2448.0) id ; Tue, 12 Sep 2000 07:55:31 -0500 Message-ID: From: "Kroll, Dave" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] new DeCSS tool Date: Tue, 12 Sep 2000 07:55:30 -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 A good speaking voice and a vivid command of English may become a necessary qualification for open source programmers. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. Wow! I just had a flashback to the last scene of (The movie, at least. Don't remember how the novel ends.) _Fahrenheit 451_. All of the resistance members shuffled around, reciting and memorizing "their" novel for the day when books could again be published. How sad. David Kroll QA Coordinator 612-882-6452 Dave_Kroll@cdpoly.com -----Original Message----- From: Sphere [SMTP:sphere1952@mediaone.net] Sent: Monday, September 11, 2000 6:43 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] new DeCSS tool Tom Vogt wrote: > > I have been supplied with a new DeCSS-derivative called "DecVOB" and > put it on my webpage (http://www.lemuria.org/DeCSS/decss.html). > > this tool uses the method from "DeCSS Plus" (frank's divide&conquer > attack) so it does not require a player key. it also outputs the > unencrypted VOB to stdout so that any mpeg-player can show it. > > I have not yet had any time to experiment with this tool, but will do > so soon. this looks like a very interesting thing. Maybe you should make a preemptive strike. Get it translated into English and have someone sing it. Or you could add a bunch of coments to the source code expressing your opinion of the MPAA, DMCA, the best congressmen money can buy, and quisling judges who rule in favor of their clients. (Don't swear, but get real close.) Then just read the code aloud and include the mp3 in the gz. A good speaking voice and a vivid command of English may become a necessary qualification for open source programmers. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 09:08:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA28648 for dvd-discuss-outgoing; Tue, 12 Sep 2000 09:08:52 -0400 Received: from chmls19.mediaone.net (chmls19.mediaone.net [24.147.1.154]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA28645 for ; Tue, 12 Sep 2000 09:08:51 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls19.mediaone.net (8.10.1/8.10.1) with ESMTP id e8CDB0g04891 for ; Tue, 12 Sep 2000 09:11:01 -0400 (EDT) Message-ID: <39BE2B20.E5245213@mediaone.net> Date: Tue, 12 Sep 2000 09:09:52 -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] new DeCSS tool 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 "Kroll, Dave" wrote: > > A good speaking voice and a vivid command > of English may become a necessary > qualification for open source programmers. > > -- > Sphere. > > Government has no legitimate interest in > protecting a monopoly from free speech. > > Wow! I just had a flashback to the last scene of > (The movie, at least. Don't remember how the > novel ends.) _Fahrenheit 451_. All of the > resistance members shuffled around, reciting and > memorizing "their" novel for the day when books > could again be published. > > How sad. > > David Kroll > QA Coordinator > 612-882-6452 > Dave_Kroll@cdpoly.com > It was a Good movie. It stuck to the book. You can bring in quite a few classic anti-utopias here: 1984, Fahrenheit 451, Neuromancer -- maybe even Brave New World. "War is Peace Freedom is Slavery Ignorance is Truth" "What book are you?" "Ice" -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 09:37:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA29083 for dvd-discuss-outgoing; Tue, 12 Sep 2000 09:37:48 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA29080 for ; Tue, 12 Sep 2000 09:37:47 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id JAA07450 for ; Tue, 12 Sep 2000 09:38:48 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA17699; Tue, 12 Sep 2000 09:38:48 -0400 (EDT) Date: Tue, 12 Sep 2000 09:38:48 -0400 (EDT) Message-Id: <200009121338.JAA17699@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000912012917.B9888@eldritchpress.org> References: <20000912012917.B9888@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > I'd really like to see Robert contribute some of his excellent > argument about authority to back this up, and to go beyond it > to his whole argument of bogosity of control. It's definitely > something that the technical people in this group can fairly > and forcefully state. Hmmm.... I don't normally write from outlines, but I'll give it a whirl. The focus here is just on refuting Kaplan; both the finding that DeCSS circumvents, and that it has no significant legitimate commercial purpose. NB this is a more detailed outline than some others, at least under I), but there's still several pages of text here: I) Authority adheres to persons, not devices A) Kaplan and the plaintiffs argue that DeCSS is an unauthorized *device* 1) Licensed-CSS and DeCSS provide access in the same way in the same circumstances 2) No person can gain access to a work through DeCSS which licensed-CSS would not provide 3) "Authority of the copyright owner" in 1201(a)(3) is being interpreted as the authority over production of a device, not authority to grant access to a specific person. B) "Authorized device" interpretation is inconsistent with the law 1) 1201(c)(3) C) "Authorized device" interpretation is facially unconstitutional 1) Patent-like rights with no time limit (vs. "for limited times") 2) Rights to an invention granted to authors. D) "Authorized device" interpretation is inconsistent with documented Congressional intent 1) "Authorized person" in Judiciary section-by-section analysis 2) "... without consulting other interested parties" in conference committee report 3) Effectively grants statutory protection to use controls, *specifically* denied by Congress 4) ?Sony speeches? 5) ?"Authorized person" in the cable statute definitions, cited as a parallel in the Judiciary section-by-section analysis? E) Other arguments advanced for "authorized device" interpretation are groundless 1) Plaintiffs' "encryption, therefore access control" fails a) Text of statute: no reference to crypto in (a)(3)(B), "decrypts or ..." just about anything else in (A). b) Judiciary section-by-section analysis confirms that there is no statutory definition of particular protected technologies 2) Kaplan's "requires a player key, no other lawful way to get it, therefore an access control" a) Reverse-engineering is a lawful way of getting a player key; confirmed in Sega v. Accolade, as cited in Judiciary analysis b) This simply means that access is provided if CSS is functioning normally; by that standard, a power cord is an access control. II) Defendants had legitimate purposes A) Legitimate purposes for building a non-licensed player: 1) Bypassing region coding, whose sole purpose is restraint of trade 2) Bypassing use controls, e.g., no hi-res digital output (for HDTV) B) On defendants' uncontested testimony, they were trying to build a player C) Kaplan ignored that based on hearsay and speculation from plaintiffs' witnesses --- abuse of discretion. III) Effects of "authorized device" interpretation A) Imposition of use controls B) Distortion of player market C) Overruling Universal v. Sony, U.S. v. Paramount, etc. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 10:48:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA29991 for dvd-discuss-outgoing; Tue, 12 Sep 2000 10:48:18 -0400 Received: from samsara.law.cwru.edu (samsara.LAW.CWRU.Edu [129.22.186.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA29988 for ; Tue, 12 Sep 2000 10:48:17 -0400 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.9.3/8.9.3) with ESMTP id KAA24414; Tue, 12 Sep 2000 10:50:40 -0400 Message-Id: <200009121450.KAA24414@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Scanned Judiciary Committee Report In-reply-to: Your message of "Mon, 11 Sep 2000 22:40:37 EDT." <39BD97A5.F7D8F2B7@mit.edu> Date: Tue, 12 Sep 2000 10:50:10 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: : The first 25 pages of section-by-section analysis are : (finally!) online at http://www.mit.edu/~ravi_n/ : They are 300dpi TIFF images so you need to resize them in your : TIFF viewer in order to view them on your computer (but, though : small, they print out reasonably well). : I would appreciate it if someone would mirror them soon because, : now that I've finally graduated, I know my MIT account (where they : are being served from) will eventually be deleted, even if I'm not : sure when. : : - Ravi Nanavati I have mirrored them at . I would suggest that others mirror them as well, as the samsara site may not persist past June, 2001. -- 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 Sep 12 11:10:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30319 for dvd-discuss-outgoing; Tue, 12 Sep 2000 11:10:33 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA30316 for ; Tue, 12 Sep 2000 11:10:30 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Yrib-00058j-00; Tue, 12 Sep 2000 17:11:29 +0200 Received: from localhost by sites.inka.de with local id 13Yric-0002nz-00; Tue, 12 Sep 2000 17:11:30 +0200 Date: Tue, 12 Sep 2000 17:11:30 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Scanned Judiciary Committee Report Message-ID: <20000912171129.A10715@inka.de> References: <39BD97A5.F7D8F2B7@mit.edu> <200009121450.KAA24414@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200009121450.KAA24414@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Tue, Sep 12, 2000 at 10:50:10AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 10:50:10AM -0400, Peter D. Junger wrote: > I have mirrored them at . > I would suggest that others mirror them as well, as the samsara site > may not persist past June, 2001. http://sites.inka.de/risctaker/leghist.tgz 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 Sep 12 12:11:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31410 for dvd-discuss-outgoing; Tue, 12 Sep 2000 12:11:10 -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 MAA31407 for ; Tue, 12 Sep 2000 12:11:09 -0400 Received: from localhost (khockenb@localhost) by attila.stevens-tech.edu (8.9.3/8.9.3/7) with ESMTP id MAA8490424 for ; Tue, 12 Sep 2000 12:12:10 -0400 (EDT) Date: Tue, 12 Sep 2000 12:12:09 -0400 From: Kurt Hockenbury To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <200009121338.JAA17699@soggy-fibers.ai.mit.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 12 Sep 2000, Robert S. Thau wrote: > II) Defendants had legitimate purposes > A) Legitimate purposes for building a non-licensed player: > 1) Bypassing region coding, whose sole purpose is restraint of trade > 2) Bypassing use controls, e.g., no hi-res digital output (for HDTV) 3) Bypassing commercial advertisements From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 12:17:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31963 for dvd-discuss-outgoing; Tue, 12 Sep 2000 12:17:47 -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 MAA31960 for ; Tue, 12 Sep 2000 12:17:45 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.11.0/8.11.0) with ESMTP id e8CGIfq31882 for ; Tue, 12 Sep 2000 11:18:41 -0500 Date: Tue, 12 Sep 2000 11:18:41 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 12 Sep 2000, Kurt Hockenbury wrote: > On Tue, 12 Sep 2000, Robert S. Thau wrote: > > > II) Defendants had legitimate purposes > > A) Legitimate purposes for building a non-licensed player: > > 1) Bypassing region coding, whose sole purpose is restraint of trade > > 2) Bypassing use controls, e.g., no hi-res digital output (for HDTV) > > 3) Bypassing commercial advertisements 4) Reducing barrier to entry for developers of DVD player software (should lead to increased competition and thus decreased costs to consumers) ---Steve From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 12:19:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA32143 for dvd-discuss-outgoing; Tue, 12 Sep 2000 12:19:32 -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 MAA32127 for ; Tue, 12 Sep 2000 12:19:27 -0400 Message-ID: <20000912161952.21892.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 12 Sep 2000 09:19:52 PDT Date: Tue, 12 Sep 2000 09:19:52 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > In amicus 1 we had a section addressing, arguendo, the position that > links were contributory or vicarious trafficking. Because of that > discussion, I don't think we want to simply stop with the statement > that distributing code is purely speech-vocal-cord-vibrating-conduct. > It is also significant that trafficking is one (or more!) steps > removed from circumvention, which is at least one optional step > removed from infringement. This may also vaccinate the appeals court > against the disease metaphor. How many steps removed from illness > does one need to be to avoid a health quarantine? I think these are good points. Each step gets you farther away from the substantial interest needed to justify an O'Brien test. What's the best place to work this is? > > c) Voluntary public sharing is part of open source's > message > > True, but unless the court comes to the brief ready to dump an > O'Brien test, I don't think this gets us anywhere. Actually, this type of argument was used in Bery v City of NY by the 2nd Circuit to reject an O'Brien standard. There, part of the message of peddling art in the streets is that art belongs to the people. The O'Brien test requires you not to stiffle substantially more speech than necessary, and to do so in a content neutral way. I think what Bery creates is a form of "merger principle" that says that if the "non-speech" elements aren't inherently distinct from the speech elements that the O'Brien standard fails. I think this argument verbalizes deep seated feelings of the open source camp. Something is rotten when you say that "providing to the public" is a critical element of wrong-doing, because our message is that it is just the opposite -- a critical element of right-doing. The Constitutional purpose of Copyright would seem to say the same thing. > > d) Compare Bery v. City of New York: Peddling Art > > not "conduct", street marketing was part of the message > > 3) Computer speech not in scope of statue > > a) 1201(c)(4) > > b) Software not 'black boxes' refered to by "technology" > > I think we need to turn this around so that it is a more explicit > statement of what Peter Junger and others have suggested: that > "technology" is a smoke-screen to distract from the fact that > whatever else a program might be, it is speech. Finding a new word > to label a protected activity does not remove the activity's > protection. Good point. > > 4) Prior Restraints forbidden > > a) 1203(b)(1) vs Kaplan ellipses > > I think this ought to be the very first thing in the brief. [...] I agree, this should put nearly any reader on alert that this judge is egregiously trying to rewrite the law to produce a result that is forbidden jointly by Congress and Constitution. > > 2) Would place all of science under intermediate scrutiny > I think this is a very strong point, and is one that deserves > emphasis. Agreed. > > 7) 1201(g)(3)(A) favoring research when "information ... was > > disseminated" is content-based > This should read "compelled speech," not "content-based." I guess that's true. Which precedent is it that says that compelled speech is a no-no? > My general comment is that, as was noted here today, 1201(c)(3) > explicitly disclaims any patent-like effect for section 1201. Hmmm. Does the legislative history provide any juicy quotes explaining why (c)(3) was enacted. On it's face, I don't think it helps us, but the *reasoning* behind it might be extremely valuable. > [...] This is the origin of the bank-vault-combination idiocy in the > decision. I want to work in a response to this some how. I was thinking of the "protecting insecurity does not lead to security" thought might be a good place. __________________________________________________ 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 Sep 12 12:41:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01080 for dvd-discuss-outgoing; Tue, 12 Sep 2000 12:41:17 -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 MAA01077 for ; Tue, 12 Sep 2000 12:41:17 -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 MAA06002 for ; Tue, 12 Sep 2000 12:42:19 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA17793; Tue, 12 Sep 2000 12:42:19 -0400 (EDT) Date: Tue, 12 Sep 2000 12:42:19 -0400 (EDT) Message-Id: <200009121642.MAA17793@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 In-Reply-To: <20000912161952.21892.qmail@web515.mail.yahoo.com> References: <20000912161952.21892.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: > Hmmm. Does the legislative history provide any juicy quotes explaining > why (c)(3) was enacted. On it's face, I don't think it helps us, but > the *reasoning* behind it might be extremely valuable. >From the legislative history section of the "authority" paper: But, might it change things if a player manufactured without the cooperation of the copyright holders exposed their works to the possibility of unauthorized duplication? The answer, as clearly envisioned by Congress, is no; they even amended the law to try to preclude such an interpretation. Sen. Ashcroft, again, in the immediate continuation of the speech quoted above: Another important amendment was added that makes clear that this law does not mandate any particular selection of components for the design of any technology. I was concerned that this legislation could be interpreted as a mandate on product manufacturers to design products so as to respond affirmatively to effective technical protection measures available in the marketplace. In response to this concern I was pleased to offer an amendment, with the support of both the Chairman and the Ranking Member of the Committee, to avoid the unintended effect of having design requirements imposed on product and component manufacturers, which would have a dampening effect on innovation, and on the research and development of new products. Accordingly, my amendment clarified that product designers need not design consumer electronics, telecommunications, or computing products, nor design and select parts or components for such products, in order to respond to particular technological protection measures. This amendment reflects my belief that product manufacturers should remain free to design and produce consumer electronics, telecommunications and computing products without the threat of incurring liability for their design decisions under this legislation. Nothing could cause greater disaster and a swifter downfall of our vibrant technology sector than to have the federal government dictating the design of computer chips or mother boards. By way of example, during the course of our deliberations, we were made aware of certain video boards used in personal computers in order to allow consumers to receive television signals on their computer monitors which, in order to transform the television signal from a TV signal to one capable of display on a computer monitor, remove attributes of the original signal that may be associated with certain copy control technologies. I am acutely aware of this particular example because I have one of these video boards on my own computer back in my office. It is quite useful as it allows me to monitor the Senate floor, and occasionally ESPN on those rare occasions when the Senate is not in session. My amendment makes it clear that this legislation does not require that such transformations, which are part of the normal conversion process rather than affirmative attempts to remove or circumvent copy control technologies, fall within the proscriptions of chapter 12 of the copyright law as added by this bill. (Congressional record, 14 May 1998, pp. S4890-S4891). In this example, Sen. Ashcroft cites a device which actually bypasses a technical protection measure as not actionable circumvention under the law, because the end effect is not to provide a work to an unauthorized person. (The amendment to which Ashcroft refers was codified as 1201(c)(3)). In these quotes and others, Congress was expressing a clear intent that the DMCA not be used as a club for copyright owners to dictate how products like computers, programs, and DVD players could be designed -- an intent that was echoed in the House debate (by Klug and others), and carries straight through to the Conference Committee report: Persons may also choose to implement a technological measure without vetting it through an inter-industry consultative process, or without regard to the input of affected parties. (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 fact, they go on to stress that such reimplementations are allowed to suppress incidental effects, if that's needed for usability: Under such circumstances, such a technological measure may materially degrade or otherwise cause recurring appreciable adverse effects on the authorized performance or display of works. Steps taken by the makers or servicers of consumer electronics, telecommunications or computing products used for such authorized performances or displays solely to mitigate these adverse effects on product performance (whether or not taken in combination with other lawful product modifications) shall not be deemed a violation of sections 1201(a) or (b). (Congressional Record (House), 8 Oct. 1998, p. H10065) This makes plain that the only protection afforded under 1201 is against products which perform circumvention per se -- for 1201(a), that would be actually allowing unauthorized access -- and not for whatever incidental effects an access control mechanism might have or perform. Other Congressmen made similar remarks, and some were even more emphatic than the ones I've quoted so far. Here's Sen. Kohl, speaking before the floor vote on the Conference Committee's final bill: [1201(c)(3)] reflected my belief that product manufacturers should remain free to design and produce the best, most advanced consumer electronics, telecommunications, and computing products without the threat of incurring liability for their design decisions. Creative engineers-not risk-averse lawyers-should be principally responsible for product design. (Congressional Record (Senate), 8 Oct. 1998, p. S11888) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 12:42:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01264 for dvd-discuss-outgoing; Tue, 12 Sep 2000 12:42:43 -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 MAA01125 for ; Tue, 12 Sep 2000 12:42:17 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id MAA10481 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 12:44:39 -0400 Date: Tue, 12 Sep 2000 12:44:34 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] new DeCSS tool Message-ID: <20000912124434.F9888@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Dave_Kroll@cargill.com on Tue, Sep 12, 2000 at 07:55:30AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 07:55:30AM -0500, Kroll, Dave wrote: >... > Wow! I just had a flashback to the last scene of > (The movie, at least. Don't remember how the > novel ends.) _Fahrenheit 451_. All of the > resistance members shuffled around, reciting and > memorizing "their" novel for the day when books > could again be published. > > How sad. This happened in real life: a classics professor was sent to a concentration camp in WWII--inmates could come up to him and "read" their choice of "Antigone," the "Apology," etc., since he had memorized them so well, and there were no books there. I think Ray Bradbury was aware of this when he wrote the book. It wasn't so much that reading books constituted resistance, it was that the books mattered, they were the only comfort left in life--it made people happy, not sad. Now, as far as the book F451 goes, it is not widely appreciated that it was subsequently censored without the author's knowledge, by the publisher, who put out an edition meant for schools. I think a web site is still available that shows students how to restore the excised language, and Bradbury in recent editions comments on this matter. Both that incident, and the whole book and movie go to show that private censorship, even in a full democracy, is just as dangerous as government censorship. Technology matters. In the world of F451 it is television that has become popular--books "make people unhappy." If the media giants have their way, and manage to assume ownership of what is left of our public domain, then we face a world just as scary--books will turn into pay-per-view events and there will be no public commons upon which to stage political debates. But it won't be a "resistance" any longer--the "bookpeople" didn't resist, they had to go underground and preserve the culture by dropping out of the mass consumer society. Who knows what will happen with us, the new "bookpeople"? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 13:03:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02207 for dvd-discuss-outgoing; Tue, 12 Sep 2000 13:03:17 -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 NAA02203 for ; Tue, 12 Sep 2000 13:03:13 -0400 Received: from travel-net.com (trj94.travel-net.com [207.176.160.94]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id NAA19632 for ; Tue, 12 Sep 2000 13:05:07 -0400 Message-ID: <39BE60B7.2FAF0CF2@travel-net.com> Date: Tue, 12 Sep 2000 12:58:31 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@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: > Eric Eldred writes: > > > I'd really like to see Robert contribute some of his excellent > > argument about authority to back this up, and to go beyond it > > to his whole argument of bogosity of control. It's definitely > > something that the technical people in this group can fairly > > and forcefully state. > > Hmmm.... I don't normally write from outlines, but I'll give it a > whirl. The focus here is just on refuting Kaplan; both the finding > that DeCSS circumvents, and that it has no significant legitimate > commercial purpose. > > NB this is a more detailed outline than some others, at least under > I), but there's still several pages of text here: > > I) Authority adheres to persons, not devices > A) Kaplan and the plaintiffs argue that DeCSS is an unauthorized *device* > 1) Licensed-CSS and DeCSS provide access in the same way in the > same circumstances > 2) No person can gain access to a work through DeCSS which > licensed-CSS would not provide > 3) "Authority of the copyright owner" in 1201(a)(3) is being > interpreted as the authority over production of a device, > not authority to grant access to a specific person. > B) "Authorized device" interpretation is inconsistent with the law > 1) 1201(c)(3) > C) "Authorized device" interpretation is facially unconstitutional > 1) Patent-like rights with no time limit (vs. "for limited times") > 2) Rights to an invention granted to authors. > D) "Authorized device" interpretation is inconsistent with > documented Congressional intent > 1) "Authorized person" in Judiciary section-by-section analysis > 2) "... without consulting other interested parties" in > conference committee report > 3) Effectively grants statutory protection to use controls, > *specifically* denied by Congress > 4) ?Sony speeches? > 5) ?"Authorized person" in the cable statute definitions, cited as a > parallel in the Judiciary section-by-section analysis? > E) Other arguments advanced for "authorized device" interpretation are > groundless > 1) Plaintiffs' "encryption, therefore access control" fails > a) Text of statute: no reference to crypto in (a)(3)(B), > "decrypts or ..." just about anything else in (A). > b) Judiciary section-by-section analysis confirms that there > is no statutory definition of particular protected technologies > 2) Kaplan's "requires a player key, no other lawful way to get it, > therefore an access control" > a) Reverse-engineering is a lawful way of getting a player key; > confirmed in Sega v. Accolade, as cited in Judiciary analysis > b) This simply means that access is provided if CSS is > functioning normally; by that standard, a power cord is an > access control. > > II) Defendants had legitimate purposes > A) Legitimate purposes for building a non-licensed player: > 1) Bypassing region coding, whose sole purpose is restraint of trade > 2) Bypassing use controls, e.g., no hi-res digital output (for HDTV) > B) On defendants' uncontested testimony, they were trying to build a > player > C) Kaplan ignored that based on hearsay and speculation from > plaintiffs' witnesses --- abuse of discretion. > > III) Effects of "authorized device" interpretation > A) Imposition of use controls > B) Distortion of player market > C) Overruling Universal v. Sony, U.S. v. Paramount, etc. Ok, distilling down we appear to have a 3-pronged argument in an amicus brief at the appellate level: I Authority adheres to persons, not devices II Defendants had legitimate purposes II Effects of "authorized device" interpretation If the focus is on refuting Kaplan, both on the finding the DeCSS circumvents and on the finding that there was no significant legitimate purpose, I think that we may risk going down the road here. Its very easy to confuse law and facts, and we have to be focused on errors in law. I think it would be very easy, given the above outline, to slip into too many 'facts'. Unlike the famous TV show, we dont want ' just the facts'. Specifically how do we go down the road in (II) without stumbling all over those pesky facts? Don;t get me wrong. I'm not objecting to anything (yet). I'm just concerned about how to get to the desired result. -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 13:20:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03136 for dvd-discuss-outgoing; Tue, 12 Sep 2000 13:20:43 -0400 Received: from chmls19.mediaone.net (chmls19.mediaone.net [24.147.1.154]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA03133 for ; Tue, 12 Sep 2000 13:20:42 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls19.mediaone.net (8.10.1/8.10.1) with ESMTP id e8CHMqm22952; Tue, 12 Sep 2000 13:22:52 -0400 (EDT) Message-ID: <39BE66BF.94E59115@mit.edu> Date: Tue, 12 Sep 2000 13:24:15 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg wrote: > Ok, distilling down we appear to have a 3-pronged argument in an amicus brief at > the appellate level: > I Authority adheres to persons, not devices > II Defendants had legitimate purposes > II Effects of "authorized device" interpretation > > If the focus is on refuting Kaplan, both on the finding the DeCSS circumvents and > on the finding that there was no significant legitimate purpose, I think that we > may risk going down the road here. Its very easy to confuse law and facts, and we > have to be focused on errors in law. I think it would be very easy, given the > above outline, to slip into too many 'facts'. Unlike the famous TV show, we dont > want ' just the facts'. > > Specifically how do we go down the road in (II) without stumbling all over those > pesky facts? > Don;t get me wrong. I'm not objecting to anything (yet). I'm just concerned about > how to get to the desired result. > Actually, it gets worse. The MPAA amended their complaint to include 1201 (a) and 1201 (b) violations, and Kaplan ruled in favor of them in both instances (this is why he can dance between copy control and access control in his opinion). I think we can make a strong case that Kaplan was legally mistaken when he ruled CSS is access control, but I don't know if we have the facts in the record to do the same for copy control. An argument I had in mind was: (but it seems to fact-dependant, do we at least have Kaplan shutting down lines of inquiry leading to these facts?) 1) Encryption cannot be copy control --- you can always copy the ciphertext. 2) Claim: CSS is copy control because, without DeCSS, copied movies cannot be played. 3) (2) is broken. The only reason "copied" movies cannot be played is that the equipment necessary to make good enough copies is not generally available. Hong Kong pirates copy DVDs all the time. Also, the reason copying equipment is not generally available is because the MPAA/DVD CCA has asked DVD manufacturers to restrict the appropriate equipment ('burned' key sectors on DVD-Rs), so a finding that CSS is copy control would contradict 1201(c)(3), since DVD-R disks and DVD-R burners are trivially not just circumvention devices (so why should they be _required_ to have special key sector frobbing?) - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 13:48:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03834 for dvd-discuss-outgoing; Tue, 12 Sep 2000 13:48:18 -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 NAA03831 for ; Tue, 12 Sep 2000 13:48:17 -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 NAA14513 for ; Tue, 12 Sep 2000 13:49:14 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA11866; Tue, 12 Sep 2000 13:49:14 -0400 (EDT) Date: Tue, 12 Sep 2000 13:49:14 -0400 (EDT) Message-Id: <200009121749.NAA11866@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39BE60B7.2FAF0CF2@travel-net.com> References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg writes: > Ok, distilling down we appear to have a 3-pronged argument in an > amicus brief at the appellate level: > > I Authority adheres to persons, not devices > II Defendants had legitimate purposes > [III] Effects of "authorized device" interpretation If the brief is based exclusively on the authority argument, that would be one way to structure it. It could also be a component of a larger brief, like the ones which Bryan has been outlining (in which case, some of the authority outline could be trimmed). Note also that there's no reason that the three prongs need to have equal weight --- most of the ammo is in (I), which covers points of law, with little (if any) reference to the specific facts of the case once the "authorized device" nature of Kaplan's interpretation is established. > Specifically how do we go down the road in (II) without stumbling > all over those pesky facts? Well, the point of including (II) is largely to demonstrate that Kaplan misstated the facts of the case in order to mischaracterize DeCSS as an illegitimate device, even though it was written for a completely legitimate purpose. I don't want to leave the impression that we're relying on technicalities to legitimate the sort of thing that Congress called a "black box". But that's ultimately less important than the legal points, and probably should get less weight. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 14:09:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04190 for dvd-discuss-outgoing; Tue, 12 Sep 2000 14:09:55 -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 OAA04187 for ; Tue, 12 Sep 2000 14:09:54 -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 OAA16978 for ; Tue, 12 Sep 2000 14:10:56 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA19755; Tue, 12 Sep 2000 14:10:55 -0400 (EDT) Date: Tue, 12 Sep 2000 14:10:55 -0400 (EDT) Message-Id: <200009121810.OAA19755@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39BE66BF.94E59115@mit.edu> References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> <39BE66BF.94E59115@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Actually, it gets worse. The MPAA amended their complaint to include > 1201 (a) and 1201 (b) violations, and Kaplan ruled in favor of them > in both instances (this is why he can dance between copy control and > access control in his opinion). I think we can make a strong case that > Kaplan was legally mistaken when he ruled CSS is access control, but > I don't know if we have the facts in the record to do the same for > copy control. Ummm... this may be rank stupidity, but where is the copy control finding? The only references I can find to 1201(b) in Kaplan's opinion are in the footnotes --- footnote 133 mentions that the plaintiffs "rely on" it, but includes no argument; the rest just note that various safe harbors apply only to 1201(a). (I know his final judgment includes the phrase "effectively protects ... rights", from 1201(b). However, it also enjoins distributing tools for circumventing "any ... technological measure adopted by plaintiffs", not just CSS. So, I don't read that to say or imply that CSS *itself* is a copy control; he could have been referring to some other unnamed technological measure, such as Macrovision, entirely distinct from CSS). In any case, the plaintiffs were clear about what sort of copying DeCSS is meant to control --- copying over the internet. And CSS itself does nothing to restrain that copying; that's done by mechanisms which are tied to it *only* by the license. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 14:16:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04397 for dvd-discuss-outgoing; Tue, 12 Sep 2000 14:16:52 -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 OAA04394 for ; Tue, 12 Sep 2000 14:16:49 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Tue, 12 Sep 2000 14:17:01 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Date: Tue, 12 Sep 2000 14:17:00 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Not just software, but this code could be adapted to reduce the development costs for DVD players in general. -----Original Message----- From: Steve Stearns [mailto:sterno@gemini.bigbrother.net] Sent: Tuesday, September 12, 2000 12:19 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief 4) Reducing barrier to entry for developers of DVD player software (should lead to increased competition and thus decreased costs to consumers) From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 14:42:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04794 for dvd-discuss-outgoing; Tue, 12 Sep 2000 14:42:13 -0400 Received: from chmls19.mediaone.net (chmls19.mediaone.net [24.147.1.154]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA04784 for ; Tue, 12 Sep 2000 14:42:11 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.217.121]) by chmls19.mediaone.net (8.10.1/8.10.1) with ESMTP id e8CIiLm18348; Tue, 12 Sep 2000 14:44:21 -0400 (EDT) Message-ID: <39BE79D8.F990DDF5@mit.edu> Date: Tue, 12 Sep 2000 14:45:44 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> <39BE66BF.94E59115@mit.edu> <200009121810.OAA19755@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: > > Actually, it gets worse. The MPAA amended their complaint to include > > 1201 (a) and 1201 (b) violations, and Kaplan ruled in favor of them > > in both instances (this is why he can dance between copy control and > > access control in his opinion). I think we can make a strong case that > > Kaplan was legally mistaken when he ruled CSS is access control, but > > I don't know if we have the facts in the record to do the same for > > copy control. > > Ummm... this may be rank stupidity, but where is the copy control > finding? The only references I can find to 1201(b) in Kaplan's > opinion are in the footnotes --- footnote 133 mentions that the > plaintiffs "rely on" it, but includes no argument; the rest just > note that various safe harbors apply only to 1201(a). I didn't find a place where Kaplan broke out a specific finding on copy control, but footnotes like footnote 154 [after finding defendants did not meet the requirements of 1201(g)] "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)." and footnote 157 "Like section 1201(g), moreover, Section 1201(j) provides no defense to a Section 1201(b) claim." only make sense to me if Kaplan had found that DeCSS violated 1201(b) as well as 1201(a)... Also, Kaplan's order (page 2) tells defendants to stop trafficking in anything that circumvents CSS, anything that "effectively controls accesS" or anything that "effectively protects that plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform, and/or distribute unauthorized copies..." (the second part comes from 1201(b), does it not?) - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 14:48:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05223 for dvd-discuss-outgoing; Tue, 12 Sep 2000 14:48:34 -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 OAA05220 for ; Tue, 12 Sep 2000 14:48:33 -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 OAA07921; Tue, 12 Sep 2000 14:49:34 -0400 (EDT) Message-ID: <39BE7B56.83DCC6C1@mit.edu> Date: Tue, 12 Sep 2000 14:52:06 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> <39BE66BF.94E59115@mit.edu> <200009121810.OAA19755@soggy-fibers.ai.mit.edu> <39BE79D8.F990DDF5@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: > > "Robert S. Thau" wrote: > > > > Ravi Nanavati writes: > > > Actually, it gets worse. The MPAA amended their complaint to include > > > 1201 (a) and 1201 (b) violations, and Kaplan ruled in favor of them > > > in both instances (this is why he can dance between copy control and > > > access control in his opinion). I think we can make a strong case that > > > Kaplan was legally mistaken when he ruled CSS is access control, but > > > I don't know if we have the facts in the record to do the same for > > > copy control. > > > > Ummm... this may be rank stupidity, but where is the copy control > > finding? The only references I can find to 1201(b) in Kaplan's > > opinion are in the footnotes --- footnote 133 mentions that the > > plaintiffs "rely on" it, but includes no argument; the rest just > > note that various safe harbors apply only to 1201(a). > > I didn't find a place where Kaplan broke out a specific finding > on copy control, but footnotes like footnote 154 > [after finding defendants did not meet the requirements of 1201(g)] > "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)." > and footnote 157 > "Like section 1201(g), moreover, Section 1201(j) provides no defense > to a Section 1201(b) claim." > > only make sense to me if Kaplan had found that DeCSS violated > 1201(b) as well as 1201(a)... Also, Kaplan's order (page 2) > tells defendants to stop trafficking in anything that circumvents > CSS, anything that "effectively controls accesS" or anything > that "effectively protects that plaintiffs' rights to control > whether an end user can reproduce, manufacture, adapt, publicly > perform, and/or distribute unauthorized copies..." > (the second part comes from 1201(b), does it not?) > > - Ravi Nanavati Skip this. For reasons I can't explain, I only read half your email before replying to it... - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 15:17:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05635 for dvd-discuss-outgoing; Tue, 12 Sep 2000 15:17:36 -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 PAA05632 for ; Tue, 12 Sep 2000 15:17:34 -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 PAA11557 for ; Tue, 12 Sep 2000 15:13:26 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000912161952.21892.qmail@web515.mail.yahoo.com> References: <20000912161952.21892.qmail@web515.mail.yahoo.com> Date: Tue, 12 Sep 2000 15:13:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 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 9:19 AM -0700 9/12/2000, Bryan Taylor wrote: > > >> > 7) 1201(g)(3)(A) favoring research when "information ... was >> > disseminated" is content-based >> This should read "compelled speech," not "content-based." > >I guess that's true. Which precedent is it that says that compelled >speech is a no-no? > > I think there is an additional argument that DMCA is hopelessly vague since it gives no clear guidelines to distinguish between "dissemination" (which is good) and "providing" (which is proscribed). If such guidelines were provided, either by the Congress or the Courts, they would have to be content based. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 15:29:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05935 for dvd-discuss-outgoing; Tue, 12 Sep 2000 15:29:56 -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 PAA05932 for ; Tue, 12 Sep 2000 15:29:50 -0400 Message-ID: <20000912193021.12835.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 12 Sep 2000 12:30:21 PDT Date: Tue, 12 Sep 2000 12:30:21 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The quotes that you've given seem to blow Kaplan's "DVD-CCA licence is the only way" stuff out of the water. The only obstacle is that (c)(3) only protects you as long as you don't violate 1201(a) or (b). IIRC, the LiViD OMS player doesn't allow harddrive based storage of the unencrypted vob files. I would think that this program should qualify for (c)(3) protection. The real message here is that just because you've invented a TPM, you don't get the power to force it on other designers. It would seem to say that you can build rival players, as long as they don't provide users with access to copyrighted elements that aren't otherwise available. --- "Robert S. Thau" wrote: > Bryan Taylor writes: > > Hmmm. Does the legislative history provide any juicy quotes > explaining > > why (c)(3) was enacted. On it's face, I don't think it helps us, > but > > the *reasoning* behind it might be extremely valuable. > > From the legislative history section of the "authority" paper: > > But, might it change things if a player manufactured without the > cooperation of the copyright holders exposed their works to the > possibility of unauthorized duplication? The answer, as clearly > envisioned by Congress, is no; they even amended the law to try to > preclude such an interpretation. Sen. Ashcroft, again, in the > immediate > continuation of the speech quoted above: > > Another important amendment was added that makes clear > that this law does not mandate any particular selection of > components for the design of any technology. I was > concerned that this legislation could be interpreted as a > mandate on product manufacturers to design products so > as to respond affirmatively to effective technical protection > measures available in the marketplace. In response to this > concern I was pleased to offer an amendment, with the > support of both the Chairman and the Ranking Member of > the Committee, to avoid the unintended effect of having > design requirements imposed on product and component > manufacturers, which would have a dampening effect on > innovation, and on the research and development of new > products. Accordingly, my amendment clarified that product > designers need not design consumer electronics, > telecommunications, or computing products, nor design and > select parts or components for such products, in order to > respond to particular technological protection measures. > > This amendment reflects my belief that product > manufacturers should remain free to design and produce > consumer electronics, telecommunications and computing > products without the threat of incurring liability for their > design decisions under this legislation. Nothing could cause > greater disaster and a swifter downfall of our vibrant > technology sector than to have the federal government > dictating the design of computer chips or mother boards. By > way of example, during the course of our deliberations, we > were made aware of certain video boards used in personal > computers in order to allow consumers to receive television > signals on their computer monitors which, in order to > transform the television signal from a TV signal to one > capable of display on a computer monitor, remove attributes > of the original signal that may be associated with certain > copy control technologies. I am acutely aware of this > particular example because I have one of these video > boards on my own computer back in my office. It is quite > useful as it allows me to monitor the Senate floor, and > occasionally ESPN on those rare occasions when the > Senate is not in session. My amendment makes it clear that > this legislation does not require that such transformations, > which are part of the normal conversion process rather than > affirmative attempts to remove or circumvent copy control > technologies, fall within the proscriptions of chapter 12 of the > copyright law as added by this bill. > > (Congressional record, 14 May 1998, pp. S4890-S4891). > > In this example, Sen. Ashcroft cites a device which actually bypasses > a > technical protection measure as not actionable circumvention under > the > law, because the end effect is not to provide a work to an > unauthorized > person. (The amendment to which Ashcroft refers was codified as > 1201(c)(3)). > > In these quotes and others, Congress was expressing a clear intent > that > the DMCA not be used as a club for copyright owners to dictate how > products like computers, programs, and DVD players could be designed > -- an intent that was echoed in the House debate (by Klug and > others), > and carries straight through to the Conference Committee report: > > Persons may also choose to implement a technological > measure without vetting it through an inter-industry > consultative process, or without regard to the input of > affected parties. > > (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 > fact, > they go on to stress that such reimplementations are allowed to > suppress incidental effects, if that's needed for usability: > > Under such circumstances, such a technological measure > may materially degrade or otherwise cause recurring > appreciable adverse effects on the authorized performance > or display of works. Steps taken by the makers or servicers > of consumer electronics, telecommunications or computing > products used for such authorized performances or displays > solely to mitigate these adverse effects on product > performance (whether or not taken in combination with other > lawful product modifications) shall not be deemed a violation > of sections 1201(a) or (b). > > (Congressional Record (House), 8 Oct. 1998, p. H10065) > > This makes plain that the only protection afforded under 1201 is > against > products which perform circumvention per se -- for 1201(a), that > would > be actually allowing unauthorized access -- and not for whatever > incidental effects an access control mechanism might have or perform. > Other Congressmen made similar remarks, and some were even more > emphatic than the ones I've quoted so far. Here's Sen. Kohl, speaking > before the floor vote on the Conference Committee's final bill: > > [1201(c)(3)] reflected my belief that product manufacturers > should remain free to design and produce the best, most > advanced consumer electronics, telecommunications, and > computing products without the threat of incurring liability for > their design decisions. Creative engineers-not risk-averse > lawyers-should be principally responsible for product > design. > > (Congressional Record (Senate), 8 Oct. 1998, p. S11888) > __________________________________________________ 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 Sep 12 15:56:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06312 for dvd-discuss-outgoing; Tue, 12 Sep 2000 15:56:48 -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 PAA06309 for ; Tue, 12 Sep 2000 15:56:45 -0400 Message-ID: <20000912195716.17601.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 12 Sep 2000 12:57:16 PDT Date: Tue, 12 Sep 2000 12:57:16 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 --- Dan Steinberg wrote: > > II) Defendants had legitimate purposes > Specifically how do we go down the road in (II) without stumbling all > over those pesky facts? Don;t get me wrong. I'm not objecting to > anything (yet). I'm just concerned about how to get to the > desired result. If I understand civil procedure correctly, we can't introduce new evidence into the record. We can, however, challenge Kaplan's findings of fact when they are entirely unsupported by the record of admissible evidence. I think that the judge gets to decide which piece of evidence he weights the most, but he cannot base findings of fact on facts not properly admitted into evidence (this is an abuse of his discretion). In order to make this point we have to say "The evidence says A,B,C. Kaplan found X. Kaplan abused his discretion, since none of A,B,C supports X." If Kaplan relied on D to support X, but D is inadmissible, this is also grounds for challenging X. __________________________________________________ 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 Sep 12 16:02:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06475 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:02:28 -0400 Received: from web511.mail.yahoo.com (web511.mail.yahoo.com [216.115.104.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA06472 for ; Tue, 12 Sep 2000 16:02:23 -0400 Message-ID: <20000912200255.13770.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Tue, 12 Sep 2000 13:02:55 PDT Date: Tue, 12 Sep 2000 13:02:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 Plaintiffs filed a complaint in this case. If it doesn't claim 1201(b) cause of action (I believe it doesn't), then there is none, Kaplan's dicta not-with-standing. I would hope that civil procedure is not so screwed up as to allow a judge to spontaneously create causes of actions that the plaintiffs themselves don't allege. That would be a violation of due process of law, would it not? --- Ravi Nanavati wrote: > I didn't find a place where Kaplan broke out a specific finding > on copy control, but footnotes like footnote 154 > [after finding defendants did not meet the requirements of 1201(g)] > "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)." > and footnote 157 > "Like section 1201(g), moreover, Section 1201(j) provides no defense > to a Section 1201(b) claim." > > only make sense to me if Kaplan had found that DeCSS violated > 1201(b) as well as 1201(a)... Also, Kaplan's order (page 2) > tells defendants to stop trafficking in anything that circumvents > CSS, anything that "effectively controls accesS" or anything > that "effectively protects that plaintiffs' rights to control > whether an end user can reproduce, manufacture, adapt, publicly > perform, and/or distribute unauthorized copies..." > (the second part comes from 1201(b), does it not?) > > - Ravi Nanavati __________________________________________________ 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 Sep 12 16:06:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06619 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:06:35 -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 QAA06616 for ; Tue, 12 Sep 2000 16:06:35 -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 QAA02254 for ; Tue, 12 Sep 2000 16:07:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA00996; Tue, 12 Sep 2000 16:07:32 -0400 (EDT) Date: Tue, 12 Sep 2000 16:07:32 -0400 (EDT) Message-Id: <200009122007.QAA00996@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39BE7B56.83DCC6C1@mit.edu> References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> <39BE66BF.94E59115@mit.edu> <200009121810.OAA19755@soggy-fibers.ai.mit.edu> <39BE79D8.F990DDF5@mit.edu> <39BE7B56.83DCC6C1@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Skip this. For reasons I can't explain, I only read half your > email before replying to it... I've done a lot of that myself... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 16:15:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06855 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:15:32 -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 QAA06850 for ; Tue, 12 Sep 2000 16:15:20 -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 QAA03716 for ; Tue, 12 Sep 2000 16:16:21 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA04194; Tue, 12 Sep 2000 16:16:20 -0400 (EDT) Date: Tue, 12 Sep 2000 16:16:20 -0400 (EDT) Message-Id: <200009122016.QAA04194@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 2nd Circuit amicus brief outline 2 In-Reply-To: <20000912193021.12835.qmail@web515.mail.yahoo.com> References: <20000912193021.12835.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: > The quotes that you've given seem to blow Kaplan's "DVD-CCA licence is > the only way" stuff out of the water. Really? It wasn't meant to specifically address the point about the DVDCCA license at all --- that's addressed in my outline (and the earlier sketch of the argument at http://eon.law.harvard.edu/archive/dvd-discuss/msg07722.html which matches the outline in part) by mentioning relevant precedents which cite reverse engineering as another perfectly legal way to get at a player key. (The case cited is specifically noted in the Judiciary Analysis as standing law that Congress meant to preserve, so Kaplan can't very well argue that the DMCA overruled it). > The only obstacle is that (c)(3) > only protects you as long as you don't violate 1201(a) or (b). IIRC, > the LiViD OMS player doesn't allow harddrive based storage of the > unencrypted vob files. I would think that this program should qualify > for (c)(3) protection. Well, sure. But the way you've phrased it implies that storing to disk *would* circumvent some technical mechanism, and I'm not sure what that technical mechanism is. The reason licensed players have no such function is because of the CSS *license agreement*, not because of any action of CSS itself, as a technical measure (nor because of the action of any other technical measure). And it's the right of copyright owners to impose that license agreement in the first place that we're arguing against. > The real message here is that just because you've invented a TPM, you > don't get the power to force it on other designers. It would seem to > say that you can build rival players, as long as they don't provide > users with access to copyrighted elements that aren't otherwise > available. In other words, the "authorized device" interpretation is bogus. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 16:19:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07015 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:19:56 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA07011 for ; Tue, 12 Sep 2000 16:19:52 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id QAA01028 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 16:20:52 -0400 (EDT) Date: Tue, 12 Sep 2000 16:20:52 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000912162052.A29649@ils.unc.edu> References: <20000908230354.A10209@lemuria.org> <20000909013703.C151@ils.unc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i In-Reply-To: <20000909013703.C151@ils.unc.edu>; from gbnewby@ils.unc.edu on Sat, Sep 09, 2000 at 01:37:04AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I found out today that the email letter did, indeeed, come from the MPAA. Or, it certainly looks that way. The network security manager for UNC-CH, Jeanne Smythe, verified the MPAA's phone number via their Web page and directory assistance, and called the switchboard. Eventually, she spoke to a real person who confirmed that the MPAA was the sender of the email. She told me that the MPAA had divided their complaint letters alphabetically with different people to "handle" different places - she spoke with someone [name unknown] who was responsible for handling the letter that went to UNC-CH. I didn't get more details than that, but this is good enough, I think, confirm the legitimacy of the letter. It would be nice to know more (such as, who or what division sent the letter, on whose authority, etc.), but I don't think Jeanne pressed for any such details. Jeanne is extremely competent, and made the call at the request of UNC-CH's legal counsel (after my suggestion), so I have confidence that what she found out is the real deal. Of course, people on this list would like more details that I didn't get, but hopefully this finding is of interest. -- Greg On Sat, Sep 09, 2000 at 01:37:04AM -0400, Greg Newby wrote: > On Fri, Sep 08, 2000 at 11:03:54PM +0200, Tom Vogt wrote: > > > > some details on the mpaa23 sender. > > Thanks for all the interesting tidbits. > > > I'll see what other stuff I can dig up. what about the guy who asked > > his .edu to call them by phone? did they do so? what was the reply? > > I am that guy. I have not heard back yet (though I did hear I'm > on the campus tech mgmt's sh*tlist for causing a ruckus). > > Unofficial word came via my boss (the Dean) that the campus powers > that be were not going to attend to the MPAA's wishes & censor > my class Web pages. I was supposed to get an official memo this > week, but never did. > > If I don't hear by mid-next week I will call the MPAA myself. > I'll post any outcomes to the list, never fear. > -- Greg // Gregory B. Newby, Assistant Professor in the School of Information // and Library Science, University of North Carolina at Chapel Hill // CB# 3360 Manning Hall, Chapel Hill, NC, 27599-3360 E: gbnewby@ils.unc.edu // V: 919-962-8064 F: 919-962-8071 W: http://www.ils.unc.edu/gbnewby/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 16:25:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07202 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:25:04 -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 QAA07199 for ; Tue, 12 Sep 2000 16:25:01 -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 QAA04783 for ; Tue, 12 Sep 2000 16:26:03 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA07721; Tue, 12 Sep 2000 16:26:03 -0400 (EDT) Date: Tue, 12 Sep 2000 16:26:03 -0400 (EDT) Message-Id: <200009122026.QAA07721@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000912195716.17601.qmail@web515.mail.yahoo.com> References: <20000912195716.17601.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: > In order to make this point we have to say "The evidence says A,B,C. > Kaplan found X. Kaplan abused his discretion, since none of A,B,C > supports X." If Kaplan relied on D to support X, but D is inadmissible, > this is also grounds for challenging X. (II) from my outline is in part an attempt at that sort of argument, based on http://eon.law.harvard.edu/archive/dvd-discuss/msg07221.html Only in part though --- it's really not adding new evidence, just arguing that Kaplan weighed the evidence available to him wrongly (and he did at least acknowledge that DeCSS *could* be used to make a player, I believe). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 16:26:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07291 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:26:55 -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 QAA07286 for ; Tue, 12 Sep 2000 16:26:49 -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 QAA04269; Tue, 12 Sep 2000 16:27:33 -0400 (EDT) Message-ID: <39BE924D.FE15B703@mit.edu> Date: Tue, 12 Sep 2000 16:30:05 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief References: <20000912200255.13770.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: > > Plaintiffs filed a complaint in this case. If it doesn't claim 1201(b) > cause of action (I believe it doesn't), then there is none, Kaplan's > dicta not-with-standing. I would hope that civil procedure is not so > screwed up as to allow a judge to spontaneously create causes of > actions that the plaintiffs themselves don't allege. That would be a > violation of due process of law, would it not? Look at the (amended) complaint on the openlaw site: http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0126-am-complaint.html They clearly allege the basis of a 1201(b) claim (control of exclusive rights) and, in paragraph 31, claim defendants are violating section 1201 (not just 1201(a), as they cited earlier), which includes 1201(b). I agree they don't highlight the 1201(b) claim, but it appears to be there (unless there are rules about exactly how specific they need and section 1201 isn't specific enough, which would be a great relief). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 16:29:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07500 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:29:43 -0400 Received: from web510.mail.yahoo.com (web510.mail.yahoo.com [216.115.104.225]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA07497 for ; Tue, 12 Sep 2000 16:29:42 -0400 Message-ID: <20000912203011.13842.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Tue, 12 Sep 2000 13:30:11 PDT Date: Tue, 12 Sep 2000 13:30:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] new DeCSS tool To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 the media giants have their > way, and manage to assume ownership of what is left > of our public domain, then we face a world just as > scary--books will turn into pay-per-view events and > there will be no public commons upon which to stage > political debates. But it won't be a "resistance" > any longer--the "bookpeople" didn't resist, they > had to go underground and preserve the culture by > dropping out of the mass consumer society. Who knows > what will happen with us, the new "bookpeople"? I think if the big publishers get their way, several things will happen. First, the minority of people who think that copyright has lost legitimacy will grow -- there will be more DivX movies posted on the internet, more open defiance, etc... . It will become "cool" in some circles to only watch pirated movies etc... Several dozen, maybe a hundred people will go to jail, while growing millions openly mock the MPAA, and perhaps the Courts. Second, the majority of people who think copyright should exist, but not with the draconian control to the copyright industry will become more organized and vocal. It will become a political issue. The ranks of open source projects will grow. Artists who are "MP3 friendly" will be consciously preferred and will displace artists who offer less enjoyment value to the consumer. Small film-makers will have hits that spread like a disease over the internet. Open art will become fashionable. Someone will invent a web-site for funding/tipping underground artists by keeping track of who donated and when. As the quality of free art grows, supply and demand will correct the price inequities. Amazing things will happen in exciting new places while the "copyright industry" slowly loses it's developer mind-share. __________________________________________________ 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 Sep 12 16:44:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA07809 for dvd-discuss-outgoing; Tue, 12 Sep 2000 16:44:49 -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 QAA07806 for ; Tue, 12 Sep 2000 16:44:48 -0400 Received: from 216-164-138-67.s67.tnt5.lnhva.md.dialup.rcn.com ([216.164.138.67]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13Yww4-00025H-00 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 16:45:44 -0400 Date: Tue, 12 Sep 2000 16:44:39 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Partial text version of Judiciary Comitee report 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 The following are the first 10 pages of the Judiciary Comitte report, ocred, and partially edited. (The other 15 pages will follow, but I've got a bit of a typing cramp from correcting the myriad errors produced by gocr...) SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY TME UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4,1998 SUMMARY MR. SPEAKER; The following is a section-by-section discussion and analysis of H.R. 2281, the ''Digital Millennium Copyright Act,'' as passed by the House of Representatives on August 4, 1998, under suspension of the Rules. I introduced H.R. 2281 on July 29, 1997, along with Representa- tives Henry Hyde, Chairman of the Committee on the Judiciary, John Conyers, Ranking Democratic Member of the Committee, and Barney Frank, Ranking Democratic Member of the Subcommittee on Courts and Intellectual Property. The bill was referred to the Committee on the Judiciary, and subsequently, to the Subcommit- tee on Courts and Intellectual Property. The Subcommittee on Courts and Intellectual Property held two days of hearings on this legislation on September 16 and 17, 1997 (Serial #33). Testimony was received from over 25 witnesses. The Subcommittee conducted a markup of H.R. 2281 on February 26, 1998, and the Committee on the Judiciary ordered to be reported the bill, as amended, on April 1, 1998. The bill was reported on May 22, 1998 (Report #105-551, part I). The Committees on Com- merce and Ways and Means each requested a sequentlal referral on portions of the bill over which they possessed jurisdiction con- current with that of the Committee on the Judiciary, and both Committees were granted a sequential referral on those portions on May 22, 1998. The Committee on Commerce ordered to be reported the bill, as amended, on July 17, 1998. The bill was reported by the Committee on Commerce on July 22, 1998 (Report #105-551, part II). The Committee on Ways and Means did not conduct a markup or order the bill to be reported pursuant to an agreement memorialized In an exchange of letters between Chairman Archer and Chairman Hyde, to exclude language objectionable to the Com- mittee on Ways and Means contained in the bill as reported by the Committee on the _udiciary, by means of a Managers Amendment to the bill considered under suspension of the Rules on August 4, 1998. Those letters have been made part of the record. The Manager's Amendment considered and passed by the House on August 4, 1998, contained provisions agreed upon by the Com- mittees on the Judiciary, Commerce, and Ways and Means, other provisions which have already been considered and passed by the House under suspension of the Rules, and technical, clarifying and other provisions. As Manager and author of the bill and author of the amendment which passed the House, I am placing into the (1) @ 2 record today, pursuant to leave granted by unanimous consent on August 4, 1998, a section-by-section analysis of the Manager's Amendment to explain thoroughly the intent of the provisions con- tained therein. While some of the provisions of H.R. 2281 as it was passed by the House reflect substantial changes to the bill as E introduced it last year, and as it was reported this spring from the Committee on the _udiciary, others have not been changed at all. These un- changed provisions include the key operative provisions that define prohibited acts of manufacturing, importing, distributing, or other- wise tra_icking in circumvention services or tools; section 1201(a) (2) and (3), and section 1201(b), of the new Chapter 12 of Title 17. Thus, as to these provisions, the authoritative legislative history is to be found in the report of the Judiciary Committee, since the se- quential Committees did not change any of these provisions as they had already been authoritatively interpreted in the _udiciary Com- mittee report. However, because varying interpretations of these provisions have been offered by some parties, I will take this oppor- tunity to clarify the intent of these provisions which initially ap- peared in my bill as introduced, and which emerged basically un- changed from the Judiciary Committee consideration of the bill. Mr. Speaker, this bill protects property rights in the digital world. The digital environment now allows users of electronic media to send and retrieve perfect reproductions easily and nearly instantaneously, to or from locations around the world. With this evolution in technology, the law must adapt in order to make digi- tal networks safe places to disseminate and exploit material in which American citizens have rights in an unregulated and bene- ficial environment. This is especially important to small businesses and independent creators who will be able to use this new medium to benefit economically from a new international distribution sys- tem without many outside costs. I congratulate the House on this major achievement for our econ- omy and look forward to a productive conference with the other body, and the eventual passage into law of this very important leg- islation. MANAGER'S AMENDMENT SECTION-BY-SECTION ANALYSIS Section 1 This section provides a short title for this Act. It may be cited as the ''Digital Millennium Copyright Act.'' Section 2 This section provides a table of contents indicating the titles and sections contained in this Act. TITLE I-WIPO COPYRIGHT TREATIES IMPLEMENTATION Section 101: Short Title This section provides that this title may be cited as the ''WIPO Copyright Treaties Implementation Act.'' (3) Section 102: Technical Amendments Summary To comply with the obligations of the WIPO Treaties, several _ technical amendments to the U.S. Copyright Act are necessary. _ These amendments are needed to ensure that works from countries that join the two new WIPO Treaties, including works in existence on the date each treaty becomes effective for the Unlted States, will be protected in the United States on a formality-free basis, as re- quired by the provisions of each treaty. Three Sections of the Copy- right Act require amendment: ( 1) section 104, which specifies the conditions on which works from other countries are protected in the United States; (2) section 104A, which restores protection to certain preexisting works from other countries that have fallen into the @ public domain in the Unlted States, and (3) Section 411(a), which makes copyright registration a precondition to bringing suit for in- fringement for some works. In addition , the amendments made to these sections require some additions to, and changes in, the defini- tion section of the Copyright Act, section 101. Changes to Section 101: Definitions. The bill amends section 101 to defne ''treaty party'' as ''any country or Intergovernmental Organization that is a party to an international agreement and to deflne International agreement to include, inter alia, the two new WIPO Treaties. Definitions of the two new WIPO Treaties are also provided. In addition, a defini- tion of ''United States work'' was added for purposes of amended section 411. Changes to Section 104: Subject Matter of Cnp_right: l Na- tional Origin. Existing section 104 identifies the criteria that must be met for a work to qualify fOr protection under the U.S. Copyright law (i.e., points of attachment ). Among those protected under Section 104 _ are nationals or domicillaries of those countries with which we have an appropriate Treaty relationship. Section 104, as it is pres- ently written, explicitly identifies those treaty relationships, but _ does not refer to the two new WIPO treaties. Therefore, Sectlon L 104 needs to be amended to provide for points of attachment for the two new WTPO Treaties. This bill amends section 104 so that all countries that have copy- right relations with the United States would be referred to collec- tively by the term ''treaty parties.'' This change, in conjunction with the amendments to Section 101, which define treaty party and _ ''international agreement,'' serves to ensure that the two new WIPO Treatles are covered by Section 104. The blll alSO amends section 104 to extend protection to foreign works from any treaty party based On four points of attachment: nationallty Of the author, place of flrst publication of the work, place of fixation of the sounds _ embodied in a sound recording, and the situs Of a constructed achitectural work. The way section 104 is presently written requires that it be amended each tlme U.S. treaty membership Changes. By defining ''treaty party'' in section 101 and amending section 104 to refer to @4 3 ''treaty party,'' future changes in the treaties to which the U.S. is a party would not require changes to section 104. It is much clearer and less unwieldy to have a single set of criteria for eligibility in section 104 as proposed by this bill, rather than multiple, overlap- ping criteria in a long list of complex definitions in section 101. If we join any future treaties, they can simply be added to the list of ''international agreements'' without any detailed amendments re- peating the criteria for eligibility. The amendment to section 104 also makes clear that membership in the Geneva Phonograms Con- vention and the WIPO Performances and Phonograms Treaty pro- vides national eligibility for sound recordings only, not other types of works. Changes to Section 104A; Copyright in Restored Works. The bill amends subsection (h) of section 104A by adding the two new WIPO Treaties to the definitions of ''date of adherence or proc- lamation'' and ''eligible country.'' It would also add a paragraph to the definition of ''restored work'' to ensure that copyrighted works other than sound recordings do n_ot qualify as restored works where the sole basis for protection in the United States is adherence to the WIPO Performances and Phonograms Treaty. Changes to Section 4ll(a): Registrotion and Infiingement Ac- tions. In its current form, section 411(a) requires works to be registered with the Copyright Office before suit can be brought for their in- fringement, but exempts Berne Convention works whose country of origin is not the United States. The section must be amended to exempt works from members of the two new WIPO Treaties. Amendments to section 411(a) reframe the registration require- ment in the affirmative--essentially the converse of the current section. In other words, the provision would state affirmatively that ''United States works'' must be registered before suit, with ''United States works'' defined as the converse of the current definition of works whose country of origin is not the United States. Similar to the changes in section 104, this section could be easily updated each time the United States joins another treaty, without the need to change several interrplated provisions of the Act. Change to Section 507(a) Currently, section 507(a) provides for a three-year staiute of limi- tations period for all criminal copyright actions. Section 507(a) is amended to recognize exceptions tD the three-year limitations pe- riod if expressly provided elsewhere in Title 17. New chapter 12 of Title 17 proovides for a five-year criminal limitation period. Section 103: Copyright Protection and Management SJstems. Summary The two new WIPO Treaties include substantively identical pro- visions on technological measures of protection (also commonly re- ferred to as the ''black box'' or ''anticircumvention'' provisions). These provisions require contracting parties to provide ''adequate legal protection and effective legal remedies against the circumven- @_ 5 tion of effective technological measures that are used by authors in , connection with the exercise of their rights under this Treaty or the T Berne Convention and that restrict acts, in respect of their works, _ which are not authorized by the authors concerned or pennitted by _ law.'' Both of the new WIPO treaties also include substantively iden- tical provisions on rights management information. These provi- sions require contracting parties to protect the integrity of rights management information. The treaties define rights management , information as ''information which identifies the work, the author _ of the work, the owner of any right in the work, or information _ about the terms and conditions of use of the work, and any num- _ bers or codes that represent such information, when any of these @ items of information is attached to a copy of a work or appears in connection wi_th the communication of a work to the public.'' Legislation is required to comply with both of these provisions. To accomplish this, this section adds a new chapter (chapter twelve) to Title 17 of the United States Code. This new chapter twelve includes four new sections to the Copyright Act- section 1201, which prohibits the circumvention of technological copyright protection measures; (2) section 1202, which protects the integrity of copyright management information; (3) section 1203, which pro- vides for civil remedies for violations of sections 1201 and 1202; and (4) section 1204, which provides for criminal penalties for vio- lations of sections 1201 and 1202. Subsection (a) of Section 103 thus amends title 17 to establish this new Chapter 12 to the Copyright Act to protect against certain acts of circumvention of technological measures employed by copy- right owners to defend against unauthorized access to or copying of their works. Section 1201: Circumuention of Copyright Protection SJstems. Subsection (a) of new Section 1201 applies when a person who is not authorized to have access to a work seeks to gain access by cir- cumventing a technological measure put in place by the copyright owner that effectively controls access to the work. The relevant ter- minology is defined in paragraph (3), as described below. Paragraph (1). The act of circumventing a technological protec- tion measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book. Subparagraph (A) establishes a general prohibition against gaining unauthorized access to a work by circumventing a technological measure put in place by the copyright owner where such measure eff ectively con- _ trols access to a work protected under Title 17 of the U.S. Code. This prohibition will not take effect until 2 years from the date of enactment of this chapter of the Copyright Act. Subparagraph (B) provides that the prohibition against cir- cumvention contained in subparagraph (A) will not apply to per- sons who have been authorized to gain initial access to a work, or to nonproft libraries, archives, educational institutions, or other nonprofit entities, with regard to a work contained within a class of works as to which such person or entity is determined to have been adversely affected by the prohibition in their ability to make 6 _ noninfringing uses. This determination is to be made by means of a rulemaking proceeding described in subparagraph (C). Subparagraph (C) establishes a rulemaking to be conducted in the two_year period after the enactment of this new chapter (before the prohibition contained in subparagraph (A) goes into effect), and subsequent to that, every three years, by the Secretary of Com- merce, in conjunction with the Under Secretary of Commerce for Intellectual Property Policy, the Register of Copyrights and the As- sistant Secretary of Commerce for Communications and Informa- tion. The rulemaking will determine, based on specific evidence, whether and to what extent the exemptions in subparagraph (B) to the prohibition contained in subparagraph (A) will take ef Fect. The main purpose of delaying for two years (under subparagraph (A)3 the effective date of the prohibition against circumvention of access control technologies is to allow the development of a record as to how the implementation of these technologies is affecting availability of works in the market place for non-infringing uses. It @' is anticipated that the main focus of the rulemaking proceeding will be on whether a substantial diminution of that availability is actually occwrring in the market for particular classes of copy- righted works. However, it should be recognized that market devel- opments may well proceed on a different pace than the triennial schedule for rulemaking proceedings established in this subsection. Accordingly, the rule-making may also, to the extent required, as- sess whether an adverse impact is likely to occwr over the time pe- riod relevant to each rule-making proceeding. However, the deter- mination should be based upon anticipated, rather than actual, ad- verse impacts only in extraordinary circumstances in which the evi- dence of likelihood of future adverse impact during that time period is highly specific, strong and persuasive. Otherwise, the prohibition would be unduly undermined. The focus of the rulemaking proceeding must remain on whether the prohibition on circumvention of technological protection meas- ures (such as encryption or scrambling) has caused any substantial adverse impact on the ability of users to make non-infiinging uses. Adverse impacts that flow from other source_including market- place trends, other technological developments, or changes in the roles of libraries, distributors or other intermediarie_r that are not clearly attributable to such a prohibition, are outside the scope of the rulemaking. So are mere inconveniences, or individual cases, that do not rise to the level of a substantial adverse impact. In assessing the impact of the implementation of technological measures, and of the law against their circumvention, the rule- making proceedings should consider the positive as well as the ad- verse effects of these technologies on the availability of copyrighted materials. The technological measures-such as encryption, scram- bling and electronic envelopes-that this bill protects can be de- ployed, not only to prevent piracy and other economically harmful unauthorized uses of copyrighted materials, but also to support new ways of disseminating copyrighted materials to users, and to safeguard the availability of legitimate uses of those materials by @ individuals. These technological measures may make more works more widely available, and the process of obtaining permissions easier, -@@@@@_ @7 For example, an access control technology under section 1201(a) would not necessarily prevent access to a work altogether, but could be designed to allow access during a limited time period, such as during a period of library borrowing. Technological measures are also essential to a distribution strategy that allows a consumer to purchase a copy of a single article from an electronic database, rather than having to pay more for a subscription to a Journal con- taining many articles the consumer does not want. i_ Use-facilitating technological protection measures such as these would simultaneously protect the legitimate interests of copyright owners while enabling the kinds of uses by individuals that have been so important in the past in promoting the access of all Ameri- cans to the bounty of creative works available from our writers, @ artists, musicians, composers, film makers, and software devel- opers. The Secretary should give appropriate weight to the deploy- ment of such technologies in evaluating whether, on balance, the prohibition against circumvention of technological measures has caused an adverse impact on the specified categories of users of any particular class of copyrighted materials. Similarly, in assessing the impact of the prohibition on the abil- ity to make noninfringing uses, the Secretary should take into con- sideration the availability of works in the particular class in other formats that are not subject to technological protections. Deciding the scope or boundaries of a ''particular class'' of copy- righted works as to which the prohibition contained in section 1201(a)(1) has been shown to have had an adverse impact is an im- portant issue to be determined during the rulemaking proceedings. The illustrative list of categories appearing in section 102 of Title 17 is only a starting point for this decision. _or example, the cat- egory of ''Iiterary works'' (17 USC 102(a)(1)) embraces both prose creations such as journals, periodicals or books, and computer pro- grams of all kinds. It is exceedingly unlikely that the impact of the prohibition on circumvention of access control technologies will be the same for scientifc journals as it is for computer operating sys- tems; thus, these two categories of works, while both ''literary works,'' do not constitute a single ''particular class'' for purposes of this legislation. Even within the category of computer programs, the availability for fair use purposes of PC-based business produc- tivity applications is unlikely to be affected by laws against cir- cumvention of technological protection measures in the sane way as the availability for those purposes of videogames distributed in formats playable only on dedicated platforms, so it is probably ap- propriate to recognize different ''classes'' here as well. At the same time, the Secretary should not draw the boundaries of ''particular classes'' too narrowly. For instance, the section 102 category ''motion pictures and other audiovisual works'' may appro- priately be subdivided, for purposes of the rulemaking, into classes such as ''motion pictures,'' ''television programs,'' and other rubrics of similar breadth. However, it would be inappropriate, for exam- ple, to subdivide overly narrowly into particular genres of motion pictures, such as Westerns, comedies, or live action dramas. Sin- gling out specifc types of works by creating in the rulemaking process ''particular classes'' that are too narrow would be inconsist- ent with the intent of this bill. 8 Of course, the Secretary is not required to make a determination under the statute with respect to any class of copyrighted works. In any particular 3-year period, it may be determined that the con- ditions for the exemption do not exist. Such an outcome would re- flect that the digital information marketplace is developing in the manner which is most likely to occur, with the availability of copy- righted materials for lawful uses being enhanced, not diminished, by the implementation of technological measures and the establish- ment of carefully targeted legal prohibitions against acts of cir- cumvention. __ A determination that the exceptions in Section 1201(a)(1) are in ef Fect for a particular class of works means that enforcement against someone who circumvents a technological measure that ef- ' fectively controls access to a work falling in that class may not be undertaken during the period (not to exceed three years) covered by the determination. The determination does not change the ille- @ gality of (or the ability to enforce against) any other act of cir- cumvention of an access control technology. For instance, if the same scrambling technology is used to protect two different classes of copyrighted works, and the Secretary makes a determination that the exceptions apply as to the first class, someone who cir- cumvents that technology to gain unauthorized access to a work in the second class would violate the prohibition and would be subject to enforcement action. Subparagraph (D) provides for publication by the Secretary of a list of any class of works the Secretary has determined, pursuant to subparagraph (C), to be or likely to be adversely af Fected. Pursu- ant to subparagraph (B), the prohibition contained in subparagraph (A) shall not apply to the entities described in subparagraph (B) with respect to the particular class(es) of works published, for the following three-year period. During the next rulemaking proceed- ing, if it is determined that there is no longer an adverse impact on noninfringing use, the prohibition will apply and the exemption will cease to exist. Subparagraph (E) provides that the exception contained in sub- paragraph (B) from the application of the prohibition contained in subparagraph (A) may not be used as a defense in any suit brought to enforce any provision of this title other than those contained in paragraph ( 1). For example, it would not provide a defense to a claim based on the manufacture or sale of devices under paragraph (2) or section 1201(b), or to a copyright infringement claim. Paragraph (2). In order to provide meaningful protection and en- forcement of the copyright owners right to control access to his or her copyrighted work, this paragraph supplements the prohibition l against the act of circumvention in paragraph (1) with prohibitions on creating and making available certain technologies, products I and services used, developed or advertised to defeat technological l protections against unauthorized access to a work. Similar laws have been enacted in related contexts. See, e.g., 1_ U.S.C. _ 1002(a) (prohibiting the import, manufacture, or distribution of digital audio recording equipment lacking specified characteristics and prohibiting the import, manufacture, or distribution of any device, or the offer to perform any service, the primary purpose or effect of which is to circumvent the serial copy management system re- @_ 9 quired for digital audio equipment); 47 U.S.C. § 553(a)(2) (prohibit- _ ing the manufacture or distribution of equipment intended for the unauthorized reception of cable television service); 47 U.S.C. § 605(e)(4) (prohibiting the manufacture, assembly, import, and sale of equipment used in the unauthorized decryption of Satelllte Cable programmlng.) LL Specifically, paragraph (2) prohibits manufacturing, importing, offering to the public, providing, or otherwise trafficking in certain _ technologies, products, services, devices, components, or parts that can be used to circumvent a technological protection measure that otherwise effectively controls access to a work protected under Title 17. It is drafted carefully to target ''black boxes,'' and to ensure @ that legitimate multipurpose devices can continue to be made and sold. For a technology, product, srvice, device, component, or part thereof to be prohibited under this subsection, one of three condi- tions must be met. Tt must: (1) be primarily designed or produced for the purpose of cir- cumventlng; _- (2) have only a limited commerclally significant purpose or use other than to circumevent or - (3) be marketed by the person who manufactures it, imports it, Offers it to the public, provideS it or otherwisee traffics in it, or by another person acting in concert with that person, for use In circumventing a technological protection measure that effec- tively controls access to a work protected under Title 17. This provision is designed to protect copyright owners, and si- multaneously allow the development of technology. This three-part test, established for determining when the manu- facture, distribution or other provision of a product or service con- stitutes a violation, is the core of the anti-circumvention provisions of this legislation. This test (also spelled out in 1201(b)(1)), as ex- plicated by the Judiciary commlttee report, stands on its own. While thls legislation is almed prlmarlly at blask boxes that have virtually no legitimate uses, traff icking in any product or service that meets one or more of the three points in this test could lead to liability. It is not required to prove that the device in question was espressly intended to facillitate circumvention. At the Same time, the manufacturers of legitimate consumer products such as personal computers, VCR's, and the like have nothlng to fear from this legislation because those legitimate devices do not meet the three-part test. The Sony test of ''capability_ of substantial non- infrlnglng uses, while Stlll operative In Cases claiming contributory _ infrlngement Of copyrlght, is not part of this legislation, however. Sony Corporation of America v. Universal Studios, Inc 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 ( 1984). The relevant test, spelled out In the plain and unchanged language of the bill, is _ whether or not a product or service ''has only limited commercially Significant purpose or use other than to circumvent." _ Paragraph (3) defines certain terms used throughout susection (a) ' (1) ''circumvent a technological measure'' for purposes of _ subsectionn (a) only, which covers technological protections against unauthorized access to a work, this term means ''to _ descramble a scrambled WOrk, to decrypt an encrypted work, or 10@ otherwise to avoid, bypass, remove, deactivate, or impair a technological protection measure, without the authority of the copyright owner.'' _ (2) ''effectively controls access to a work''-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 report issued by the Committee on Commerce, to which cer- _ tain provisions of this legislation were referred sequentially, and _ the statements of some individual members, could be read to pro- vide a more narrow definition ot the ''effective technological meas- _ ures'' this legislation is intended to protect against circumvention_ These statements may reflect a misapprehension of the approach that this legislation has consistently taken ever since it was intro- @ duced. Throughout the legislative process, the phrase ''technological measure'' (or, in earlier versions of the legislation, ''technological protection measure'') (Footnote) has been treated in H.R. 2Z81 in terms of ihe function such a measure would perform, rather than the spe- cifc technology to be used or the means for developing it. The Com- mittee on the Judiciary took this approach in crafting this legisla- tion in recognition that technology evolves so rapidly that it would be impractical to freeze in time the applicability of these Provisions by limiting them to specifcally named technologies_ The bill does define the fwnctions of the technological measures that are covered-that is, what it means for a technological meas- ure to ''effectively control access to a work'' (section 120 1 (a)(3)(B)) and to ''effectively protect a right of a copyright owner under this title'' _i.e., Title 17, United States Code_ (section 120 1(b)(2)(B)) The practical, common-sense approach taken by H.R. 2281 is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work, or to control copying, distribution, public performance, or the exercise of other exclusive rights in a work, then the ''effectiveness'' test is met, and the Prohi- bitions of the statute are applicable. This test, which focuses on the function performed by the technology, provides a suffcient basis for clear interpretation. It applies equally to technologies used to Pro- tect access to works whether in analog or digital formats_ This approach also follows that taken by the parallel Provisions of the Communications Act. Section 553(a) of Title 47, for example, prohibits both the act of cable signal theft, and the manufacturing or distribution of "equipment intended ... for unauthorized recept- tion of any communications service offered over a cable system_'' In enacting this provision, Congress did not seek to defne the Particu- lar technologies used by cable systems to prevent theft of service, nor the particular means of circumvention that were Prohibited_ Rather, the prohibition extends to any unauthorized act of ''inter- cepting'' cable signals, as well as to any equiPment whose intended function is to circumvent any protective mechanism. @ L Either phrase must be distinguished from ''standard technical measure_ as that Phrase is used in Title II of the bill. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 17:20:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA09821 for dvd-discuss-outgoing; Tue, 12 Sep 2000 17:20:13 -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 RAA09818 for ; Tue, 12 Sep 2000 17:20:12 -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 QAA25678 for ; Tue, 12 Sep 2000 16:21:15 -0500 (CDT) Message-ID: <39BE9E96.187ABF@uic.edu> Date: Tue, 12 Sep 2000 16:22:30 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] new DeCSS tool Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > artists who are "MP3 friendly" will be consciously > preferred and will displace artists who offer less > enjoyment value to the consumer Funny you say that, because there is a similar phenomenon going on right now. Some bands allow audience taping, and as a result they build up phenomenal fan loyalty, by allowing their fans to not only enjoy the music at the concert, but also take the shows home with them and trade them amongst each other. The Grateful Dead offshoots, Phish, moe., String Cheese Incident, etc, etc. Personally, these days, I tend to ignore bands that don't allow taping, and if I see them live, it tends to be one time only. I just don't feel that I'm getting my money's worth otherwise, and I can't listen to them at home, so they fall off my radar. Just an example of how a band can use a loosened copyright model to build up fan loyalty and bypass having to give their copyrights away. Phish was selling out concert halls and hockey arenas without a single radio song, and when they finally signed a distribution deal with Elektra, they did it on their own terms. Their songs are copyrighted by THEIR company, not by the record label. I see no reason why it should be different with mp3. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 17:50:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15432 for dvd-discuss-outgoing; Tue, 12 Sep 2000 17:50:26 -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 RAA15429 for ; Tue, 12 Sep 2000 17:50:24 -0400 Received: from travel-net.com (trj115.travel-net.com [207.176.160.115]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id RAA11852 for ; Tue, 12 Sep 2000 17:52:24 -0400 Message-ID: <39BEA3F5.D25A7DE6@travel-net.com> Date: Tue, 12 Sep 2000 17:45:25 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000912195716.17601.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 Well Im going to wait a bit for someone who actually swims in an appellate court to weigh in before answering this, ok? Bryan Taylor wrote: > --- Dan Steinberg wrote: > > > II) Defendants had legitimate purposes > > Specifically how do we go down the road in (II) without stumbling all > > over those pesky facts? Don;t get me wrong. I'm not objecting to > > anything (yet). I'm just concerned about how to get to the > > desired result. > > If I understand civil procedure correctly, we can't introduce new > evidence into the record. We can, however, challenge Kaplan's findings > of fact when they are entirely unsupported by the record of admissible > evidence. I think that the judge gets to decide which piece of evidence > he weights the most, but he cannot base findings of fact on facts not > properly admitted into evidence (this is an abuse of his discretion). > > In order to make this point we have to say "The evidence says A,B,C. > Kaplan found X. Kaplan abused his discretion, since none of A,B,C > supports X." If Kaplan relied on D to support X, but D is inadmissible, > this is also grounds for challenging X. > > __________________________________________________ > Do You Yahoo!? > Yahoo! Mail - Free email you can access from anywhere! > http://mail.yahoo.com/ -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 17:51:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15459 for dvd-discuss-outgoing; Tue, 12 Sep 2000 17:51:19 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA15456 for ; Tue, 12 Sep 2000 17:51:16 -0400 Message-ID: <20000912215148.5131.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Tue, 12 Sep 2000 14:51:48 PDT Date: Tue, 12 Sep 2000 14:51:48 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 --- "Robert S. Thau" wrote: > Dan Steinberg writes: > > Ok, distilling down we appear to have a 3-pronged argument in an > > amicus brief at the appellate level: > > I Authority adheres to persons, not devices > > II Defendants had legitimate purposes > > [III] Effects of "authorized device" interpretation > > If the brief is based exclusively on the authority argument, that > would be one way to structure it. It could also be a component of a > larger brief, like the ones which Bryan has been outlining (in which > case, some of the authority outline could be trimmed). I was thinking that this outline would go nicely where I have a placeholder labelled III on authority and first sale. Perhaps there is a better title for it (suggestions?) I think it will fit well with the rest. Obviously, the whole outline needs to be scrubbed a few times until it stabilizes a bit. Anyway, when I get home, I'll try to put out an updated outline, that can hopefully be an alpha spec. __________________________________________________ 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 Sep 12 18:10:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16037 for dvd-discuss-outgoing; Tue, 12 Sep 2000 18:10:56 -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 SAA16034 for ; Tue, 12 Sep 2000 18:10:55 -0400 Message-ID: <20000912221127.11600.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 12 Sep 2000 15:11:27 PDT Date: Tue, 12 Sep 2000 15:11:27 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 --- Ravi Nanavati wrote: > Look at the (amended) complaint on the openlaw site: > http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0126-am-complaint.html > They clearly allege the basis of a 1201(b) claim (control of > exclusive rights) and, in paragraph 31, claim defendants > are violating section 1201 (not just 1201(a), as they cited > earlier), which includes 1201(b). I agree they don't highlight > the 1201(b) claim, but it appears to be there (unless > there are rules about exactly how specific they need and section 1201 > isn't specific enough, which would be a great relief). Thanks for the citation. I just don't see support there for a (b)(1) claim. They have a section labelled Claim for Relief (Violation of Provisions Governing Circumvention of Copyright Protection Systems, 17 U.S.C. § 1201 et seq.) It comprises items 26 to 32 (item 26 incorporates 1-25). Item 27 lists (a)(2)(A,B,C), and the following items state the allegation that the conditions there-in are met. Nowhere in 26 to 32 (or 1-25) is (b)(1) mentioned. By the fact that it is not treated similarly to (a)(2), I think we can decide that it is not a claim for relief as a cause of action. I don't know what "et seq." means in "17 U.S.C. §§ 1201 et seq. " (Anyone?) I would interpret this whole phrase as a reference in shorthand to the causes of action enumerated therein at paragraph 27, namely 1201(a)(2)(A,B,C). __________________________________________________ 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 Sep 12 18:23:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16472 for dvd-discuss-outgoing; Tue, 12 Sep 2000 18:23:33 -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 SAA16469 for ; Tue, 12 Sep 2000 18:23:31 -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 SAA17319 for ; Tue, 12 Sep 2000 18:24:32 -0400 (EDT) Message-ID: <39BEAD20.7643A2E3@mediaone.net> Date: Tue, 12 Sep 2000 18:24:32 -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] [Fwd: Fw: inapprp. content - song [#588859]] Content-Type: text/plain; charset=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 asked Joe Wecker how come DeCSS was no longer on MP3.COM, and here's his answer: -------- Original Message -------- Subject: Fw: inapprp. content - song [#588859] Date: Tue, 12 Sep 2000 16:11:17 -0600 From: "Joseph Wecker" To: "Sphere" ----- Original Message ----- From: To: Sent: Monday, September 11, 2000 7:23 PM Subject: Re: inapprp. content - song [#588859] | Dear MP3.com artist, | | This song has been placed on hold and has not | been released to the public for the following reason | | Inappropriate Content: | Song: | | Your song has either a song title or lyrics | that are offensive or otherwise inappropriate. | | Regards, | MP3.com | | | ----- joew@samaritan.com Wrote ----- | REASON: | inapprp. content - song | | SONG TITLE: DeCSS | FROM: | joew@samaritan.com | | | I'm kind of upset. So much, that I would even say- Void function them! Those vectors of unsigned bytes! I'd xor 'em if I could@!!! From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 18:28:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16645 for dvd-discuss-outgoing; Tue, 12 Sep 2000 18:28:28 -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 SAA16642 for ; Tue, 12 Sep 2000 18:28:26 -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 RAA11132 for ; Tue, 12 Sep 2000 17:29:29 -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 RAA28615 for ; Tue, 12 Sep 2000 17:29:28 -0500 (CDT) Received: by cdmpls02m.cdpoly.cargill.com with Internet Mail Service (5.5.2448.0) id ; Tue, 12 Sep 2000 17:25:10 -0500 Message-ID: From: "Kroll, Dave" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] [Fwd: Fw: inapprp. content - song [#588859]] Date: Tue, 12 Sep 2000 17:25:09 -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 I don't suppose this would be an example of chilling free speech, now, would it? ---Dave Of course not! It's not free speech, it's trafficing in a circumvention device! Double plus ungood! > -----Original Message----- > From: Sphere [SMTP:sphere1952@mediaone.net] > Sent: Tuesday, September 12, 2000 5:25 PM > To: dvd-discuss > Subject: [dvd-discuss] [Fwd: Fw: inapprp. content - song [#588859]] > > > I asked Joe Wecker how come DeCSS was > no longer on MP3.COM, and here's > his answer: > > -------- Original Message -------- > Subject: Fw: inapprp. content - song [#588859] > Date: Tue, 12 Sep 2000 16:11:17 -0600 > From: "Joseph Wecker" > To: "Sphere" > > > ----- Original Message ----- > From: > To: > Sent: Monday, September 11, 2000 7:23 PM > Subject: Re: inapprp. content - song [#588859] > > > | Dear MP3.com artist, > | > | This song has been placed on hold and has not > | been released to the public for the following reason > | > | Inappropriate Content: > | Song: > | > | Your song has either a song title or lyrics > | that are offensive or otherwise inappropriate. > | > | Regards, > | MP3.com > | > | > | ----- joew@samaritan.com Wrote ----- > | REASON: > | inapprp. content - song > | > | SONG TITLE: DeCSS > | FROM: > | joew@samaritan.com > | > | > | > > > > > I'm kind of upset. So much, that I would even say- Void function them! > Those vectors of unsigned bytes! I'd xor 'em if I could@!!! From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 18:45:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17323 for dvd-discuss-outgoing; Tue, 12 Sep 2000 18:45:24 -0400 Received: from ruby.ils.unc.edu (ruby.ils.unc.edu [152.2.81.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17320 for ; Tue, 12 Sep 2000 18:45:23 -0400 Received: (from gbnewby@localhost) by ruby.ils.unc.edu (8.9.3/8.9.0) id SAA18446 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 18:46:25 -0400 (EDT) Date: Tue, 12 Sep 2000 18:46:25 -0400 From: Greg Newby To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000912184624.C16008@ils.unc.edu> References: <20000908230354.A10209@lemuria.org> <20000909013703.C151@ils.unc.edu> <20000912162052.A29649@ils.unc.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i In-Reply-To: <20000912162052.A29649@ils.unc.edu>; from gbnewby@ils.unc.edu on Tue, Sep 12, 2000 at 04:20:52PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 04:20:52PM -0400, Greg Newby wrote: > I found out today that the email letter did, indeeed, come from the > MPAA. Or, it certainly looks that way. > ... Coincidentally, today I also got the letter my employer, the University of North Carolina at Chapel Hill, sent to the MPAA. This is a regular print letter (too bad they didn't decide to respond via email from "unc42@pacbell.net" or somesuch). Basically, as I mentioned earlier, UNC has backed me on this one, and is not going to meet the MPAA's demands. They didn't even specify in the letter who I am (one of the MPAA's demands, even though it's right on the Web page they're complaining about :\) The main paragraph of interest from the letter, sent by the UNC Legal Counsel, is as follows: We have reviewed with care your allegations along with the relevant language of the Copyright Act. Although it has no authority in this jurisdiction, we have also reviewed Judge Kaplan's order. Based on our review, we do not believe our personnel are currently engaged in "manufacturing, importing or offering to the public, providing or otherwise trafficking [in]," 17 U.S.C. 1201(a)(2), an unlawful circumvention device in violation of the Copyright Act through the web site referred to above. Consequently, we respectfully deline to take the remedial steps demanded in your August 28, 2000 email message. So, this is some good news for me. I never heard back from ANY other academic site that got this second round of letters, other than me. So, another call: if you know of one, let me know! I think all the student pages went down after the first round of letters this spring, and I was one of very few professors who actually incorporated the DeCSS and related software & discussion into my class curricula. UNC still won't let me demonstrate the software, or even store it on UNC-based servers. But I can talk about it, in class or outside of class -- and, evidently, link to sites that carry it (as well as related tools, such as the LiVid suite). -- Greg // Gregory B. Newby, Assistant Professor in the School of Information // and Library Science, University of North Carolina at Chapel Hill // CB# 3360 Manning Hall, Chapel Hill, NC, 27599-3360 E: gbnewby@ils.unc.edu // V: 919-962-8064 F: 919-962-8071 W: http://www.ils.unc.edu/gbnewby/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 18:50:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17504 for dvd-discuss-outgoing; Tue, 12 Sep 2000 18:50:28 -0400 Received: from rgate3.ricochet.net (rgate3.ricochet.net [204.179.143.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17501 for ; Tue, 12 Sep 2000 18:50:27 -0400 Received: from shannon (mg-206253200-9.ricochet.net [206.253.200.9]) by rgate3.ricochet.net (8.9.3/8.9.3) with SMTP id RAA10821 for ; Tue, 12 Sep 2000 17:51:40 -0500 (CDT) From: "John Dempsey" To: Subject: RE: [dvd-discuss] new DeCSS tool Date: Tue, 12 Sep 2000 15:54:49 -0700 Message-ID: <000001c01d0c$743afd90$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <39BE9E96.187ABF@uic.edu> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Funny you say that, because there is a similar > phenomenon going on right now. Some bands > allow audience taping, and as a result they > build up phenomenal fan loyalty, by allowing > their fans to not only enjoy the music at the > concert, but also take the shows home with > them and trade them amongst each other. I think you're getting at an important point that isn't often discussed. There are various statements tossed around about the motivations of musicians, the rights of artists, etc. Some musicians have come out in the RIAA's camp--though they certainly are NOT the RIAA--and some have come out in the ChuckD, 'get heard' camp. Most aren't saying much. My view is that I am skeptical that the protect-the-profits crowd really has anything to say. Metallica certainly has little to say and much to sell. I visited 'Artists against Piracy' at http://www.artistsagainstpiracy.com/html/sub_main.htm. Of the musicians I can identify, I made these conclusions: Pop or country (which is now essentially pop) stars with empty minds and big fat bank accounts: Alanis Morissette Barenaked Ladies Bon Jovi · Bryan Adams · Christina Aguilera · David Sanborn · Dwight Yoakam · Faith Hill · Garth Brooks · Hanson Lonestar · Martina McBride · Neneh Cherry · · Vince Gill Trace Adkins · Reba McEntire Ronnie Milsap · Legitimate, talented musicians in this group: Herbie Hancock · This isn't a scientific study. But my feeling is that greedy pop star wonks with marginal skills (Garth Brooks also opposes the resale of used CD's!!!) who make their cash cashing in (like I do) are against internet piracy, and musicians in the practiced, skillful sense appreciate being heard (the more the better) and get paid just fine. Of course I've always had this anarchistic/communistic wishy-washy analysis and capitalism isn't likely to agree. But look at the 'musicians' who oppose Internet piracy. I'm a fan of almost none. I tend to feel ill when I hear most of them (except some Alanis and ok I admit to Garth but these are bizarre pleasures stemming from childhood trauma). A more skilled musician past his prime might also join the club. Smaller bands are out because they don't make money on CD sales anyway (See http://mitvma.mit.edu/~mhb/ALBINI.HTML). To them, the RIAA is a parasite. I think this model doesn't hold for movies because the profit models are all different. It's mostly the image/hype/hook sellers who want you to buy the CD (and pay too much, for one good song). This model, of paying big bucks (to the industry, not the artist) for one worthwhile track and the rest pith written by (or chosen by) marketers, is one I've never followed. If the industry can open up to reasonably-priced tracks of what I want, when I want, I'll play along. Otherwise, I guess I'm a proud pirate. Let the dinosaur die. John From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 18:56:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17649 for dvd-discuss-outgoing; Tue, 12 Sep 2000 18:56:22 -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 SAA17646 for ; Tue, 12 Sep 2000 18:56:21 -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 SAA07597 for ; Tue, 12 Sep 2000 18:57:21 -0400 (EDT) Message-ID: <39BEB4CF.14EE3DEC@mediaone.net> Date: Tue, 12 Sep 2000 18:57:19 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000912195716.17601.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: > > --- Dan Steinberg wrote: > > > II) Defendants had legitimate purposes > > Specifically how do we go down the road in (II) without stumbling all > > over those pesky facts? Don;t get me wrong. I'm not objecting to > > anything (yet). I'm just concerned about how to get to the > > desired result. > > If I understand civil procedure correctly, we can't introduce new > evidence into the record. We can, however, challenge Kaplan's findings > of fact when they are entirely unsupported by the record of admissible > evidence. I think that the judge gets to decide which piece of evidence > he weights the most, but he cannot base findings of fact on facts not > properly admitted into evidence (this is an abuse of his discretion). > > In order to make this point we have to say "The evidence says A,B,C. > Kaplan found X. Kaplan abused his discretion, since none of A,B,C > supports X." If Kaplan relied on D to support X, but D is inadmissible, > this is also grounds for challenging X. > Aren't you allowed to submit _new_ evidence? Stuff which wasn't available at the time of the trial -- such as evidence of the chilling effect of the ruling? (Maybe that's just criminal law...) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 19:23:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18280 for dvd-discuss-outgoing; Tue, 12 Sep 2000 19:23:35 -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 TAA18277 for ; Tue, 12 Sep 2000 19:23:33 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id QAA09841 for ; Tue, 12 Sep 2000 16:24:35 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma009661; Tue, 12 Sep 00 16:23:39 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id RAA18730; Tue, 12 Sep 2000 17:23:38 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Two interesting quotes from the Judiciary Comitee report Date: Tue, 12 Sep 2000 17:28:40 -0600 Message-ID: <000101c01d11$2eeff060$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 Hear are to interesting quotes. The first is the famous "authorized persons" quote which shows our best grounds for appeal on the denial of authority as a fact -- especially since it was disputed by the parties. > Section 1201: Circumuention of Copyright Protection SJstems. > Subsection (a) of new Section 1201 applies when a person who is > not authorized to have access to a work seeks to gain access by cir- > cumventing a technological measure put in place by the copyright > owner that effectively controls access to the work. The relevant > terminology is defined in paragraph The standard for circumvention here is clear it involves unauthorized persons. When the court excluded authority from consideration of fact it excluded the argument that DeCSS was in fact not a circumvention device as no circumvention was occuring. Without being able to determine whether or not (from the evidence) DeCSS allowed unauthorized persons access to TPM'd content (the DVD's) it is impossible to prove (or disprove) that DeCSS is a circumvention device. Shouldn't it have been the P's burden to show that DeCSS did provide access to unauthorized persons? Note that there are no stipulations within the congressional record about the nature of the access. The only fact at issue is whether or not the person is authorized to access. It says nothing about restricting the access to playback only. It says nothing about the requirement on the authorized person to not perserve unencrypted copies of the TPM'd content based on that access. In fact, it is consistant with later sections of 1201 that fair use is unimpaired (which would include archival, space & time shifting), in that it makes no such restrictions. Thus the P's argument that later actions of an authorized access could result in copyright violation (for example Divxing a movie and posting to the internet) are irrelevant. The authority of the person, not their potential future actions dictates (along with the exemptions) whether an act is circumvention. So assuming that we have a meaningful authority-of-persons model the anti-circumvention fair-use clauses aren't in conflict and both DMCA and DeCSS are constitutional and legal (respectively). But wait it gets worse for the constitutional soundness of DMCA (and my sanity) below. The second quote shows that even with broad exemptions for public domain works (for example), this doesn't help DeCSS because the committe report reflects the same bizarre thinking "we can provided a right, but proscribe all means to exercise that right" which the P's argued regarding fair use. The "of course you can going swimming but don't go near the water" logic embodied in this second section doesn't pass the giggle test, shouldn't stand up to constitutional scrutiny, and somehow passed congress -- hmmmm. However it is probably outside the scope of what one could argue in this particular case. It doesn't help us, though the D's should be aware that the P's may throw this in to show that their similar argument about fair use reflects congressional intent even if it is nonsense. The following paragraph regarding exemptions for classes of works highlights the problem > For instance, if the > same scrambling technology is used to protect two different classes > of copyrighted works, and the Secretary makes a determination > that the exceptions apply as to the first class, someone who cir- > cumvents that technology to gain unauthorized access to a work in > the second class would violate the prohibition and would be subject > to enforcement action. So we have a situation that a group of works is exempted from the anti-circumvention provisions, but is indistinguishable from a technological standpoint from other non-exempt works. This is where it gets nonsensical... > Subparagraph (E) provides that the exception contained in sub- > paragraph (B) from the application of the prohibition contained in > subparagraph (A) may not be used as a defense in any suit brought > to enforce any provision of this title other than those contained in > paragraph ( 1). Looking at 1201a this make some kind of sense. The fact that two technologically identical works have been classified differently (exempt or non-exempt) shouldn't provide a defense for unauthorized persons accessing non-exempted works. What is insane is that the specific example is 1201(b)(!) the "trafficking" section. > For example, it would not provide a defense to a > claim based on the manufacture or sale of devices under paragraph > (2) or section 1201(b), or to a copyright infringement claim. > Paragraph (2). What the record reflects is a mutually exclusive set of goals -- "yes you may go swimming, but you may not go near the water." On one part the exemptions are for the public good (and elsewhere in the record it encourages fine grain distinctions). Then in the very problem case they identify above (mixed exemption works) they specifically prohibit a defense for devices that would allow access to the exempted self same works. Works can be exempted from anti-circumvention, but no devices may be produced or sold to access those exempted works. If the means to access exempted works allowed, how then is it different than if no works had been exempted. If we thought the law was bad... I'm not sure the congressional record is any better. Having said that it seems that focusing on the authority model and the issue of authorized persons is the key here. By focusing on issue that either CSS isn't a 1201 effective TPM or that DeCSS in never granting rights to unauthorized persons cannot be considered circumvention, that's the winner for DeCSS here and for all future cracks of non-pay-per-view published content. Once the crack of the non-pay-per-view systems are shown to be legal and innevitable, the "hook" of encryption (to enforce restrictive licensing terms) is dulled and the attraction to these foolish schemes is remanded to the dustbin of history. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 19:27:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18476 for dvd-discuss-outgoing; Tue, 12 Sep 2000 19:27:57 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18473 for ; Tue, 12 Sep 2000 19:27:55 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id QAA06869 for ; Tue, 12 Sep 2000 16:28:55 -0700 Date: Tue, 12 Sep 2000 16:28:55 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] new DeCSS tool In-Reply-To: <000001c01d0c$743afd90$0200a8c0@shannon> Message-ID: MIME-Version: 1.0 Content-Type: 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, 12 Sep 2000, John Dempsey wrote: > I visited 'Artists against Piracy' at > http://www.artistsagainstpiracy.com/html/sub_main.htm. This kind of makes me laugh. artistsagainstpiracy.com should be a group against the RIAA! Anyway, it's run by gmemusic.com, a group that, while honestly (I think) trying to solve the problems, is still working in a music industry framework that's outdated. (They claim it's "impossible and grueling" to make a living touring. I have two things to say: There were plenty of musicians before recording. Get day jobs.) Anyway, I'm trying to decide if I should register artistsagainstcopyright.com or artistsagainstindustry.com in rebuttal. Maybe just againstpiracy.com and talk about the REAL piracy going on in corporate America (or corporate Trans-National PsuedoState, if you will). J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 19:27:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18468 for dvd-discuss-outgoing; Tue, 12 Sep 2000 19:27:41 -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 TAA18465 for ; Tue, 12 Sep 2000 19:27:40 -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 SAA13092 for ; Tue, 12 Sep 2000 18:28:43 -0500 (CDT) Message-ID: <39BEBC78.8790A983@uic.edu> Date: Tue, 12 Sep 2000 18:30:00 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] [completely off topic] new DeCSS tool 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 "John Dempsey" writes: > I visited 'Artists against Piracy' at > http://www.artistsagainstpiracy.com/html/sub_main.htm. ... > Pop or country (which is now essentially pop) > stars with empty minds and big fat bank accounts: ... > Legitimate, talented musicians in this group: > Herbie Hancock · I'd add Dr. John to the "talented" list also. My take on the list ... It isn't a matter of "empty minds and big fat bank accounts" ... it's really a matter of "If you're riding the gravy train, you tend to be a big fan of the gravy train. Unfortunately, the RIAA gravy train only has room for a couple dozen or so passengers at a time, but if you're Christina Aguilera, you've got one of those seats, they're serving champagne, and you've got a powerful interest in maximizing the power of the RIAA; the railroad company running the train. I have no doubt that it's a hell of a fun ride. Here's my problem with the philosophy behind this site: > WHO ARE ARTISTS AGAINST PIRACY'S > CORPORATE SPONSORS? > We have a variety of supporters and are searching > for more from within the entertainment and tech > industries. All of our supporters have one thing in > common - they believe in our agenda, which is that > artists have a right to be compensated for their work > and that intellectual property is something we hold > dear and sacred. Funny, most musicians I respect tend to consider MUSIC as sacred, not copyright laws. > Take Napster's own Web site for example. If you > look at their Web site, you will see their Terms of > Service. Part of it says that no portion of its Web > page, its logo, software or ideas can be reproduced, > transferred or used without their express permission. > Embodied in that statement is the whole notion of > intellectual property being something that is valued > and sacred. What I see embodied in that statement is the whole notion of intellectual property as chattel, articles of commerce; government monopolies bought, sold, and held for their monetary value, not their artistic value. Look at the list of artistsagainstpiracy.com's corporate sponsors: > Our supporters include the National Association of > Record Merchandisers (NARM), the Recording > Industry Association of America (RIAA), and > Disney. In the tech community, Supertracks, MyPlay, > Liquid Audio, Emusic.com, Preview Systems, > Reciprocal, Cognicity and Everad have committed > their support. All of which are either the owners and operators of the gravy train, or are lined up to buy shares in the railroad company. I'm just not convinced of Noah Stone's overriding philosophy -- which he repeats no fewer then four times on the Q&A page: that copyrights are sacred. If anything, it devalues the word, and the art. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 19:36:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18696 for dvd-discuss-outgoing; Tue, 12 Sep 2000 19:36:30 -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 TAA18693 for ; Tue, 12 Sep 2000 19:36:29 -0400 Message-ID: <20000912233701.13761.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Tue, 12 Sep 2000 16:37:01 PDT Date: Tue, 12 Sep 2000 16:37:01 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] mpaa23 details To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Greg Newby wrote: > The main paragraph of interest from the letter, sent by the UNC Legal > Counsel, is as follows: > > We have reviewed with care your allegations along with > the relevant language of the Copyright Act. Although it > has no authority in this jurisdiction, we have also > reviewed Judge Kaplan's order. Based on our review, we > do not believe our personnel are currently engaged in > "manufacturing, importing or offering to the public, > providing or otherwise trafficking [in]," 17 U.S.C. > 1201(a)(2), an unlawful circumvention device in > violation of the Copyright Act through the web site > referred to above. Consequently, we respectfully > deline to take the remedial steps demanded in your > August 28, 2000 email message. > > So, this is some good news for me. Hooray for UNC !! It seems like the MPAA is already straining their bandwidth a little to get these letters out. Perhaps someone should create a how-to on responding to mass mailed cease and desist letters. I REALLY like the approach slashdot took -- don't say yes or no, just ask questions. If everybody does this, it's sort of like a DOS attack, except it's self inflicted. The mass C&D tactic is a play to cheaply distribute intimidation. If everybody responds, the costs go up and the tactic doesn't work as well. __________________________________________________ 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 Sep 12 19:52:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19250 for dvd-discuss-outgoing; Tue, 12 Sep 2000 19:52:04 -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 TAA19247 for ; Tue, 12 Sep 2000 19:52:03 -0400 Received: from travel-net.com (trj115.travel-net.com [207.176.160.115]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id TAA19673 for ; Tue, 12 Sep 2000 19:54:02 -0400 Message-ID: <39BEC06D.C9286A66@travel-net.com> Date: Tue, 12 Sep 2000 19:46:53 -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] mpaa23 details References: <20000912233701.13761.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: > --- Greg Newby wrote: > > > The main paragraph of interest from the letter, sent by the UNC Legal > > Counsel, is as follows: > > > > We have reviewed with care your allegations along with > > the relevant language of the Copyright Act. Although it > > has no authority in this jurisdiction, we have also > > reviewed Judge Kaplan's order. Based on our review, we > > do not believe our personnel are currently engaged in > > "manufacturing, importing or offering to the public, > > providing or otherwise trafficking [in]," 17 U.S.C. > > 1201(a)(2), an unlawful circumvention device in > > violation of the Copyright Act through the web site > > referred to above. Consequently, we respectfully > > deline to take the remedial steps demanded in your > > August 28, 2000 email message. > > > > So, this is some good news for me. > > Hooray for UNC !! > > It seems like the MPAA is already straining their bandwidth a little to > get these letters out. Perhaps someone should create a how-to on > responding to mass mailed cease and desist letters. > > I REALLY like the approach slashdot took -- don't say yes or no, just > ask questions. If everybody does this, it's sort of like a DOS attack, > except it's self inflicted. The mass C&D tactic is a play to cheaply > distribute intimidation. If everybody responds, the costs go up and the > tactic doesn't work as well. > Ummmmmmmmmm while I'm as much a fan of well-organized civil disobedience as the next person. but I don't feel comfortable giving out 'yes go for it!' advice here. For one thing, the cases may be different. And I bring this up because the MPAA might (who knows) decide to do some triage among the people who don't fold and pick a few select 'targets' the so-called other flotation devices on the Hudson... It may be the right thing to do in certain cases and it may be asking for trouble in others. Don't ask me for specific examples, but if Judge Kaplan has a child, their school might not be the best place to take a stand (especially if its around the corner from the courthouse...) People contemplating this should seriously contemplate getting specific legal advice. And no, asking me doesnt count. -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 20:04:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19770 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:04:23 -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 UAA19767 for ; Tue, 12 Sep 2000 20:04:22 -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 UAA26944 for ; Tue, 12 Sep 2000 20:05:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA25664; Tue, 12 Sep 2000 20:05:19 -0400 (EDT) Date: Tue, 12 Sep 2000 20:05:19 -0400 (EDT) Message-Id: <200009130005.UAA25664@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] new DeCSS tool In-Reply-To: <000001c01d0c$743afd90$0200a8c0@shannon> References: <39BE9E96.187ABF@uic.edu> <000001c01d0c$743afd90$0200a8c0@shannon> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Dempsey writes: > I think you're getting at an important point that isn't often > discussed. There are various statements tossed around about the > motivations of musicians, the rights of artists, etc. Some > musicians have come out in the RIAA's camp--though they certainly > are NOT the RIAA--and some have come out in the ChuckD, 'get heard' > camp. Most aren't saying much. My view is that I am skeptical > that the protect-the-profits crowd really has anything to say. > Metallica certainly has little to say and much to sell. FWIW, I really liked Courtney Love's speech on recording industry economics to the Digital Hollywood online entertainment conference, which was published in Salon at http://www.salonmag.com/tech/feature/2000/06/14/love/ I don't know what you all think of her albums. But you have to like a speech that starts off: Today I want to talk about piracy and music. What is piracy? Piracy is the act of stealing an artist's work without any intention of paying for it. I'm not talking about Napster-type software. I'm talking about major label recording contracts. She runs the numbers to justify that. Then she gets nasty; particularly relevant here is the quickie tour of the Capitol Hill sausage factory. BTW, don't assume from the opening lines that she's pro-napster; her position is a lot more nuanced than that. But it's well presented and all worth reading. Even her take on the dotcom frenzy: The celebrity-for-sale business is about to crash, I hope, and the idea of a sucker VC gifting some company with four floors just because they can "do" "chats" with "Christina" once or twice is ridiculous. I did a chat today, twice. Big damn deal. 200 bucks for the software and some elbow grease and a good back-end coder. Wow. That's not worth 150 million bucks. ... I mean, yeah, sure it is if you'd like to give it to me. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 20:04:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19794 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:04:55 -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 UAA19775 for ; Tue, 12 Sep 2000 20:04:44 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA11228 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 20:07:11 -0400 Date: Tue, 12 Sep 2000 20:07:06 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000912200706.B10590@eldritchpress.org> References: <20000912233701.13761.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000912233701.13761.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Sep 12, 2000 at 04:37:01PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > --- Greg Newby wrote: > > > The main paragraph of interest from the letter, sent by the UNC Legal > > Counsel, is as follows: > > > > We have reviewed with care your allegations along with > > the relevant language of the Copyright Act. Although it > > has no authority in this jurisdiction, we have also > > reviewed Judge Kaplan's order. Based on our review, we > > do not believe our personnel are currently engaged in > > "manufacturing, importing or offering to the public, > > providing or otherwise trafficking [in]," 17 U.S.C. > > 1201(a)(2), an unlawful circumvention device in > > violation of the Copyright Act through the web site > > referred to above. Consequently, we respectfully > > deline to take the remedial steps demanded in your > > August 28, 2000 email message. > > > > So, this is some good news for me. > > Hooray for UNC !! A Good Place to Work fer sure. Congrats! Those who read the MPAA letter might note that its language is unchanged from the first one, and seeks to ban any and all links that somehow end up, through any chain, to DeCSS. But Kaplan did not rule that. Their demand is overbroad, fraudulent, and a misuse of copyright. To carry it out would be to bring the entire WWW down. Clearly MPAA is not carefully targeting sites that are in direct violation, just going after easy targets in a mechanical way, no matter if it stifles teaching in colleges or is in any way free speech. Let's have more of those letters. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 20:16:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20197 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:16:15 -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 UAA20194 for ; Tue, 12 Sep 2000 20:15:59 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA11275 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 20:18:26 -0400 Date: Tue, 12 Sep 2000 20:18:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief Message-ID: <20000912201821.C10590@eldritchpress.org> References: <20000912012917.B9888@eldritchpress.org> <200009121338.JAA17699@soggy-fibers.ai.mit.edu> <39BE60B7.2FAF0CF2@travel-net.com> <39BE66BF.94E59115@mit.edu> <200009121810.OAA19755@soggy-fibers.ai.mit.edu> <39BE79D8.F990DDF5@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39BE79D8.F990DDF5@mit.edu>; from ravi_n@mit.edu on Tue, Sep 12, 2000 at 02:45:44PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 02:45:44PM -0400, Ravi Nanavati wrote: > "Robert S. Thau" wrote: > > > > Ravi Nanavati writes: > > > Actually, it gets worse. The MPAA amended their complaint to include > > > 1201 (a) and 1201 (b) violations, and Kaplan ruled in favor of them > > > in both instances (this is why he can dance between copy control and > > > access control in his opinion). I think we can make a strong case that > > > Kaplan was legally mistaken when he ruled CSS is access control, but > > > I don't know if we have the facts in the record to do the same for > > > copy control. > > > > Ummm... this may be rank stupidity, but where is the copy control > > finding? The only references I can find to 1201(b) in Kaplan's > > opinion are in the footnotes --- footnote 133 mentions that the > > plaintiffs "rely on" it, but includes no argument; the rest just > > note that various safe harbors apply only to 1201(a). > > I didn't find a place where Kaplan broke out a specific finding > on copy control, but footnotes like footnote 154 > [after finding defendants did not meet the requirements of 1201(g)] > "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)." > and footnote 157 > "Like section 1201(g), moreover, Section 1201(j) provides no defense > to a Section 1201(b) claim." > > only make sense to me if Kaplan had found that DeCSS violated > 1201(b) as well as 1201(a)... Also, Kaplan's order (page 2) > tells defendants to stop trafficking in anything that circumvents > CSS, anything that "effectively controls accesS" or anything > that "effectively protects that plaintiffs' rights to control > whether an end user can reproduce, manufacture, adapt, publicly > perform, and/or distribute unauthorized copies..." > (the second part comes from 1201(b), does it not?) This latter point is good and needs to be in the outline. Kaplan did not judge the facts in copy control. He did not weigh them separately from access control. Because if he had done so he would have to place fair use somewhere in "plaintiff's rights to control whether an end user can reproduce..." A technological means of copy control cannot prevent anyone from "adapting" a DVD to a novel, for example. This is just irrelevant to CSS and DeCSS. Plaintiffs have been awarded a perpetual copyright here on the flimsiest of grounds, and what's more, perpetual copyright-like control of all use of the product once sold. All I can think of is that Kaplan assumed CSS was both access control and copy control, because they both used encryption and both had keys. Might this oversight on his part be grounds for reversal and retrial? From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 20:17:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20254 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:17:23 -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 UAA20251 for ; Tue, 12 Sep 2000 20:17:22 -0400 Received: from ppp.anonymizer.com (c04-172.015.popsite.net [64.24.75.172]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA00023 for ; Tue, 12 Sep 2000 17:20:20 -0700 (PDT) Message-Id: <4.3.2.7.2.20000912165711.00abc960@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 12 Sep 2000 17:07:38 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000912221127.11600.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 UAA20252 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 03:11 PM 9/12/2000 -0700, Bryan Taylor wrote: >--- Ravi Nanavati wrote: > > > Look at the (amended) complaint on the openlaw site: > > >http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0126-am-complaint.html > > They clearly allege the basis of a 1201(b) claim (control of > > exclusive rights) and, in paragraph 31, claim defendants > > are violating section 1201 (not just 1201(a), as they cited > > earlier), which includes 1201(b). I agree they don't highlight > > the 1201(b) claim, but it appears to be there (unless > > there are rules about exactly how specific they need and section 1201 > > isn't specific enough, which would be a great relief). > >Thanks for the citation. I just don't see support there for a (b)(1) >claim. Paragraph 31 of the amended complaint is all they need. >They have a section labelled >Claim for Relief (Violation of Provisions Governing Circumvention of >Copyright Protection Systems, 17 U.S.C. § 1201 et seq.) > >It comprises items 26 to 32 (item 26 incorporates 1-25). Item 27 lists >(a)(2)(A,B,C), and the following items state the allegation that the >conditions there-in are met. Nowhere in 26 to 32 (or 1-25) is (b)(1) >mentioned. By the fact that it is not treated similarly to (a)(2), I >think we can decide that it is not a claim for relief as a cause of >action. > >I don't know what "et seq." means in "17 U.S.C. §§ 1201 et seq. " >(Anyone?) I would interpret this whole phrase as a reference in >shorthand to the causes of action enumerated therein at paragraph 27, >namely 1201(a)(2)(A,B,C). "et seq." == "et sequiter" == "and following". It means sections (plural) 1201 and following. Technically incorrect usage, since that means sections 1202, 1203, etc., not the subparts of 1201. But they have alleged enough to proceed on 1201(b)(1). Great specificity is not required. -------------------------------------------------------------------- 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 Sep 12 20:17:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20244 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:17:18 -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 UAA20238 for ; Tue, 12 Sep 2000 20:17:16 -0400 Received: from ppp.anonymizer.com (c04-172.015.popsite.net [64.24.75.172]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA00006 for ; Tue, 12 Sep 2000 17:20:14 -0700 (PDT) Message-Id: <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 12 Sep 2000 17:18:13 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39BEA3F5.D25A7DE6@travel-net.com> References: <20000912195716.17601.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 05:45 PM 9/12/2000 -0400, the world-renowned Dan Steinberg (well, he did just make an appearance on Farber's IP list) wrote: >Well Im going to wait a bit for someone who actually swims in an appellate >court to weigh in before answering this, ok? Hmm, sounds perilously close to compelling my speech. ;-) >Bryan Taylor wrote: > > > --- Dan Steinberg wrote: > > > > II) Defendants had legitimate purposes > > > Specifically how do we go down the road in (II) without stumbling all > > > over those pesky facts? Don;t get me wrong. I'm not objecting to > > > anything (yet). I'm just concerned about how to get to the > > > desired result. > > > > If I understand civil procedure correctly, we can't introduce new > > evidence into the record. Correct. > We can, however, challenge Kaplan's findings > > of fact when they are entirely unsupported by the record of admissible > > evidence. Correct. > I think that the judge gets to decide which piece of evidence > > he weights the most, but he cannot base findings of fact on facts not > > properly admitted into evidence (this is an abuse of his discretion). Mostly correct. Remember that experts can rely on hearsay in forming their opinions, they can state admissible testimony on things which lay witnesses cannot. So when you say "not properly admitted into evidence", literally, you must consider the source. > > > > In order to make this point we have to say "The evidence says A,B,C. > > Kaplan found X. Kaplan abused his discretion, since none of A,B,C > > supports X." If Kaplan relied on D to support X, but D is inadmissible, > > this is also grounds for challenging X. Yes, but .... First, even if D is theoretically inadmissible, it actually is inadmissible only if the proper objection to its admissibility was made and overruled. Objections must be raised at the right time during trial, not on appeal. Use it or lose it. Second, suppose the right objection was made and was overruled. You only get the appellate court to consider the inadmissibility of D after it rules on the objection, if asked. It is not the place of this group, or any other amici, to ask the appellate court to rule on evidentiary objections, that is the job of the parties themselves. So if an argument depends on the appellate court reversing one of Kaplan's evidentiary rulings, it really is not an appropriate argument for an amicus to make. -------------------------------------------------------------------- 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 Sep 12 20:23:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20495 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:23:01 -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 UAA20492 for ; Tue, 12 Sep 2000 20:23:01 -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 UAA28202 for ; Tue, 12 Sep 2000 20:24:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA02461; Tue, 12 Sep 2000 20:24:04 -0400 (EDT) Date: Tue, 12 Sep 2000 20:24:04 -0400 (EDT) Message-Id: <200009130024.UAA02461@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Two interesting quotes from the Judiciary Comitee report In-Reply-To: <000101c01d11$2eeff060$87ce0593@ia.nsc.com> References: <000101c01d11$2eeff060$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf writes: > The second quote shows that even with broad exemptions for public domain > works (for example), this doesn't help DeCSS because the committe report > reflects the same bizarre thinking "we can provided a right, but proscribe > all means to exercise that right" which the P's argued regarding fair use. > The "of course you can going swimming but don't go near the water" logic > embodied in this second section doesn't pass the giggle test, shouldn't > stand up to constitutional scrutiny, and somehow passed congress -- hmmmm. > However it is probably outside the scope of what one could argue in this > particular case. It doesn't help us, though the D's should be aware that > the P's may throw this in to show that their similar argument about fair use > reflects congressional intent even if it is nonsense. Well, the defense team seems committed to a fair use defense even in this case. FWIW, Judge Kaplan's opinion has at least done us the favor of condensing the "logic" here down to a concise, quotable nugget of prose: 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 unless Congress' decision contravenes the Constitution, a matter to which the Court turns below. (p. 49) He seems unaware that fair use is itself of Constitutional dimension. And the notion that people with no legal means to exercise a right have not been deprived of that right is, well, ... Kaplanesque. But there it is, and you can find it in the legislative history as well, repeatedly. It's even plainer in an excerpt like: 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. (Congressional Record, p. H7098, Aug. 4 1998) than it is in the Judiciary section-by-section analysis. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 20:34:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20791 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:34:00 -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 UAA20788 for ; Tue, 12 Sep 2000 20:33:58 -0400 Received: from ppp.anonymizer.com (c04-172.015.popsite.net [64.24.75.172]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA01191 for ; Tue, 12 Sep 2000 17:36:56 -0700 (PDT) Message-Id: <4.3.2.7.2.20000912173146.00c17470@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 12 Sep 2000 17:34:54 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> References: <39BEA3F5.D25A7DE6@travel-net.com> <20000912195716.17601.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 05:18 PM 9/12/2000 -0700, James S. Tyre wrote: >>Bryan Taylor wrote: > >> > >> > In order to make this point we have to say "The evidence says A,B,C. >> > Kaplan found X. Kaplan abused his discretion, since none of A,B,C >> > supports X." If Kaplan relied on D to support X, but D is inadmissible, >> > this is also grounds for challenging X. > >Yes, but .... > >First, even if D is theoretically inadmissible, it actually is >inadmissible only if the proper objection to its admissibility was made >and overruled. Objections must be raised at the right time during trial, >not on appeal. Use it or lose it. Hmm, that didn't come out too well, did it? "...it actually is inadmissible only if the proper objection to its admissibility was made and sustained or improperly overruled...." >Second, suppose the right objection was made and was overruled. Again, "improperly" overruled. Sorry. > You only get the appellate court to consider the inadmissibility of D > after it rules on the objection, if asked. It is not the place of this > group, or any other amici, to ask the appellate court to rule on > evidentiary objections, that is the job of the parties themselves. So if > an argument depends on the appellate court reversing one of Kaplan's > evidentiary rulings, it really is not an appropriate argument for an > amicus to make. -------------------------------------------------------------------- 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 "Unflattering though it may be, the truth is that lawyers in the American system are officially fungible." --Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 448 "Money is fungible." --In re Marriage of Purnel (1997) 52 Cal.App.4th 527, 539 "Send lawyers, guns and money, the shit has hit the fan." --Warren Zevon From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 20:54:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21412 for dvd-discuss-outgoing; Tue, 12 Sep 2000 20:54:39 -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 UAA21409 for ; Tue, 12 Sep 2000 20:54:38 -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 UAA27206; Tue, 12 Sep 2000 20:55:40 -0400 (EDT) Message-ID: <39BED11F.34719BBA@mit.edu> Date: Tue, 12 Sep 2000 20:58:07 -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] Partial Outline for 2nd Circuit Amicus Brief References: <4.3.2.7.2.20000912165711.00abc960@cyberpass.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 "James S. Tyre" wrote: > > At 03:11 PM 9/12/2000 -0700, Bryan Taylor wrote: > > >--- Ravi Nanavati wrote: > > > > > Look at the (amended) complaint on the openlaw site: > > > > >http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0126-am-complaint.html > > > They clearly allege the basis of a 1201(b) claim (control of > > > exclusive rights) and, in paragraph 31, claim defendants > > > are violating section 1201 (not just 1201(a), as they cited > > > earlier), which includes 1201(b). I agree they don't highlight > > > the 1201(b) claim, but it appears to be there (unless > > > there are rules about exactly how specific they need and section 1201 > > > isn't specific enough, which would be a great relief). > > > >Thanks for the citation. I just don't see support there for a (b)(1) > >claim. > > Paragraph 31 of the amended complaint is all they need. On to the next hope of not dealing with copy control (since I'm scared we don't have the factual record to deal with it): Do we catch a break because Kaplan did not specifically rule on DeCSS violating 1201(b), even if his opinion makes clear he thinks there has been a 1201(b) violation? Kaplan seems to be taking the position: I see a 1201(a) violation, so I'm not going into the 1201(b) issues. Since we don't even know the specific facts and reasoning Kaplan used to conclude a 1201(b) violation it would seem bizarre if we had to "shadowbox" them on appeal, but anything is possible. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 21:06:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22374 for dvd-discuss-outgoing; Tue, 12 Sep 2000 21:06:11 -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 VAA22371 for ; Tue, 12 Sep 2000 21:06:10 -0400 Message-ID: <20000913010643.27877.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Tue, 12 Sep 2000 18:06:43 PDT Date: Tue, 12 Sep 2000 18:06:43 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 --- "James S. Tyre" wrote: > >Thanks for the citation. I just don't see support there for a (b)(1) > >claim. > Paragraph 31 of the amended complaint is all they need. Well, then I'm VERY confused. Am I looking at the right thing? 31. By offering to the public, providing, or otherwise trafficking in DeCSS, Defendants have violated the provisions governing Circumvention of Copyright Protection Systems set forth in the Copyright Act, 17 U.S.C. §§ 1201 et seq. Actually, I guess that 29(b) combined with 30 are really the ones that spell it out. This thread makes me uneasy because nobody ever really talked about (b)(1) during the trial. In fact, it's bizarre to be asking about what the cause of action was in a case that has concluded. > But they have alleged enough to proceed on 1201(b)(1). Great > specificity is not required. Let me turn back to Kaplan, then. Did he ever say 2600 violated (b)(1)? __________________________________________________ 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 Sep 12 21:10:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA22550 for dvd-discuss-outgoing; Tue, 12 Sep 2000 21:10:24 -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 VAA22547 for ; Tue, 12 Sep 2000 21:10:23 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id TAA17622 for ; Tue, 12 Sep 2000 19:11:25 -0600 Date: Tue, 12 Sep 2000 19:11:25 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <00091204243401.01644@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 It might be a good thing to throw in as a _reductio ad absurdum_ point. "If we were to follow the line of Kaplan's reasoning, it is self evident that his own ruling is functional and logically may be seen as a circumvention device in its own right..." On Tue, 12 Sep 2000, D. C. Sessions wrote: > On Tue, 12 Sep 2000, Tom Vogt wrote: > > > is legalese considered speech? > > most legalese is pretty much chinese to the average person, but it is still > > chosen by lawyers as a means of communication. probably because they > > believe it is better than english for that purpose. > > I've broght this up before. Judge Kaplan's Decision meets his test for > functionality (do lawyers understand the concept of recursion?) and > in fact (IANAL) its own wording could be applied directly to itself to > conclude that it's only subject to intermediate scrutiny. > > All of the appeals court judges that I know have killer senses of humor, > but are like engineers in that their tastes in humor tend to leave most > folks puzzled. One wonders whether the Circuit would be tickled at > this approach. I sincerely doubt that they'd entertain for an instant that > legal decisions aren't subject to strict scrutiny. > > -- EMACS == Eight Megabytes And Constantly Swapping Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 22:03:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24614 for dvd-discuss-outgoing; Tue, 12 Sep 2000 22:03:39 -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 WAA24611 for ; Tue, 12 Sep 2000 22:03:38 -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 WAA06341 for ; Tue, 12 Sep 2000 22:04:40 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA09111; Tue, 12 Sep 2000 22:04:40 -0400 (EDT) Date: Tue, 12 Sep 2000 22:04:40 -0400 (EDT) Message-Id: <200009130204.WAA09111@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000913010643.27877.qmail@web513.mail.yahoo.com> References: <20000913010643.27877.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: > > But they have alleged enough to proceed on 1201(b)(1). Great > > specificity is not required. > > Let me turn back to Kaplan, then. Did he ever say 2600 violated (b)(1)? Not anyplace that I can see. Once again: the only explicit references to 1201(b) that I can find in his opinion are in footnotes; fn 133 says that the plaintiffs "rely on" 1201(b) but contains nothing resembling an argument that it applies to CSS, and the others just note that various safe harbors apply only to 1201(a), not (b). And his final judgment enjoins against distribution of DeCSS or "any other technical measure adopted by plaintiffs" that meets 1201(a) or (b) criteria, but does not specifically describe CSS as a copy control. Unless acroread's "search" function is playing tricks on me, there isn't much there... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 12 22:44:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA26049 for dvd-discuss-outgoing; Tue, 12 Sep 2000 22:44:25 -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 WAA26046 for ; Tue, 12 Sep 2000 22:44:24 -0400 Received: from ip71.bedford8.ma.pub-ip.psi.net ([38.32.78.71]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Z2YA-0007cx-00 for dvd-discuss@eon.law.harvard.edu; Tue, 12 Sep 2000 22:45:27 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two interesting quotes from the Judiciary Comitee report Date: Tue, 12 Sep 2000 22:48:22 -0400 Message-ID: References: <000101c01d11$2eeff060$87ce0593@ia.nsc.com> <200009130024.UAA02461@soggy-fibers.ai.mit.edu> In-Reply-To: <200009130024.UAA02461@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 WAA26047 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 12 Sep 2000 20:24:04 -0400 (EDT), Robert S. Thau wrote: >FWIW, Judge Kaplan's opinion has at least done us the favor of >condensing the "logic" here down to a concise, quotable nugget of >prose: > > 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 unless Congress' decision contravenes the > Constitution, a matter to which the Court turns below. (p. 49) > >He seems unaware that fair use is itself of Constitutional dimension. >And the notion that people with no legal means to exercise a right >have not been deprived of that right is, well, ... Kaplanesque. But Because the ban on fair use is a de facto one, might Kaplan be suggesting a de facto solution? Is the message that no one should distribute DeCSS, but that anyone who needs it should just go and find it? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 00:07:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28584 for dvd-discuss-outgoing; Wed, 13 Sep 2000 00:07:59 -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 AAA28581 for ; Wed, 13 Sep 2000 00:07:58 -0400 Received: from ip71.bedford8.ma.pub-ip.psi.net ([38.32.78.71]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Z3qy-0007lD-00 for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 00:08:56 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] article on DVRs and taping Date: Wed, 13 Sep 2000 00:11:53 -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 AAA28582 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just came across this article from last Friday... Is Taping a TV Movie a God-Given Right? http://www.idg.net/go.cgi?id=313384 [may require free subscription(?)] Next week, the Federal Communications Commission is expected to hand down its first decision aimed at preventing the Napsterization of the movie business. The Commission's action, which so far has escaped widespread attention, is the result of a push by the movie industry to prevent people from swapping digital copies of movies shown on TV – or worse, pirating them to the masses. At issue: In the future, should consumers be able to tape TV shows as easily as they do today? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 01:52:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA31248 for dvd-discuss-outgoing; Wed, 13 Sep 2000 01:52:13 -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 BAA31245 for ; Wed, 13 Sep 2000 01:52:03 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Z5Tm-0007IZ-00; Wed, 13 Sep 2000 07:53:06 +0200 Received: from localhost by sites.inka.de with local id 13Z5Tm-0006Pn-00; Wed, 13 Sep 2000 07:53:06 +0200 Date: Wed, 13 Sep 2000 07:53:06 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] new DeCSS tool Message-ID: <20000913075306.A24586@inka.de> References: <20000912203011.13842.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000912203011.13842.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Sep 12, 2000 at 01:30:11PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 12, 2000 at 01:30:11PM -0700, Bryan Taylor wrote: > Someone will invent a web-site for funding/tipping > underground artists by keeping track of who donated and when. Already been done: http://www.fairtunes.com/ 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 Sep 13 03:17:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA00521 for dvd-discuss-outgoing; Wed, 13 Sep 2000 03:17:04 -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 DAA00518 for ; Wed, 13 Sep 2000 03:17:03 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 13 Sep 2000 09:13:50 +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, 13 Sep 2000 08:48:42 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 13 Sep 2000 08:48:42 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] mpaa23 details Message-ID: <20000913084842.B3257@lemuria.org> References: <20000912233701.13761.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000912233701.13761.qmail@web513.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: > It seems like the MPAA is already straining their bandwidth a little to > get these letters out. Perhaps someone should create a how-to on > responding to mass mailed cease and desist letters. same as for spam - not at all? don't confirm that the e-mail address works. if you run the mail system, maybe sending back a forged "no such user" reply works. :) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 04:01:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA01484 for dvd-discuss-outgoing; Wed, 13 Sep 2000 04:01:42 -0400 Received: from web109.yahoomail.com (web109.yahoomail.com [205.180.60.76]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id EAA01481 for ; Wed, 13 Sep 2000 04:01:40 -0400 Received: (qmail 24934 invoked by uid 60001); 13 Sep 2000 08:02:39 -0000 Message-ID: <20000913080239.24933.qmail@web109.yahoomail.com> Received: from [128.122.253.144] by web109.yahoomail.com; Wed, 13 Sep 2000 01:02:39 PDT Date: Wed, 13 Sep 2000 01:02:39 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] Copyright discussion 9.12 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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/0,1283,38707,00.html Excerpted from above article: "David Corwin, senior counsel for the Motion Picture Association of America, said Monday that the controversial Digital Millennium Copyright Act, which Congress approved in October 1998, is "near and dear to our heart." He also said that the movie industry is "actively engaged in things aimed at propagating laws that will help us out," but declined to elaborate. Corwin said that Hollywood's real battle was not in federal court or in Congress -- but in the court of public opinion. The MPAA is in the unfortunate position, he said, of "trying to convince the public that piracy is wrong here." " __________________________________________________ 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 Sep 13 09:19:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA08181 for dvd-discuss-outgoing; Wed, 13 Sep 2000 09:19:34 -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 JAA08178 for ; Wed, 13 Sep 2000 09:19:33 -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 JAA13069 for ; Wed, 13 Sep 2000 09:17:12 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> References: <20000912195716.17601.qmail@web515.mail.yahoo.com> <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> Date: Wed, 13 Sep 2000 09:12:17 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus 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 At 5:18 PM -0700 9/12/2000, James S. Tyre wrote: >> > >>> If I understand civil procedure correctly, we can't introduce new >>> evidence into the record. > >Correct. The Amicus brief http://dl.napster.com/amicus_law.pdf submitted to the 9th Circuit by a group of law professors in support of the Napster appeal has an interesting footnote (#2) on page 4. It says "Amici hereby respectfully request that the court take notice of the publicly available documents cited herein. ..." and goes on to cite a fairly recent case (March 2000) in support of this request. INAL, but that seems to suggest that we could cite published papers and articles that bolster our positions (as the law professors do). The Napster briefs make interesting reading. Below is a posting that has links to them. Arnold Reinhold At 3:17 PM -0400 9/10/2000, R. A. Hettinga wrote: >Date: Sun, 10 Sep 2000 11:52:10 -0700 >Reply-To: Law & Policy of Computer Communications > >Sender: Law & Policy of Computer Communications > >From: John Muller >Subject: Napster RIAA amicus briefs >To: CYBERIA-L@LISTSERV.AOL.COM > >The Federal Government, the movies and baseball have all weighed in against >Napster. What's next, Mom and apple pie? The Department of Justice brief >can be found at http://www.politechbot.com/docs/napster-amicus.html, thanks >to Declan McCullagh. The Motion Picture Association of America brief, >joined in by the Office of the Commisioner of Baseball, the National >Basketball Association and a host of other associations, is at >http://www.mpaa.org/press/Final_Napster_Amicus_Brief.htm. > >Does anybody know how the RIAA happened to pick the great songwriters Jerry >Leiber and Mike Stoller as named plaintiffs against Napster? Sort of sad >to see these great artists of youthful energy now on the side of the >establishment. Maybe they need a shot of Love Potion #9. > >For the briefs on Napster's side, including the amended law professors' >brief that was missing a few days ago, go to >http://www.napster.com/pressroom/legal.html. > >Anybody spotted the Judge's decision in Universal vs. MP3.com on the Web >anywhere? > From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 09:40:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA08880 for dvd-discuss-outgoing; Wed, 13 Sep 2000 09:40:20 -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 JAA08877 for ; Wed, 13 Sep 2000 09:40:18 -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 e8DDfNO03323 for ; Wed, 13 Sep 2000 08:41:23 -0500 (CDT) Received: from localhost (sytobinh@localhost) by harper.uchicago.edu (8.10.1/8.10.1) with ESMTP id e8DDfLj19882 for ; Wed, 13 Sep 2000 08:41:21 -0500 (CDT) X-Authentication-Warning: harper.uchicago.edu: sytobinh owned process doing -bs Date: Wed, 13 Sep 2000 08:41:21 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <20000913010643.27877.qmail@web513.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 1201(b) 1201(b) is only mentioned once in the trial transcript, on page 985 (day 6), but Garbus actually meant 1201(c)(3) - there is no 1201(b)(3). Other interesting mentions of 1201(b): However, Section 1201(b) is essentially not implicated in this case. Plaintiffs have not alleged that any of their copyrights were infringed as a result of defendants' actions, and have in fact stipulated that they are not aware of any instances at all of DeCSS being used to make or distribute illegal copies of a DVD movie; nor have plaintiffs alleged any other violation of their "rights." 1201(b) is not referenced in the injunction opinon. However, the best quote on this subject if from the injunction hearing: MS. GROSS: Then (b)(1)(A) we're talking about here-- THE COURT: Now what about-- MS. GROSS: What we're talking about-- THE COURT: Ms. Gross, don't get carried away. What about (a)(2), which is the statute you're being sued under? I mean, I'm sure the Internal Revenue Code isn't a big problem for you on this either. or, later in that same document THE COURT: Under (a)(2) they don't need to. That argument might have some merit if it were a (b)(1) suit or a (b)(2) suit, but it isn't. However, it would seem that it is a different matter later in the trial. The original part 27 of the complaint: 27. The Copyright Act, Title 17 U.S.C. Section 1201(a)(2), provides that: [n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (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 persons knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. the amended part 25 (which is the same as the old 27) reads as follows: 25. The Copyright Act, Title 17 U.S.C. 1201(a)(2), provides that: [n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (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 Copyright Act, Title 17 U.S.C. 1201(b) provides similar prohibitions against the manufacture, importation or provision of any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of cricumventing a technological measure that effectively protgects the rights of copyright owners. The last paragraph is the important one. Also in the amended complaint, their prayer for relief, 1(b)(i) reads as follows: (i) is primarily designed or produced for the purpose of circumventing, or circumventing the protection afforded by, CSS, or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof, "or effectively protects the Plaintiffs' rights" seems a clear (b) claim. In the opinion, the only references to (b) that are significant are when Kaplan dismisses 1201(g) and (j) as defenses since they do not apply to a (b) claim. This would imply that he feels the defense must respond to a (b) claim. Most damning, however, is that in the final order (binding only on 2600) he adopts the language of amdeded complain paragraph 25 almost verbatim: "The Remaining Defendants .. . are permanently enjoined and restrained from . . . postin on any Internet web site . . . any technology ... that ... is primarly designed ... for the purpose of circumventing ... CSS, or any other technological measure ... that ... effectively protects the plaintiffs' rights to control ... their copyrighted works." In my view, this is a clear 1201(b) injunction. So, in sum, we very much need to deal with (b). Kinda too bad, since it was never discussed at trial. Obviously Kaplan wasn't checking while he copied the complaint into his injunction. :-( sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 10:16:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10796 for dvd-discuss-outgoing; Wed, 13 Sep 2000 10:16:17 -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 KAA10793 for ; Wed, 13 Sep 2000 10:16:15 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id KAA21155 for ; Wed, 13 Sep 2000 10:17:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA00440; Wed, 13 Sep 2000 10:17:19 -0400 (EDT) Date: Wed, 13 Sep 2000 10:17:19 -0400 (EDT) Message-Id: <200009131417.KAA00440@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Two interesting quotes from the Judiciary Comitee report In-Reply-To: References: <000101c01d11$2eeff060$87ce0593@ia.nsc.com> <200009130024.UAA02461@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson writes: > On Tue, 12 Sep 2000 20:24:04 -0400 (EDT), Robert S. Thau wrote: > > >FWIW, Judge Kaplan's opinion has at least done us the favor of > >condensing the "logic" here down to a concise, quotable nugget of > >prose: > > > > 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 unless Congress' decision contravenes the > > Constitution, a matter to which the Court turns below. (p. 49) > > Because the ban on fair use is a de facto one, might Kaplan > be suggesting a de facto solution? > > Is the message that no one should distribute DeCSS, but that > anyone who needs it should just go and find it? Not quite --- the message is that anyone who needs DeCSS for fair-use purposes should write it themselves. And to give Kaplan his due, his analysis here follows legislative intent, as reflected in debate, and in these committee reports, and in the law itself. For instance, see 1201(d), which allows non-profit libraries to circumvent the 1201(a) access control on a work for certain (not too practical) purposes, but specifically does *not* excempt them from the trafficing ban, even if they're only "trafficing" to another non-profit library. Actually, I just looked, and it's even weirder than that --- 1201(d)(4) specifically states that a library may not *manufacture* a circumvention device, even though (d)(1) specifically grants a (conditional) right to circumvent. "You can swim; just don't go near the water" indeed. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 10:30:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11213 for dvd-discuss-outgoing; Wed, 13 Sep 2000 10:30:26 -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 KAA11210 for ; Wed, 13 Sep 2000 10:30:22 -0400 Received: from travel-net.com (trj106.travel-net.com [207.176.160.106]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id KAA30771 for ; Wed, 13 Sep 2000 10:32:23 -0400 Message-ID: <39BF8E1A.561C087A@travel-net.com> Date: Wed, 13 Sep 2000 10:24:26 -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] Partial Outline for 2nd Circuit Amicus Brief References: <20000912195716.17601.qmail@web515.mail.yahoo.com> <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Arnold G. Reinhold" wrote: > At 5:18 PM -0700 9/12/2000, James S. Tyre wrote: > >> > > >>> If I understand civil procedure correctly, we can't introduce new > >>> evidence into the record. > > > >Correct. > > The Amicus brief http://dl.napster.com/amicus_law.pdf submitted to > the 9th Circuit by a group of law professors in support of the > Napster appeal has an interesting footnote (#2) on page 4. It says > "Amici hereby respectfully request that the court take notice of the > publicly available documents cited herein. ..." and goes on to cite a > fairly recent case (March 2000) in support of this request. > > INAL, but that seems to suggest that we could cite published papers > and articles that bolster our positions (as the law professors do). > > The Napster briefs make interesting reading. Below is a posting that > has links to them. > > Arnold Reinhold > > At 3:17 PM -0400 9/10/2000, R. A. Hettinga wrote: > >Date: Sun, 10 Sep 2000 11:52:10 -0700 > >Reply-To: Law & Policy of Computer Communications > > > >Sender: Law & Policy of Computer Communications > > > >From: John Muller > >Subject: Napster RIAA amicus briefs > >To: CYBERIA-L@LISTSERV.AOL.COM > > > >The Federal Government, the movies and baseball have all weighed in against > >Napster. What's next, Mom and apple pie? The Department of Justice brief > >can be found at http://www.politechbot.com/docs/napster-amicus.html, thanks > >to Declan McCullagh. The Motion Picture Association of America brief, > >joined in by the Office of the Commisioner of Baseball, the National > >Basketball Association and a host of other associations, is at > >http://www.mpaa.org/press/Final_Napster_Amicus_Brief.htm. > > > >Does anybody know how the RIAA happened to pick the great songwriters Jerry > >Leiber and Mike Stoller as named plaintiffs against Napster? Sort of sad > >to see these great artists of youthful energy now on the side of the > >establishment. Maybe they need a shot of Love Potion #9. > > > >For the briefs on Napster's side, including the amended law professors' > >brief that was missing a few days ago, go to > >http://www.napster.com/pressroom/legal.html. > > > >Anybody spotted the Judge's decision in Universal vs. MP3.com on the Web > >anywhere? > > OK. I take the hint. no compelled speech today.... Perhaps I'm missing something but I dont see this as out of the ordinary. There is certainly nothing wrong with cites to support points of law. That's done all the time and not considered new evidence. And I dont believe new facts in the case are being introduced unless the cited case is somehow separate litigation between the parties (and yes virginia there are rules for that but we wont get into it today unless James feels like it). The point is: if it could be assumed that all possible arguments had raised in round one, there would be no need to clog the court system with this thing we call appeals process. we just cant introduce (in general) new evidence. Consider the following hypothetical in an appeal of ai injunctive ruling denying a particular pokemon the right to contract for private post-battle care: "Judge pikachu erred in ruling that the pokemon protection act was public policy thus denying my client squirtle the right to contract for private care. See Charizard vs. Dragonite 9 PSC 17 (2000), where a private contract for care was upheld" In my hypo, the brief cites another case to support the argument that the appellant shouldnt be precluded from entering into a private contract. I deliberately chose a hypo where its easy to blur facts because the parties in the cited case are also pokémon. but...... all pokemon are different!!!! (or so Im told) so the facts in the cited case are not being introduced as facts in the case under appeal. Certainly in a cite, there will be a fact pattern that is used to illustrate a point. These facts are in support of a point of law and (usually) irrelevant to the case being appealed. But they were certainly admissible and relevant to the case being cited. The footnote on p4 of the Napster brief cites Federal Rules of Evidence i.e. a statute, then a case in support of a particular argument. It was nice to have an excuse to read the Napster brief. I hadn't gotten around to it before. Thanks for reminding me. Dan p.s. if anyone has a Bluebook rule for citation of pokémon cases I'll eat it!!! -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 10:33:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11383 for dvd-discuss-outgoing; Wed, 13 Sep 2000 10:33:46 -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 KAA11380 for ; Wed, 13 Sep 2000 10:33:46 -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 KAA23335 for ; Wed, 13 Sep 2000 10:34:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA06744; Wed, 13 Sep 2000 10:34:50 -0400 (EDT) Date: Wed, 13 Sep 2000 10:34:50 -0400 (EDT) Message-Id: <200009131434.KAA06744@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: <39BED11F.34719BBA@mit.edu> References: <4.3.2.7.2.20000912165711.00abc960@cyberpass.net> <39BED11F.34719BBA@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > On to the next hope of not dealing with copy control > (since I'm scared we don't have the factual record to > deal with it): Well, they're the ones who have to demonstrate that CSS acts as a copy control, so a lack of facts hurts them at least as much as us. Regardless, the copy-control, such as it is, stems solely from their right to license, so I think we can argue, very roughly, as follows: III') DeCSS should not be banned under the copy control provisions either A) Copying at issue is copying over the Internet, as stressed in P's briefs B) Such copying is enabled by the availability of digital copies C) CSS itself, as a technical measure, does nothing to prevent such copies 1) Output of CSS is digital data 2) "Ripper tools" discussed at trial make that data available from a licensed player without in any way impairing the function of licensed CSS D) Copy-control from CSS is not a function of the device itself, but solely of the P's supposed right to license it. E) Recognizing such a right brings us back to the full parade of horribles of the "authorized device" of 1201(a). The only way to avoid these is to read 1201(b) *in the manner of the Judiciary analysis*, as protecting copy control when it is *the function of the device*; copy control is not the technical function of CSS, as demonstrated by the ripper tools. I haven't even mentioned all the other ways that you can get a low-res "Divxable" digital copy out of a licensed player, which could also be used to argue that CSS doesn't effectively prevent copying over the Internet (as judged, once again, by what it achieves). There are also horribles specific to 1201(b), since its definition of "copy control" is way overbroad --- *anything* which prevents someone from making a copy meets the test, regardless of how it works or what else it does. A computer virus, for instance, meets the letter of the law's definition. Is Norton AntiVirus a circumvention tool? I guess one might argue in response that it's not, since it has other significant commercial purposes. (The Judiciary section-by-section analysis claims that a brute-force key cracker meets that test, since a corporation that has lost its keys might use it for data recovery, on p. 17. You couldn't make this stuff up if you tried). But it's certainly worrisome... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 10:48:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12034 for dvd-discuss-outgoing; Wed, 13 Sep 2000 10:48:05 -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 KAA12031 for ; Wed, 13 Sep 2000 10:48:04 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id KAA25168 for ; Wed, 13 Sep 2000 10:49:09 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA11881; Wed, 13 Sep 2000 10:49:09 -0400 (EDT) Date: Wed, 13 Sep 2000 10:49:09 -0400 (EDT) Message-Id: <200009131449.KAA11881@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: References: <20000913010643.27877.qmail@web513.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th writes: > > "The Remaining Defendants .. . are permanently enjoined and restrained > from . . . postin on any Internet web site . . . any technology ... that > ... is primarly designed ... for the purpose of circumventing ... CSS, or > any other technological measure ... that ... effectively protects the > plaintiffs' rights to control ... their copyrighted works." > > > In my view, this is a clear 1201(b) injunction. So, in sum, we very much > need to deal with (b). Kinda too bad, since it was never discussed at > trial. Obviously Kaplan wasn't checking while he copied the complaint > into his injunction. :-( I don't read it that way --- it does incluce 1201(b) language, but also refers to "any other technological measure", so 2600 is also enjoined against posting technology which circumvents, say, Macrovision. That doesn't clearly say that CSS *itself* is a copy control, just that if the movie studios use copy controls, 2600 is enjoined against posting technology which circumvents them. That said, though, the big question is whether P's can argue (b) on appeals, even though they effectively didn't at trial. (Kaplan's opinion doesn't even *consider* the question of whether CSS effectively protects a right). Safest to assume that they can, I guess... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 10:56:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12374 for dvd-discuss-outgoing; Wed, 13 Sep 2000 10:56:12 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12371 for ; Wed, 13 Sep 2000 10:56:02 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 07:56:35 -0700 Subject: RE: [dvd-discuss] new DeCSS tool To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 13 Sep 2000 07:56:32 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/13/2000 07:56:35 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Or memorizing what they read on the monitor after the access control system permitted them to view it for the time that there will be no access control systems anymore....What bothers me most about "Jackboots Valenti" is that he doesn't understand the implications of the systems he and his cohorts are creating.....Hitler was just speculation in 1933. "Kroll, Dave" To: "'dvd-discuss@eon.law.harvard.edu'" Sent by: owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: RE: [dvd-discuss] new DeCSS tool 09/12/00 06:01 AM Please respond to dvd-discuss A good speaking voice and a vivid command of English may become a necessary qualification for open source programmers. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. Wow! I just had a flashback to the last scene of (The movie, at least. Don't remember how the novel ends.) _Fahrenheit 451_. All of the resistance members shuffled around, reciting and memorizing "their" novel for the day when books could again be published. How sad. David Kroll QA Coordinator 612-882-6452 Dave_Kroll@cdpoly.com -----Original Message----- From: Sphere [SMTP:sphere1952@mediaone.net] Sent: Monday, September 11, 2000 6:43 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] new DeCSS tool Tom Vogt wrote: > > I have been supplied with a new DeCSS-derivative called "DecVOB" and > put it on my webpage (http://www.lemuria.org/DeCSS/decss.html). > > this tool uses the method from "DeCSS Plus" (frank's divide&conquer > attack) so it does not require a player key. it also outputs the > unencrypted VOB to stdout so that any mpeg-player can show it. > > I have not yet had any time to experiment with this tool, but will do > so soon. this looks like a very interesting thing. Maybe you should make a preemptive strike. Get it translated into English and have someone sing it. Or you could add a bunch of coments to the source code expressing your opinion of the MPAA, DMCA, the best congressmen money can buy, and quisling judges who rule in favor of their clients. (Don't swear, but get real close.) Then just read the code aloud and include the mp3 in the gz. A good speaking voice and a vivid command of English may become a necessary qualification for open source programmers. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 11:02:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12699 for dvd-discuss-outgoing; Wed, 13 Sep 2000 11:02:10 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA12695 for ; Wed, 13 Sep 2000 11:02:07 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 08:01:18 -0700 Subject: Re: [dvd-discuss] new DeCSS tool To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 13 Sep 2000 08:01:16 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/13/2000 08:01:18 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'd say 1984 and Brave New World cover the spectrum. The latter is what I fear the media providers want to give to the world. Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] new DeCSS tool arvard.edu 09/12/00 06:11 AM Please respond to dvd-discuss "Kroll, Dave" wrote: > > A good speaking voice and a vivid command > of English may become a necessary > qualification for open source programmers. > > -- > Sphere. > > Government has no legitimate interest in > protecting a monopoly from free speech. > > Wow! I just had a flashback to the last scene of > (The movie, at least. Don't remember how the > novel ends.) _Fahrenheit 451_. All of the > resistance members shuffled around, reciting and > memorizing "their" novel for the day when books > could again be published. > > How sad. > > David Kroll > QA Coordinator > 612-882-6452 > Dave_Kroll@cdpoly.com > It was a Good movie. It stuck to the book. You can bring in quite a few classic anti-utopias here: 1984, Fahrenheit 451, Neuromancer -- maybe even Brave New World. "War is Peace Freedom is Slavery Ignorance is Truth" "What book are you?" "Ice" -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 11:07:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13091 for dvd-discuss-outgoing; Wed, 13 Sep 2000 11:07:34 -0400 Received: from thud.reric.net (sepp-host210.dsl.visi.com [209.98.241.210]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA13088 for ; Wed, 13 Sep 2000 11:07:33 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id KAA02635 for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 10:08:30 -0500 Date: Wed, 13 Sep 2000 10:08:30 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Amicus brief general question Message-ID: <20000913100830.A2598@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 A general question on the proposed amicus brief: Does the range of arguments in the brief have to be a subset of the arguments made by the defense attorneys? I mean, if Garbus/FGKS decide, for example, not to make a "misuse of copyright" argument, does that mean that the same argument would be improper or ignored in a dvd-discuss brief? Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 11:23:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13575 for dvd-discuss-outgoing; Wed, 13 Sep 2000 11:23:42 -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 LAA13572 for ; Wed, 13 Sep 2000 11:23:38 -0400 Received: from travel-net.com (trj106.travel-net.com [207.176.160.106]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id LAA03094 for ; Wed, 13 Sep 2000 11:25:34 -0400 Message-ID: <39BF9A8A.EACF882C@travel-net.com> Date: Wed, 13 Sep 2000 11:17:30 -0400 From: Dan Steinberg X-Mailer: Mozilla 4.72 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: DVD- DISCUSS Subject: [dvd-discuss] someone already post this? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu TOURETZKY ON DECSS (and other stories) http://www.salon.com/tech/feature/2000/09/13/touretzky/index.html -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 11:57:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14475 for dvd-discuss-outgoing; Wed, 13 Sep 2000 11:57:00 -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 LAA14472 for ; Wed, 13 Sep 2000 11:56:58 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 13 Sep 2000 17:52:29 +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; Wed, 13 Sep 2000 17:13:35 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 13 Sep 2000 17:13:35 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Copyright discussion 9.12 Message-ID: <20000913171335.B4421@lemuria.org> References: <20000913080239.24933.qmail@web109.yahoomail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000913080239.24933.qmail@web109.yahoomail.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 "Tuyet A. Ngoc Tran" wrote: > The MPAA is in the unfortunate position, he said, of > "trying to convince the public that piracy is > wrong here." " actually, I believe the MPAA is in the unfortunate position of trying to convince the public that nuking a city because there might be a pirate in it is right. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 12:46:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16036 for dvd-discuss-outgoing; Wed, 13 Sep 2000 12:46:05 -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 MAA16033 for ; Wed, 13 Sep 2000 12:46:01 -0400 Message-ID: <20000913164626.12687.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 13 Sep 2000 09:46:26 PDT Date: Wed, 13 Sep 2000 09:46:26 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 1201(b)(1) Claims To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Given that Kaplan doesn't mention 1201(b)(1) explicitly in his opinion and the plaintiffs didn't mention it either, other than implicitly in their complaint, my recomendation is that we take the attitue that "of course" it wasn't part of the proceeding, which we can support with the Kaplan "but it isn't" quote from the PI hearing that Sam provided. See below. It may be that Plaintiffs wanted to blanket it as fair game for later procedings with the umbrella claims listed in their complaint, but this same document clearly emphasized (a)(2), and everything that has happened since was about (a)(2) and not (b)(1). THE COURT: Under (a)(2) they don't need to. That argument might have some merit if it were a (b)(1) suit or a (b)(2) suit, but it isn't. __________________________________________________ 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 Sep 13 12:56:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16396 for dvd-discuss-outgoing; Wed, 13 Sep 2000 12:56:13 -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 MAA16393 for ; Wed, 13 Sep 2000 12:56:11 -0400 Message-ID: <20000913165645.23189.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 13 Sep 2000 09:56:45 PDT Date: Wed, 13 Sep 2000 09:56:45 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kansas Court rejects ProCD To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Kevin Grierson" posted this news to another mailing list. (I've cut and pasted his text). I'll try to get the opinion. The case is Klocek v. Gateway, Inc., 41 UCCRS 2d 1059, 2000 WL 967459 (D. Kansas, June 15, 2000). Judge Kathryn Vratil has rejected the ProCD ruling of the 7th Circuit in a case involving the sale of a Gateway computer. Judge Vratil reasoned that it was the buyer, not the seller, that was the offeror, and that the seller therefore had the duty under 2-207 to alert the buyer to terms that materially altered the terms of the offer to purchase the computer, such as an arbitration provision, prior to the sale, and to expressly condition the acceptance of the offer to acceptance of the standard 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 Wed Sep 13 13:14:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16967 for dvd-discuss-outgoing; Wed, 13 Sep 2000 13:14:29 -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 NAA16960 for ; Wed, 13 Sep 2000 13:14:28 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id NAA12754 for ; Wed, 13 Sep 2000 13:15:33 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA04502; Wed, 13 Sep 2000 13:15:33 -0400 (EDT) Date: Wed, 13 Sep 2000 13:15:33 -0400 (EDT) Message-Id: <200009131715.NAA04502@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] 1201(b)(1) Claims In-Reply-To: <20000913164626.12687.qmail@web513.mail.yahoo.com> References: <20000913164626.12687.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: > Given that Kaplan doesn't mention 1201(b)(1) explicitly in his opinion > and the plaintiffs didn't mention it either, other than implicitly in > their complaint, my recomendation is that we take the attitue that "of > course" it wasn't part of the proceeding, which we can support with the > Kaplan "but it isn't" quote from the PI hearing that Sam provided. See > below. I'm tempted to agree... "1201 et seq." could also cover 1202, come to think of it, but they haven't exactly built a case for the title keys as "copyright management information". I think the point deserves brief attention, just because the P's talk so much about it. (Remember, their law brief was basically a long rant on the subject; Kaplan had to come up with an actual legal argument for them because they neglected to supply one of their own). But it may be enough to note that, pace Ashcroft, an otherwise legitimate article of commerce (like the LiVid player) does not become a 1201(b) violation just because it exposes a work to the *potential* of unauthorized copying, and that if that were Johansen's purpose, he could have used the "ripper" tools that were already out there (and which he examined and rejected because they *can't* be used to build a player). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 13:38:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17668 for dvd-discuss-outgoing; Wed, 13 Sep 2000 13:38:28 -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 NAA17665 for ; Wed, 13 Sep 2000 13:38:26 -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 NAA25541 for ; Wed, 13 Sep 2000 13:34:13 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <39BF8E1A.561C087A@travel-net.com> References: <20000912195716.17601.qmail@web515.mail.yahoo.com> <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> <39BF8E1A.561C087A@travel-net.com> Date: Wed, 13 Sep 2000 13:30:08 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief 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 NAA17666 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:24 AM -0400 9/13/2000, Dan Steinberg wrote: >"Arnold G. Reinhold" wrote: > >> At 5:18 PM -0700 9/12/2000, James S. Tyre wrote: >> >> > >> >>> If I understand civil procedure correctly, we can't introduce new >> >>> evidence into the record. >> > >> >Correct. >> > > > The Amicus brief http://dl.napster.com/amicus_law.pdf submitted to >> the 9th Circuit by a group of law professors in support of the >> Napster appeal has an interesting footnote (#2) on page 4. It says >> "Amici hereby respectfully request that the court take notice of the >> publicly available documents cited herein. ..." and goes on to cite a >> fairly recent case (March 2000) in support of this request. >> >> INAL, but that seems to suggest that we could cite published papers > > and articles that bolster our positions (as the law professors do). > ... >Perhaps I'm missing something but I dont see this as out of the >ordinary. There >is certainly nothing wrong with cites to support points of law. >That's done all >the time and not considered new evidence. And I dont believe new facts in the >case are being introduced unless the cited case is somehow separate litigation >between the parties (and yes virginia there are rules for that but we wont get >into it today unless James feels like it). > >The point is: if it could be assumed that all possible arguments had raised in >round one, there would be no need to clog the court system with this thing we >call appeals process. we just cant introduce (in general) new evidence. But the law professors in the brief I cite seem to be doing just that. They have a long discussion of peer-to-peer file sharing and how important it is as a new Internet technology, how it's replacing search engines which aren't good enough, and so on, all supported by academic papers and newspaper articles. I don't know what constitutes the Napster original trail record (there was no evidentiary hearing -- this is an appeal of a preliminary injunction), but this stuff appears to be new information, not just "cites to support points of law." Footnote 2 suggests it is appropriate for the appeals court "to look at common usage and understanding, taking judicial notice of such material as may aid [it.]" If we follow the law professors' model, we could point to published articles (there are tons of them) about the importance of Linux and the open source movement, for example. Arnold Reinhold >p.s. if anyone has a Bluebook rule for citation of pokémon cases >I'll eat it!!! > There may be different rules for different type of Pokémon: water, fire, electric, etc. Objectos, who premieres in the fourth pokémon movie will be part of a new class called law pokémon. Objectos goes around saying "I Object, I Object" all the time. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 14:04:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18934 for dvd-discuss-outgoing; Wed, 13 Sep 2000 14:04:36 -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 OAA18931 for ; Wed, 13 Sep 2000 14:04:31 -0400 Message-ID: <20000913180504.4704.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 13 Sep 2000 11:05:04 PDT Date: Wed, 13 Sep 2000 11:05:04 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 re-read Bernstein. It's nice to be reminded of what the truth sounds like, and of the fact that judges occasionally "get it". It turns out that the dissenting judge essentially took the position that Kaplan did, saying software was conduct. Judge Betty Fletcher appropriately shot this down. _______________ Bernstein v USDOJ 97-16686 (9th Cir. 1999) http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/19990506_circuit_decision.html First, the dissent conceives of the exchange of source code among scientists as "conduct." We disagree. The source code at issue here is text intended for human understanding, albeit in a specialized language. To say that the "export" of this text is "conduct " for First Amendment purposes, rather than straightforward scientific "expression," is to call into question all distribution and circulation of scientific texts that communicate ideas by using specialized languages. Of course, source code may be functional as well as expressive. We are not persuaded, however, that that fact transmogrifies the distribution of scientific texts from "expression" into "conduct" deserving of diminished First Amendment protection. Having cast the question as one relating to "conduct," the dissent then takes a second step. Drawing from Lakeside, the dissent asks whether the "conduct" -- the exchange of cryptographic source code -- is "commonly associated with expression." This question the dissent answers in the negative; in other words, the dissent concludes that source code is not used expressively often enough. We find this conclusion somewhat perplexing, as there is nothing in the record to support it. Bernstein has introduced extensive expert evidence to support his contention that source code is frequently used for expressive purposes. The government, however, has failed to introduce anything into the record to rebut this evidence. __________________________________________________ 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 Sep 13 14:58:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20304 for dvd-discuss-outgoing; Wed, 13 Sep 2000 14:58:12 -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 OAA20285 for ; Wed, 13 Sep 2000 14:58:06 -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 e8DIwaX15151 for ; Wed, 13 Sep 2000 14:58:36 -0400 (EDT) Message-ID: <39BFCE5D.2C1123A6@mindspring.com> Date: Wed, 13 Sep 2000 14:58:38 -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] Copyright Office DMCA Summary Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There is a summary of the DMCA on the LOC website. It's old (and non-binding), but it had some interesting things to say about the changes. http://www.loc.gov/copyright/legislation/dmca.pdf In particular, here is the original language of the treaty: Article 11 of the WCT states: Contracting Parties shall provide adequate legal protec-tion and effective legal remedies against the circumven-tion of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. Which shows that the original language allowed one to "restrict acts, in respect of their works, which are not authorized by the authors concerned *** or *** permitted by law." This, IMO, was misguided from the start, in that it explicitly allows an author to apply protections beyond those permitted by copyright law. Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second. This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumvent-ing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited. So, it acknowledges that a situation could exist such that circumvention of a copy control would not be illegal, while circumvention of the access control would be illegal. This is where the P's story of both controls were implemented as one becomes important. What happens when an access control product is tied to a copy control product? Ask Kaplan.... mickeym From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 17:07:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24452 for dvd-discuss-outgoing; Wed, 13 Sep 2000 17:07:08 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA24410 for ; Wed, 13 Sep 2000 17:06:55 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA12516 for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 17:09:29 -0400 Date: Wed, 13 Sep 2000 17:09:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims Message-ID: <20000913170924.C11829@eldritchpress.org> References: <20000913164626.12687.qmail@web513.mail.yahoo.com> <200009131715.NAA04502@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200009131715.NAA04502@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Sep 13, 2000 at 01:15:33PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 13, 2000 at 01:15:33PM -0400, Robert S. Thau wrote: > Bryan Taylor writes: > > Given that Kaplan doesn't mention 1201(b)(1) explicitly in his opinion > > and the plaintiffs didn't mention it either, other than implicitly in > > their complaint, my recomendation is that we take the attitue that "of > > course" it wasn't part of the proceeding, which we can support with the > > Kaplan "but it isn't" quote from the PI hearing that Sam provided. See > > below. > > I'm tempted to agree... "1201 et seq." could also cover 1202, come to > think of it, but they haven't exactly built a case for the title keys > as "copyright management information". > > I think the point deserves brief attention, just because the P's talk > so much about it. (Remember, their law brief was basically a long > rant on the subject; Kaplan had to come up with an actual legal > argument for them because they neglected to supply one of their own). > > But it may be enough to note that, pace Ashcroft, an otherwise > legitimate article of commerce (like the LiVid player) does not become > a 1201(b) violation just because it exposes a work to the *potential* > of unauthorized copying, and that if that were Johansen's purpose, he > could have used the "ripper" tools that were already out there (and > which he examined and rejected because they *can't* be used to build a > player). I would suggest that defense move for a directed remand on the issue that Kaplan failed to hear evidence on 1201(b), and in his decision confuses the two separate clauses, and indeed the technologies of access control and copy control. However, if we go in the amicus brief for the best argument for unconstitutionality, then we might want to develop the copy control argument a bit further. Looking at the Judiciary Comm summary, it is apparent to me that DMCA, in implementing WIPO treaty, goes unconstitutionally too far in the direction of adopting alien natural rights theory of copyright. WIPO can be read as requiring only some form of legal backup for watermarks. However, the movie studios took that and twisted it into a form of "rights management" scheme that goes far beyond the Constitution and is meant (by at least some legislators) to take away the rights of fair use of legally acquired products. That is, the "rights of the copyright holder" in 1201(b) for copy control are understood by MPAA to mean they can prohibit ANY copying (along with other uses not specifically AUTHORIZED or CONSENTED TO by copyright holders). So, reading the copy control part of this case separately, one can easily make the case for the statute being overbroad, directly conflicting with fair use insofar as statute prohibits fair use in making one archival copy of product, and preventing consumer after first sale from ever obtaining the means to exercise fair use. If exceptions in 1201 cannot be applied because of the separation of "trafficking" from the other parts of the statute, then the statute is unconstitutional. What I am arguing is that copy control in 1201(b) is clearly an issue we can argue against. CSS is not copy control technology, in spite of using encryption and keys. We can also argue that access control is similarly unconstitutional, but we still have to answer the point that circumvention of access control is allowed by Kaplan in order to circumvent copy control in the cases of fair use. What I am arguing is that if copy control is interpreted this way it is clearly unconstitutional. There are no grounds for a separate CONSENT of copyright holder as in the case of making an archival copy. No matter what is ruled on appeal about access control and hyperlinks, I believe the copy control part of the statute needs to be found unconstitutional. Defendants can be found not guilty without this matter being addressed. I think it is up to amici to raise it, but I am open to discussion on the matter. Maybe the length of the brief is becoming excessive. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 17:09:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24635 for dvd-discuss-outgoing; Wed, 13 Sep 2000 17:09:40 -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 RAA24611 for ; Wed, 13 Sep 2000 17:09:24 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA12527 for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 17:12:02 -0400 Date: Wed, 13 Sep 2000 17:11:57 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000913171157.D11829@eldritchpress.org> References: <20000913180504.4704.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000913180504.4704.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Sep 13, 2000 at 11:05:04AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 13, 2000 at 11:05:04AM -0700, Bryan Taylor wrote: > I just re-read Bernstein. It's nice to be reminded of what the truth > sounds like, and of the fact that judges occasionally "get it". > > It turns out that the dissenting judge essentially took the position > that Kaplan did, saying software was conduct. Judge Betty Fletcher > appropriately shot this down. > _______________ > > Bernstein v USDOJ > 97-16686 (9th Cir. 1999) > http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/19990506_circuit_decision.html > > First, the dissent conceives of the exchange of source code among > scientists as "conduct." We disagree. The source code at issue here is > text intended for human understanding, albeit in a specialized > language. To say that the "export" of this text is "conduct " for First > Amendment purposes, rather than straightforward scientific > "expression," is to call into question all distribution and circulation > of scientific texts that communicate ideas by using specialized > languages. Of course, source code may be functional as well as > expressive. We are not persuaded, however, that that fact > transmogrifies the distribution of scientific texts from "expression" > into "conduct" deserving of diminished First Amendment protection. > > Having cast the question as one relating to "conduct," the dissent then > takes a second step. Drawing from Lakeside, the dissent asks whether > the > "conduct" -- the exchange of cryptographic source code -- is "commonly > associated with expression." This question the dissent answers in the > negative; in other words, the dissent concludes that source code is not > used expressively often enough. We find this conclusion somewhat > perplexing, as there is nothing in the record to support it. Bernstein > has introduced extensive expert evidence to support his contention that > source code is frequently used for expressive purposes. The government, > however, has failed to introduce anything into the record to rebut this > evidence. We need to argue a la Touretzky that object code or interpreted code is no different, or not substantially different enough to matter. But this is a very good quote. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 17:15:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24844 for dvd-discuss-outgoing; Wed, 13 Sep 2000 17:15:27 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA24841 for ; Wed, 13 Sep 2000 17:15:25 -0400 Message-ID: <20000913211539.28805.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 13 Sep 2000 14:15:39 PDT Date: Wed, 13 Sep 2000 14:15:39 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Prior Restraint Cases To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bernstein has a bibliography of some good prior restraint cases, which expands a little more doing a partial depth 2 search. Feel free to add to the list if you know of others that should be here. FW/PBS v. Dallas, 493 U.S. 215 (Sup. Ct. 1990) http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=493&invol=215 Freedman v. Maryland 380 U.S. 51 (Sup. Ct. 1965) http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=380&invol=51 Bantam Books v. Sullivan 372 U.S. 58 (Sup. Ct. 1963) http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=372&invol=58 Riley v National Federation of the Blind 487 U.S. 781 (1988) http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=487&invol=781 Baltimore Blvd. v. Prince George's County, 58 F.3d 988, 995 (4th Cir. 1995) (en banc) http://caselaw.findlaw.com/scripts/getcase.pl?court=4th&navby=case&no=932151P Near v. Minnesota 283 U.S. 697 (Sup. Ct. 1931) http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=us&vol=283&invol=697 __________________________________________________ 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 Sep 13 17:31:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA25234 for dvd-discuss-outgoing; Wed, 13 Sep 2000 17:31:37 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA25231 for ; Wed, 13 Sep 2000 17:31:36 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id RAA16802 for ; Wed, 13 Sep 2000 17:32:42 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA09294; Wed, 13 Sep 2000 17:32:41 -0400 (EDT) Date: Wed, 13 Sep 2000 17:32:41 -0400 (EDT) Message-Id: <200009132132.RAA09294@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims In-Reply-To: <20000913170924.C11829@eldritchpress.org> References: <20000913164626.12687.qmail@web513.mail.yahoo.com> <200009131715.NAA04502@soggy-fibers.ai.mit.edu> <20000913170924.C11829@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > I would suggest that defense move for a directed remand on the > issue that Kaplan failed to hear evidence on 1201(b), and > in his decision confuses the two separate clauses, and indeed > the technologies of access control and copy control. Did he really? He didn't make a finding regarding 1201(b) at all; his opinion is all 1201(a), and based *entirely* on the law's criteria regarding access control. His argument makes no reference to the copy control provisions in the law at all[*], so it hardly confuses them with access control provisions. If he had made a finding without hearing relevant evidence, that would be different, but as is, I'm not sure I see the case for a directed remand. And if we got the case remanded to Kaplan on those grounds, all we could expect is *another* adverse legal finding to fight, on 1201(b), on top of the adverse finding we already have regarding 1201(a). I'm not sure why the defense should want that. To put it another way, he heard no evidence and made no findings wrt 1202 either; would you seek a directed remand about that? BTW, the definition of "effectively protect a right ..." in 1201(b) does refer explicitly to the enumerated rights of a copyright holder in Title 17, so copyright holders don't get to invent their own new, exclusive rights. You may still be right about unconstitutional overbreadth, because it doesn't say what *else* a copy control may do, but as I said, I'm not sure why *this case* is the right forum to raise those issues. Getting 1201(b) tossed on constitutional grounds wouldn't do a thing to help us with the 1201(a) finding which underlies Kaplan's ruling in the case... rst [*] 1201(b) is mentioned in his opinion only in footnotes, none of which contain any legal argument at all; he doesn't even *begin* to apply it to the facts of the case. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 18:20:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27035 for dvd-discuss-outgoing; Wed, 13 Sep 2000 18:20:48 -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 SAA27032 for ; Wed, 13 Sep 2000 18:20:47 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Wed, 13 Sep 2000 18:20:58 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Bernstein opinion on "conduct" Date: Wed, 13 Sep 2000 18:20:57 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="ISO-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I like the quote, but the argument will be that in this case the source code is not "text intended for human understanding" but a device intended to circumvent. I keep thinking we ought to use the fact that the DoJ doesn't think computers are recording devices (in the napster brief). You know, if computers cannot be recording devices, then computer software can never be a circumvention device. At first reading, I find DoJs claim pretty difficult to believe. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 18:28:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27358 for dvd-discuss-outgoing; Wed, 13 Sep 2000 18:28:37 -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 SAA27355 for ; Wed, 13 Sep 2000 18:28:36 -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 SAA08007 for ; Wed, 13 Sep 2000 18:29:40 -0400 (EDT) Message-ID: <39BFFFD3.D936C3DC@mediaone.net> Date: Wed, 13 Sep 2000 18:29:39 -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] Copyright discussion 9.12 References: <20000913080239.24933.qmail@web109.yahoomail.com> <20000913171335.B4421@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: > > "Tuyet A. Ngoc Tran" wrote: > > The MPAA is in the unfortunate position, he said, of > > "trying to convince the public that piracy is > > wrong here." " > > actually, I believe the MPAA is in the unfortunate position of trying to > convince the public that nuking a city because there might be a pirate in > it is right. > At least for this member of the public they're in the position of trying to convince me that piracy is not an acceptable cost of breaking their monopoly. I'd certainly prefer that the human beings who really create novel content get compensated for their efforts, but given the choice I am actually confronted with, well, sorry folks. Maybe we can fix things up later. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 18:31:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27657 for dvd-discuss-outgoing; Wed, 13 Sep 2000 18:31:52 -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 SAA27654 for ; Wed, 13 Sep 2000 18:31:51 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id SAA06062 for ; Wed, 13 Sep 2000 18:32:22 -0400 Date: Wed, 13 Sep 2000 18:32:21 -0400 (EDT) From: Joshua Stratton To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Bernstein opinion on "conduct" 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, the DoJ claim is specific to what the AHRA defines as a recording device. Computers generally don't qualify IIRC b/c 1) their primary function is not as an audio device 2) if they were, the RIAA would be entitled to a royalty for each one just in case someone did use them (and there would have to be a rights management system, etc. DAT is a good example of a digital recording device that was crippled by the RIAA at about the time that the AHRA came around) On Wed, 13 Sep 2000, Leland Ray wrote: > > I like the quote, but the argument will be that in this > case the source code is not "text intended for human > understanding" but a device intended to circumvent. > > I keep thinking we ought to use the fact that the > DoJ doesn't think computers are recording devices > (in the napster brief). You know, if computers cannot > be recording devices, then computer software can never > be a circumvention device. > > At first reading, I find DoJs claim pretty difficult > to believe. > From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 18:59:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA29700 for dvd-discuss-outgoing; Wed, 13 Sep 2000 18:59:24 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA29696 for ; Wed, 13 Sep 2000 18:59:22 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 15:59:44 -0700 Subject: Re: [dvd-discuss] Copyright discussion 9.12 To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 13 Sep 2000 15:59:41 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/13/2000 03:59:43 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Worse. They want to extend their control into the HOME and into the HOME COMPUTER and believe that technology and laws that effectively eliminate the first, fourth, fifth and the ninth amendments is just the way to do it. Why do I include the 4th and 5th amendments? The next step in their plan is to put controls etc in computers and home entertainment devices to prevent ANY copying. It's not much to speculate that that somebody on their staff will get the idea that now the devices must be connected to the internet and if they are...they so they can monitor who is trying or what modifications you are attempting to make...all without having to go through the process of getting a warrent, doing a search, or filing suit in court. >From their viewpoint, these things just get in the way of doing business as efficiently and profitably as possible. I include the 9th because I doubt that Jack "boots" Valenti has ever read it much less understood it...afterall Judge Bork made a whole career out of not understanding it. Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Copyright discussion arvard.edu 9.12 09/13/00 03:31 PM Please respond to dvd-discuss Tom Vogt wrote: > > "Tuyet A. Ngoc Tran" wrote: > > The MPAA is in the unfortunate position, he said, of > > "trying to convince the public that piracy is > > wrong here." " > > actually, I believe the MPAA is in the unfortunate position of trying to > convince the public that nuking a city because there might be a pirate in > it is right. > At least for this member of the public they're in the position of trying to convince me that piracy is not an acceptable cost of breaking their monopoly. I'd certainly prefer that the human beings who really create novel content get compensated for their efforts, but given the choice I am actually confronted with, well, sorry folks. Maybe we can fix things up later. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 19:29:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA30562 for dvd-discuss-outgoing; Wed, 13 Sep 2000 19:29:18 -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 TAA30559 for ; Wed, 13 Sep 2000 19:29:17 -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 TAA27937 for ; Wed, 13 Sep 2000 19:30:21 -0400 (EDT) Message-ID: <39C00E0D.365BF6E6@mediaone.net> Date: Wed, 13 Sep 2000 19:30:21 -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] Copyright discussion 9.12 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 Michael.A.Rolenz@aero.org wrote: > > Worse. They want to extend their control into the HOME and into the HOME > COMPUTER and believe that technology and laws that effectively eliminate > the first, fourth, fifth and the ninth amendments is just the way to do it. > > Why do I include the 4th and 5th amendments? The next step in their plan is > to put controls etc in computers and home entertainment devices to prevent > ANY copying. It's not much to speculate that that somebody on their staff > will get the idea that now the devices must be connected to the internet > and if they are...they so they can monitor who is trying or what > modifications you are attempting to make...all without having to go through > the process of getting a warrent, doing a search, or filing suit in court. > >From their viewpoint, these things just get in the way of doing business as > efficiently and profitably as possible. > > I include the 9th because I doubt that Jack "boots" Valenti has ever read > it much less understood it...afterall Judge Bork made a whole career out of > not understanding it. > Better be carefull about bringing in the 9th or you might get me started on the rights of a computer program to have a belief and to associate with other computer programs in furtherance of it's beliefs. Eventually the law is going to have to begin to come to grips with the fact that not only are computer programs speech, but to the extent they fuction they have life and personality. I doubt this is the case where we'd want to bring this up -- although I'm rather sure that when this does come up it will involve the Open Source movement. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 19:42:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA30934 for dvd-discuss-outgoing; Wed, 13 Sep 2000 19:42:30 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA30931 for ; Wed, 13 Sep 2000 19:42:29 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 16:43:20 -0700 Subject: Re: [dvd-discuss] Copyright discussion 9.12 To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 13 Sep 2000 16:43:17 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/13/2000 04:43:19 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Only if the program is artificially intelligent. Otherwise it's should be arrested since it's obviously loitering around the CPU. Following this case has made me understand that there are whole groups of people who are only now realizing that a computer is NOT just another appliance to be sold at a high profit margin. It's the most versatile tool ever devised by the human race and if others don't use this tool the way that THEY think others should be using it, they are willing to take draconian measures to try to control it. Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Copyright discussion arvard.edu 9.12 09/13/00 04:31 PM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > > Worse. They want to extend their control into the HOME and into the HOME > COMPUTER and believe that technology and laws that effectively eliminate > the first, fourth, fifth and the ninth amendments is just the way to do it. > > Why do I include the 4th and 5th amendments? The next step in their plan is > to put controls etc in computers and home entertainment devices to prevent > ANY copying. It's not much to speculate that that somebody on their staff > will get the idea that now the devices must be connected to the internet > and if they are...they so they can monitor who is trying or what > modifications you are attempting to make...all without having to go through > the process of getting a warrent, doing a search, or filing suit in court. > >From their viewpoint, these things just get in the way of doing business as > efficiently and profitably as possible. > > I include the 9th because I doubt that Jack "boots" Valenti has ever read > it much less understood it...afterall Judge Bork made a whole career out of > not understanding it. > Better be carefull about bringing in the 9th or you might get me started on the rights of a computer program to have a belief and to associate with other computer programs in furtherance of it's beliefs. Eventually the law is going to have to begin to come to grips with the fact that not only are computer programs speech, but to the extent they fuction they have life and personality. I doubt this is the case where we'd want to bring this up -- although I'm rather sure that when this does come up it will involve the Open Source movement. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 19:53:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA31398 for dvd-discuss-outgoing; Wed, 13 Sep 2000 19:53:32 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA31394 for ; Wed, 13 Sep 2000 19:53:23 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 16:54:05 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 13 Sep 2000 16:54:02 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/13/2000 04:54:04 PM MIME-Version: 1.0 Content-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 you consider copyright as a contract between the government and the copyright holder, then the copyright holder gets certain rights in exchange for letting the work enter the public domain upon expiration of the copyright. This is copyright law in its simplest form. If the work is distributed in such a manner that it cannot enter the public domain at the end of the copyright period then WHY should it be given copyright protection? So another question is How do works enter into the public domain? Previously there was a BOOK. There was sheetmusic. There were pictures. How do works with access control permitted by the DMCA enter into the public domain at the end of the copyright? The enactment of the DMCA seems to have created a MAJOR contradiction in copyright law. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 20:01:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31786 for dvd-discuss-outgoing; Wed, 13 Sep 2000 20:01:15 -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 UAA31783 for ; Wed, 13 Sep 2000 20:01:13 -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 UAA10752 for ; Wed, 13 Sep 2000 20:02:14 -0400 (EDT) Message-ID: <39C01586.F8906C82@mediaone.net> Date: Wed, 13 Sep 2000 20:02:14 -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] Copyright discussion 9.12 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 Michael.A.Rolenz@aero.org wrote: > > Only if the program is artificially intelligent. Otherwise it's should be > arrested since it's obviously loitering around the CPU. > > Following this case has made me understand that there are whole groups of > people who are only now realizing that a computer is NOT just another > appliance to be sold at a high profit margin. It's the most versatile tool > ever devised by the human race and if others don't use this tool the way > that THEY think others should be using it, they are willing to take > draconian measures to try to control it. > > What happens when they figure out that the Net is already intelligent, unlike the governments and big businesses it is consuming in it's primorial soup? Anyway, back to the DeCSS morality play... -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 20:02:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA31865 for dvd-discuss-outgoing; Wed, 13 Sep 2000 20:02:38 -0400 Received: from localhost.localdomain (mail-smtp.socket.net [216.106.1.32]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA31862 for ; Wed, 13 Sep 2000 20:02:35 -0400 Received: from socket.net (mailcore10.socket.net [216.106.1.115]) by localhost.localdomain (8.9.3/8.9.3) with SMTP id SAA02154 for ; Wed, 13 Sep 2000 18:58:46 -0500 Received: from glitch.snoozer.net ([216.106.1.60]) by socket.net ; Wed, 13 Sep 2000 19:03:05 -0500 Received: from localhost (glitch.snoozer.net) [127.0.0.1] ([1aeTclIKz3e6q/g2N9pLU6GkbguCdCWX]) by glitch.snoozer.net with esmtp (Exim 3.16 #1 (Debian)) id 13ZMWG-0006s7-00; Wed, 13 Sep 2000 19:04:48 -0500 Received: from adric by glitch.snoozer.net with local (Exim 3.16 #1 (Debian)) id 13ZMVb-0006s1-00 for ; Wed, 13 Sep 2000 19:04:07 -0500 Date: Wed, 13 Sep 2000 19:04:07 -0500 From: "Gregory T. Norris" To: dvd-discuss Subject: Re: [dvd-discuss] [Fwd: Fw: inapprp. content - song [#588859]] Message-ID: <20000913190407.B26244@glitch.snoozer.net> References: <39BEAD20.7643A2E3@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: <39BEAD20.7643A2E3@mediaone.net>; from sphere1952@mediaone.net on Tue, Sep 12, 2000 at 06:24:32PM -0400 X-Operating-System: Linux glitch 2.4.0-test8 #1 SMP Sun Sep 10 19:24:39 CDT 2000 i686 unknown Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I emailed MP3.com regarding this last night... for whatever it's worth, here's the correspondence I had with them. ----- Original Message ----- Date: Wed, 13 Sep 2000 18:43:42 -0500 From: "Gregory T. Norris" To: Dan O'Neill Subject: Re: removal of song #588859 - decss.mp3 Actually, despite the tone of my original email I'm not unsympathetic to your position. In addition, your prompt and courteous response does both you and your company credit - many would have ignored the issue altogether. Very well, I will back down from my original position... I won't actively discourage people from using your services, and I'll consider using them myself when the time comes. I would like to make one observation, however. I very much doubt this would have been a significant issue had the explanation been something like "removed to cover our butts" (obviously that wouldn't be the actual wording, but you get the idea). Unfortunately, the generic "offensive or inappropriate" form-letter gives QUITE a different impression. I strongly suggest that the reasons be spelled out clearly, up front, when exceptional circumstances are involved. Thank you for your time. ----- Original Message ----- > Date: Wed, 13 Sep 2000 06:58:49 -0700 > To: "Gregory T. Norris" > From: Dan O'Neill > Subject: Re: removal of song #588859 - decss.mp3 > > Gregory, > > Thanks for your note. The MPAA did not ask us to take down the song, > rather, to avoid yet another call from someone's lawyers we took a > more cautious approach. When there is clear judgement this > particular subject matter we will certainly abide by that judgement. > > I hope that you will give MP3.com a break. We're doing the very best > that we can to serve lots of customers. This includes breaking > artists (200+ new ones per day) and the fans looking for something > better than what they find in top 40 radio. > > Again, no one asked us to take down this content. It was a > conservative move by our musicology department. > > dano > > > At 10:24 PM 9/12/00 -0500, you wrote: > >I just wanted to express my extreme disappointment in your removal > >of decss.mp3 (song #588859), allegedly due to it being "offensive or > >otherwise inappropriate". This analysis, I am convinced, is > >completely and utterly baseless. A more likely explanation is that > >the MPAA took offense to the song's presence... in their fevered > >imagination it is no doubt an "illegal circumvention device". > >Fortunately, the rest of the world has not yet succumbed to the same > >level of idiocy. > > > >I had hoped that MP3.com would avoid becoming a mere lapdog of the > >established entertainment companies... regretfully, it appears that > >this is not the case. As a result, when I'm looking for online > >music and entertainment I shall be taking my business elsewhere. I > >will, of course, encourage others to do the same. > > From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 20:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32010 for dvd-discuss-outgoing; Wed, 13 Sep 2000 20:07:12 -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 UAA32005 for ; Wed, 13 Sep 2000 20:07:06 -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 UAA22772 for ; Wed, 13 Sep 2000 20:08:10 -0400 (EDT) Message-ID: <39C016EB.84B5362B@mediaone.net> Date: Wed, 13 Sep 2000 20:08:11 -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] What is missing? 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 Michael.A.Rolenz@aero.org wrote: > > If you consider copyright as a contract between the government and the > copyright holder, then the copyright holder gets certain rights in exchange > for letting the work enter the public domain upon expiration of the > copyright. This is copyright law in its simplest form. If the work is > distributed in such a manner that it cannot enter the public domain at the > end of the copyright period then WHY should it be given copyright > protection? > > So another question is How do works enter into the public domain? > Previously there was a BOOK. There was sheetmusic. There were pictures. How > do works with access control permitted by the DMCA enter into the public > domain at the end of the copyright? The enactment of the DMCA seems to have > created a MAJOR contradiction in copyright law. Wrong. The major contradiction arose when the statutes passed under the copyright clause permitted the growth of major publishing monopolies; which the copyright clause was intended to prevent. All the DMCA does is demonstrate why we shouldn't allow the existence of major publishing monopolies with money enough to buy congress. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 20:10:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32183 for dvd-discuss-outgoing; Wed, 13 Sep 2000 20:10:32 -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 UAA32164 for ; Wed, 13 Sep 2000 20:10:31 -0400 Message-ID: <20000914001106.3529.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Wed, 13 Sep 2000 17:11:06 PDT Date: Wed, 13 Sep 2000 17:11:06 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Leland Ray wrote: > > I like the quote, but the argument will be that in this > case the source code is not "text intended for human > understanding" but a device intended to circumvent. The source code was passed back and forth between many people (Johansen, Fawcus, Stevenson, Touretzky, Pavlovich, etc...) who read it, learned from it, discussed it, and adapted it to their purposes. This is part of the message of open source -- that sharing programming ideas has enormous benefit. The strongest evidence of this is that source code is available even though object code would suffice if the intent was just piracy. Even Kaplan had to admit that Touretzky pretty much decimated the contention that there are lines to be drawn between idea, source, and object code. > I keep thinking we ought to use the fact that the > DoJ doesn't think computers are recording devices > (in the napster brief). You know, if computers cannot > be recording devices, then computer software can never > be a circumvention device. That's a dangerous argument to rely on, because if the Napster Court comes out with the opposite view we're in trouble. Kaplan discovered this danger when he relied on the district court in Junger. > At first reading, I find DoJs claim pretty difficult > to believe. __________________________________________________ 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 Sep 13 20:12:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32254 for dvd-discuss-outgoing; Wed, 13 Sep 2000 20:12:40 -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 UAA32251 for ; Wed, 13 Sep 2000 20:12:39 -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 UAA04836 for ; Wed, 13 Sep 2000 20:13:42 -0400 (EDT) Message-ID: <39C01837.4167BE5@mediaone.net> Date: Wed, 13 Sep 2000 20:13:43 -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] [Fwd: Fw: inapprp. content - song [#588859]] References: <39BEAD20.7643A2E3@mediaone.net> <20000913190407.B26244@glitch.snoozer.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 They still haven't settled with one of the nasty publishing monopolies (Universal?). I figure this is more important with them than our case. It's nice to see that they're being honest about it -- or at least someone in their company is being honest. "Gregory T. Norris" wrote: > > I emailed MP3.com regarding this last night... for whatever it's worth, > here's the correspondence I had with them. > > ----- Original Message ----- > Date: Wed, 13 Sep 2000 18:43:42 -0500 > From: "Gregory T. Norris" > To: Dan O'Neill > Subject: Re: removal of song #588859 - decss.mp3 > > Actually, despite the tone of my original email I'm not unsympathetic > to your position. In addition, your prompt and courteous response does > both you and your company credit - many would have ignored the issue > altogether. Very well, I will back down from my original position... I > won't actively discourage people from using your services, and I'll > consider using them myself when the time comes. > > I would like to make one observation, however. I very much doubt this > would have been a significant issue had the explanation been something > like "removed to cover our butts" (obviously that wouldn't be the > actual wording, but you get the idea). Unfortunately, the generic > "offensive or inappropriate" form-letter gives QUITE a different > impression. I strongly suggest that the reasons be spelled out > clearly, up front, when exceptional circumstances are involved. > > Thank you for your time. > > ----- Original Message ----- > > Date: Wed, 13 Sep 2000 06:58:49 -0700 > > To: "Gregory T. Norris" > > From: Dan O'Neill > > Subject: Re: removal of song #588859 - decss.mp3 > > > > Gregory, > > > > Thanks for your note. The MPAA did not ask us to take down the song, > > rather, to avoid yet another call from someone's lawyers we took a > > more cautious approach. When there is clear judgement this > > particular subject matter we will certainly abide by that judgement. > > > > I hope that you will give MP3.com a break. We're doing the very best > > that we can to serve lots of customers. This includes breaking > > artists (200+ new ones per day) and the fans looking for something > > better than what they find in top 40 radio. > > > > Again, no one asked us to take down this content. It was a > > conservative move by our musicology department. > > > > dano > > > > > > At 10:24 PM 9/12/00 -0500, you wrote: > > >I just wanted to express my extreme disappointment in your removal > > >of decss.mp3 (song #588859), allegedly due to it being "offensive or > > >otherwise inappropriate". This analysis, I am convinced, is > > >completely and utterly baseless. A more likely explanation is that > > >the MPAA took offense to the song's presence... in their fevered > > >imagination it is no doubt an "illegal circumvention device". > > >Fortunately, the rest of the world has not yet succumbed to the same > > >level of idiocy. > > > > > >I had hoped that MP3.com would avoid becoming a mere lapdog of the > > >established entertainment companies... regretfully, it appears that > > >this is not the case. As a result, when I'm looking for online > > >music and entertainment I shall be taking my business elsewhere. I > > >will, of course, encourage others to do the same. > > > -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 20:19:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32424 for dvd-discuss-outgoing; Wed, 13 Sep 2000 20:19:07 -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 UAA32420 for ; Wed, 13 Sep 2000 20:19:05 -0400 Received: (qmail 24494 invoked by uid 60001); 14 Sep 2000 00:20:10 -0000 Message-ID: <20000914002010.24493.qmail@web115.yahoomail.com> Received: from [216.165.3.113] by web115.yahoomail.com; Wed, 13 Sep 2000 17:20:10 PDT Date: Wed, 13 Sep 2000 17:20:10 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss]side comment To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is not to detract from the main discussion but here's an example of draconian measure, albeit non-US.(wrapped url) http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=1685 --- Michael.A.Rolenz@aero.org wrote: > Only if the program is artificially intelligent. > Otherwise it's should be > arrested since it's obviously loitering around the > CPU. > Following this case has made me understand that > there are whole groups of > people who are only now realizing that a computer is > NOT just another > appliance to be sold at a high profit margin. It's > the most versatile tool > ever devised by the human race and if others don't > use this tool the way > that THEY think others should be using it, they are > willing to take > draconian measures to try to control 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 Sep 13 21:47:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA02938 for dvd-discuss-outgoing; Wed, 13 Sep 2000 21:47:04 -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 VAA02935 for ; Wed, 13 Sep 2000 21:47:00 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 14 Sep 2000 03:42:19 +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; Thu, 14 Sep 2000 03:19:23 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 14 Sep 2000 03:19:23 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914031923.A6305@lemuria.org> References: <20000913180504.4704.qmail@web512.mail.yahoo.com> <20000913171157.D11829@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000913171157.D11829@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: > We need to argue a la Touretzky that object code or interpreted code > is no different, or not substantially different enough to matter. > But this is a very good quote. sorry, but I - and lots of other free software advocates - will not support you there. object code *is* fundamentally different from source in that it doesn't allow modification or even understanding of the software involved. nonwithstanding the fact that most programmers - given time - can "read" object code (by disassembling), it is as far away from source as the DMCA is from shakespeare. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 21:56:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA03347 for dvd-discuss-outgoing; Wed, 13 Sep 2000 21:56:20 -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 VAA03344 for ; Wed, 13 Sep 2000 21:56:19 -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 VAA28010 for ; Wed, 13 Sep 2000 21:54:08 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000913211539.28805.qmail@web513.mail.yahoo.com> References: <20000913211539.28805.qmail@web513.mail.yahoo.com> Date: Wed, 13 Sep 2000 21:28:10 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Prior Restraint Cases Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 2:15 PM -0700 9/13/2000, Bryan Taylor wrote: >Bernstein has a bibliography of some good prior restraint cases, which >expands a little more doing a partial depth 2 search. Feel free to add >to the list if you know of others that should be here. >... > >Riley v National Federation of the Blind >487 U.S. 781 (1988) >http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol >=487&invol=781 > ... Here is a quote from National Federation of the Blind that would seem to bear on the 1201g(3) Encryption Research "Factors in determining exemption," including dissemination and notice to the copyright owner: "2. North Carolina's requirement that professional fundraisers disclose to potential donors, before an appeal for funds, the percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity is unconstitutional. This provision of the Act is a content-based regulation because mandating speech that a speaker would not otherwise make necessarily alters the speech's content. Even assuming that the mandated speech, in the abstract, is merely "commercial," it does not retain its commercial character when it is inextricably intertwined with the otherwise fully protected speech involved in charitable solicitations, and thus the mandated speech is subject to the test for fully protected expression, not the more deferential commercial speech principles. Nor is a deferential test to be applied on the theory that the First Amendment interest in compelled speech is different than the interest in compelled silence. The difference is without constitutional significance, for the First Amendment guarantees "freedom of speech," a term necessarily comprising the decision of both what to say and what not to say. Moreover, for First Amendment purposes, a distinction cannot be drawn between compelled statements of opinion and, as here, compelled statements of "fact," since either form of compulsion burdens protected speech. Thus, North Carolina's content-based regulation is subject to exacting First Amendment scrutiny." Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 22:30:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA04849 for dvd-discuss-outgoing; Wed, 13 Sep 2000 22:30:02 -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 WAA04846 for ; Wed, 13 Sep 2000 22:30:01 -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 WAA20255 for ; Wed, 13 Sep 2000 22:31:05 -0400 (EDT) Message-ID: <39C03868.3E8A6F67@mediaone.net> Date: Wed, 13 Sep 2000 22:31:04 -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] Bernstein opinion on "conduct" References: <20000913180504.4704.qmail@web512.mail.yahoo.com> <20000913171157.D11829@eldritchpress.org> <20000914031923.A6305@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: > > Eric Eldred wrote: > > We need to argue a la Touretzky that object code or interpreted code > > is no different, or not substantially different enough to matter. > > But this is a very good quote. > > sorry, but I - and lots of other free software advocates - will not support > you there. object code *is* fundamentally different from source in that it > doesn't allow modification or even understanding of the software involved. > nonwithstanding the fact that most programmers - given time - can "read" > object code (by disassembling), it is as far away from source as the DMCA > is from shakespeare. > When I started you toggled in the bootstrap... I know what you're saying. About the only people these days who worry about changing the object code are crackers and compiler writers -- and only crackers are interested in frobbing the running executable. (Well, there are Lisp programmers out there...) But I have read and modified code at the front panel switches. There might be enough difference between source and object for someone who actually understands the technology and language issues to make reasonable legal distinctions, but there's no way there's a fundamental difference which someone without the background could even really understand. Certainly, lawyers and judges who don't know anything about what programming really is are always writing really stupid and totally meaningless stuff that nobody with even a basic understanding of a crummy language like Pascal could even think of saying. In the long run, there's going to have to be software court judges just like there's family court judges, who know what's going on. In the short run the only defense we have against really stupid legal precident is the fact that software is speech. (In the really long run, everyone's going to speak in code anyway...) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 22:37:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05565 for dvd-discuss-outgoing; Wed, 13 Sep 2000 22:37:36 -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 WAA05562 for ; Wed, 13 Sep 2000 22:37:35 -0400 Received: from 209-122-203-29.s283.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.29]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13ZOv9-00042b-00 for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 22:38:40 -0400 Date: Wed, 13 Sep 2000 22:38:35 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] more of the judiciary commitee report 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 I really feel depressed. Anyway, here are two more ocred, and (partially) edited pages (11-12). Read them, and you'll understand.. The Committee on the Judiciary, which possesses primary juris- diction over this legislation, considered the argument that the lack of a definition of ''technological measure'' leaves manufacturers in the dark as to the range of protective technologies to which their prnducts must respond. The Committee concluded that any such concern is unfounded. No legltlmate manufacturer of consumer electronics devices or computer equipment could reasonably claim to be left in doubt about the course of action to be avoided, simply because the phrase ''technological measure'' is not itself defined in the bill. The only obligation imposed on manufacturers by this leg- islation is a purely negative one: to refrain from affirmatively de- signing a product or a component primar_l_ for the purpose of cir- cumventing a protective technology that effectively controls unau- thorized access to or uses of a copyrighted work. Any effort to read into this bill what is not there-a statutory definition of ''technological measure''_r to define in terms of par- ticular technDlogies what constitutes an ''effective'' measure, could inadvertently deprive legal protection to some of the copy or access control technologies that are or will be in widespread use for the protection of both digital and analog formats. Perhaps more impor- tantly, this approach runs a substantial risk of discouraging inno- vation in the development of protective technologies. For instance, today the standard form of encryption of digital materials involves scrambling its contents so that they are unintelligible unless proc- essed with a key supplied by the copyright owner or its agent. However, in a field that changes and advances as rapidly as encryption research, it would be short-sighted to write this defini- tion into a statute as the exclusive technological means protected by this bill. If only those measures that are in use or on the ''drawing board'' today are efectively protected against circumvention, the innova- tive new methods that are certain to be developed as a result of this legislation may fall outside the scope of any defnition Con- gress can write today. It would then not be a violation to cir- cumvent these new methods of protection, or even to go into the business of making devices or providing services for the purpose of circumventing tt_em, even though the new methnds are effective, in the ordinary course of their operation, in controlling access to or the exercise of exclusive rights with respect to a work, and even if they accomplistl these goals more efficiently and effectively than the measures that are in place or under development today . As a result, property owners would not be protected and there would be no market for such measures to protect copyright. The flexible and pragmatic approach of this legislation avoids this scenario by mak- ing it clear that if a technology works to control access or the exer- cise of exclusive rights-in other words, if it meets the definitions of effectiveness contained in subsections 1201(a)(3)(B) or 1201(b)(2)(B)-no matter how it does so, the prnhibitions of the statute are applicable. Similarly, the statements in the Commerce Committee report that attempt to read out of the ambit of effective technological measures those technologies that affect the appearance of the dis- play or performance of the works protected find no support in ei- ther the text of the bill or in the authoritative legislative history (12) of these provisions prepared by the Judiciary Committee. The defi- nitions contained in sections 1201(a)(3)(B) and 1201(b)(2)(B) re- quire no fruther embellishment. The Statements contalned in the Commerce committee report are problematic because they could be read to suggest that electronic equipment manufacturers should feel free to circumvent technological protections if they believe their equipment would function better without them in displaying or per- forming works. For example, some forms of digital watermarking superimpose a faint image on a copyrighted work to protect it from unauthorized copying. If there were a playablllty exception to the anti- cir- cumvention provisions of this bill, as these statements in correctly imply, then devices or srvices specifically designed for the purpose of removing such watermarks could be immunized under the pre- text that they improve image resolution. Such a result would un- dermine the purpose of this legislation. While the best approach is for copyrright owners and equipment manufacturers to cooperate in the development, of measures that can maximize protection while minimizing impact, it is not the In- tent of this legislation that manufacturers should have the author- ity to determine unilaterally which protective technologies copy- rlght owners may employ_ More importantly, there is nothing in the bill, nor in the authoritative legislative history, which supports the assertion that circumvention of an otherwise effective techno- logical measure is acceptahle if done in the name of ''playability.'' SlnCe the text of the legislation relatlng to this has not been amended to establish this principle, any effort to read such a prin- clple into the words the sponsors wrote, and that both the Judici ary committee and the Commerce Committee approved, should be dismissed. Swbsection (b) applies when a person has obtained authorized ac- cess to a copy or a phonorecord of a work, but the copyright owner has put in place technological measures that effectively protect his or her rights under Title 17 to control or limit the nature of the use of the copyrighted work. Paragraph (I). parallellng subsection (a)(2), abOve, paragraph (1) seeks to provide meanlngful protection and enforcement of copy- right owners use of technological measures to protect their rights Under Tltle 17 by prohibiting the act of maklng or selllng the tech- nological means to overcome these protections and facilitate copy- right infringement. Paragraph ( 1) prohibits manufacturing, import- ing, offering to the public, providing, or Otherwise trafFicking in cer tain technologies, products, services, devices, components, or parts thereof that can be used to circumvent a technological measure _ that effectively protects a right of a copyright owner under Title 17 In a work Or portion thereof. Again, for a technology, product, ser- ice, device component, or part thereof to be prohibited under this subsection, one of three conditions must be met. It must. _ (1) be primarily designed or produced for the purpose of cir- cumventing; (2) have only limited commercially significant purpose or use other than to circumvent; or (3) be marketed by the person who manufactures it, imports it, offers it to the public, provides it, or otherwise traffics in it Continues From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 22:45:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05761 for dvd-discuss-outgoing; Wed, 13 Sep 2000 22:45:15 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA05758 for ; Wed, 13 Sep 2000 22:45:14 -0400 Message-ID: <20000914024549.16687.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Wed, 13 Sep 2000 19:45:49 PDT Date: Wed, 13 Sep 2000 19:45:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Michael.A.Rolenz@aero.org wrote: > If you consider copyright as a contract between the government and > the copyright holder, then the copyright holder gets certain rights in > exchange for letting the work enter the public domain upon > expiration of the copyright. This is copyright law in its > simplest form. If the work is distributed in such a manner that > it cannot enter the public domain at the end of the copyright > period then WHY should it be given copyright protection? Well, you can copyright unpublished works and exclude others completely; you just can't SELL it and do so. I think you should say "WHY should the author be allowed to profit from his copyright protection". Here's a post providing a legal precedent saying almost exactly this in VERY direct terms! Check it out. http://eon.law.harvard.edu/archive/dvd-discuss/msg01634.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 Sep 13 23:10:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA06372 for dvd-discuss-outgoing; Wed, 13 Sep 2000 23:10:55 -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 XAA06369 for ; Wed, 13 Sep 2000 23:10:54 -0400 Message-ID: <20000914031130.1709.qmail@web510.mail.yahoo.com> Received: from [64.81.25.37] by web510.mail.yahoo.com; Wed, 13 Sep 2000 20:11:30 PDT Date: Wed, 13 Sep 2000 20:11:30 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Eric Eldred wrote: > > We need to argue a la Touretzky that object code or interpreted > > code is no different, or not substantially different enough > > to matter. But this is a very good quote. > > sorry, but I - and lots of other free software advocates - will not > support you there. object code *is* fundamentally different > from source in that it doesn't allow modification or even > understanding of the software involved. nonwithstanding the fact > that most programmers - given time - can "read" > object code (by disassembling), it is as far away from source as the > DMCA is from shakespeare. Hmmm. I think you are both right -- object code is still speech, but it is more arcane speech, providing much more difficult reading and not lending itself to variation. Publishing object code while keeping the source code secret is a very strong indicator that your motive is NOT to communicate the ideas, but to obfuscate them. In this case, you can't claim that you are communicating programming methods, unless you have some guru skills like the professors who testified. Johansen did read the CSS algorithm by looking at the object code, remember. Despite Xing and the DVD-CCA trying to pretend that they didn't communicate it, because they didn't want to, they did. However releasing object code accompanied by source code changes this entirely, even for the object code. In my work I regularly look back and forth between object code and source code when doing tuning, especially if I have object code specific information from an external source (database server). Without the source, partial readings of the object code would be a lot less useful, but if I have both I can do more than with just either one alone. __________________________________________________ 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 Sep 13 23:52:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07342 for dvd-discuss-outgoing; Wed, 13 Sep 2000 23:52:03 -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 XAA07339 for ; Wed, 13 Sep 2000 23:52:02 -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 XAA18787 for ; Wed, 13 Sep 2000 23:53:06 -0400 (EDT) Message-ID: <39C04BA3.8728477A@mediaone.net> Date: Wed, 13 Sep 2000 23:53:07 -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] Bernstein opinion on "conduct" References: <20000914031130.1709.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: > > --- Tom Vogt wrote: > > Eric Eldred wrote: > > > We need to argue a la Touretzky that object code or interpreted > > > code is no different, or not substantially different enough > > > to matter. But this is a very good quote. > > > > sorry, but I - and lots of other free software advocates - will not > > support you there. object code *is* fundamentally different > > from source in that it doesn't allow modification or even > > understanding of the software involved. nonwithstanding the fact > > that most programmers - given time - can "read" > > object code (by disassembling), it is as far away from source as the > > DMCA is from shakespeare. > > Hmmm. I think you are both right -- object code is still speech, but it > is more arcane speech, providing much more difficult reading and not > lending itself to variation. Publishing object code while keeping the > source code secret is a very strong indicator that your motive is NOT > to communicate the ideas, but to obfuscate them. In this case, you > can't claim that you are communicating programming methods, unless you > have some guru skills like the professors who testified. > > Johansen did read the CSS algorithm by looking at the object code, > remember. Despite Xing and the DVD-CCA trying to pretend that they > didn't communicate it, because they didn't want to, they did. > > However releasing object code accompanied by source code changes this > entirely, even for the object code. In my work I regularly look back > and forth between object code and source code when doing tuning, > especially if I have object code specific information from an external > source (database server). Without the source, partial readings of the > object code would be a lot less useful, but if I have both I can do > more than with just either one alone. > Very good. Object code by itself is "very little speech". Any theories on how to get this codified as law??? -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 13 23:52:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07375 for dvd-discuss-outgoing; Wed, 13 Sep 2000 23:52:49 -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 XAA07372 for ; Wed, 13 Sep 2000 23:52:47 -0400 Received: from swbell.net ([64.216.209.152]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0U005SBYAIAB@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 22:42:19 -0500 (CDT) Date: Wed, 13 Sep 2000 22:33:01 -0500 From: Jolley Subject: Re: [dvd-discuss] Kaplan Again Revises Order To: dvd-discuss@eon.law.harvard.edu Message-id: <39C046ED.660EF50D@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=iso-8859-1 Content-transfer-encoding: 8BIT X-Accept-Language: en References: <39BA64D3.ECF8222E@cdpage.com> <200009091956.PAA01836@smtp10.atl.mindspring.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Has anyone located the corrected pages? John Young wrote: > > This is the entire 1-page order from Court Web which > did not have the attached corrected pages (anybody > have the corrected pages?): > > UNITED STATES DISTRICT COURT > SOUTHERN DISTRICT OF NEW YORK > > - - - - - - - - - - - - - - - - - - - - - - - - - - x > > UNIVERSAL CITY STUDIOS, INC., et al., > Plaintiffs, > -against- 00 Civ. 0277 (LAK) > SHAWN C. REIMERDES, et al., > Defendants. > > - - - - - - - - - - - - - - - - - - - - - - - - - - x > > ORDER > > LEWIS A. KAPLAN, District Judge. > > The Court’s opinion, dated August 17, 2000, is amended > by substituting the attached corrected pages 6 and > 58-62 for the corresponding original pages. > > SO ORDERED. > > Dated: September 6, 2000 > _______________________________________ > Lewis A. Kaplan > United States District Judge > > ----- From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 00:33:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08604 for dvd-discuss-outgoing; Thu, 14 Sep 2000 00:33:00 -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 AAA08601 for ; Thu, 14 Sep 2000 00:32:59 -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 XAA32710 for ; Wed, 13 Sep 2000 23:33:29 -0500 Message-ID: <39C056ED.6EA22D2E@mninter.net> Date: Wed, 13 Sep 2000 23:41:17 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? References: <20000914024549.16687.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 > > --- Michael.A.Rolenz@aero.org wrote: > > If you consider copyright as a contract between the government and > > the copyright holder, then the copyright holder gets certain rights > in > > exchange for letting the work enter the public domain upon > > expiration of the copyright. This is copyright law in its > > simplest form. If the work is distributed in such a manner that > > it cannot enter the public domain at the end of the copyright > > period then WHY should it be given copyright protection? This sounds like the reasoning behind the punishment for "misuse of copyright" being loss of copyright. I wouldn't be surprised if it could be argued that using the DMCA in a way such as Kaplan says it can be used would automatically qualify as misuse. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 00:40:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09000 for dvd-discuss-outgoing; Thu, 14 Sep 2000 00:40:38 -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 AAA08997 for ; Thu, 14 Sep 2000 00:40:37 -0400 Received: from Jana-Server (user-38ld46v.dialup.mindspring.com [209.86.144.223]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id AAA24280 for ; Thu, 14 Sep 2000 00:41:41 -0400 (EDT) Message-ID: <39C05707.E73D689E@mindspring.com> Date: Thu, 14 Sep 2000 00:41:44 -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] Bernstein opinion on "conduct" 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 > I keep thinking we ought to use the fact that the > DoJ doesn't think computers are recording devices > (in the napster brief). You know, if computers cannot > be recording devices, then computer software can never > be a circumvention device. > > At first reading, I find DoJs claim pretty difficult > to believe. > Their argument about why a PC is not a 'dard' does seem silly, because it appears to be that a simple marketing change would let Napster off the hook. And you make a very good point. Their brief makes the argument that a PC is a general purpose instrument, and then follow that with an argument about a special recording function that a PC can do is somehow exempt from having to pay royalties and other stuff. This is how they say a PC is not a recording device: >From the CO brief: " http://www.loc.gov/copyright/docs/napsteramicus.pdf " "The terms "digital audio recording device" and "digital audio recording medium" are specifically defined in the Act. A "digital audio recording device" is defined, with exceptions not relevant here, as any machine or device "the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use." 17 U.S.C. § 1001(3) (emphasis added). A "digital audio recording medium" is defined (again with inapplicable exceptions) as "any material object * * * that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device." Id. § 1001(4)(A) (emphasis added)." If they see an programmed function of a general purpose machine as being somehow different, why not make the argument that a movie recorder is different in exactly the same way. An executing program is an ephemeral event, so, by their argument, it doesn't really exist. Neither, then, does DeCSS. The next argument will then be over whether or not it resulted in a copy being left on the hard disk. Their brief says it doesn't matter if the song makes it's way to the hard disk, it's not a recording device. This should also, then, not matter with DeCSS. mickeym Oh, and if you were to pour cement over the PC while it was in record mode and sell it that way, man you are sooo busted. mickeym From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 00:42:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09118 for dvd-discuss-outgoing; Thu, 14 Sep 2000 00:42:15 -0400 Received: from hotmail.com (f62.law3.hotmail.com [209.185.241.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA09115 for ; Thu, 14 Sep 2000 00:42:14 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 13 Sep 2000 21:42:50 -0700 Received: from 206.245.243.224 by lw3fd.law3.hotmail.msn.com with HTTP; Thu, 14 Sep 2000 04:42:49 GMT X-Originating-IP: [206.245.243.224] From: "Fire Drake" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DeCSS On Napster. Date: Wed, 13 Sep 2000 22:42:49 MDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Sep 2000 04:42:50.0201 (UTC) FILETIME=[3C9E2C90:01C01E06] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's just a funny thing, if you look up DeCSS on napster you'll find Joe Wecker "singing" the DeCSS code :P He he the MPAA is realy going to love napster now. _________________________________________________________________________ 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 Thu Sep 14 00:55:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09431 for dvd-discuss-outgoing; Thu, 14 Sep 2000 00:55:39 -0400 Received: from mail.rdc2.occa.home.com (imail@ha1.rdc2.occa.home.com [24.2.8.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA09428 for ; Thu, 14 Sep 2000 00:55:38 -0400 Received: from [192.168.1.100] ([24.13.176.232]) by mail.rdc2.occa.home.com (InterMail vM.4.01.03.00 201-229-121) with ESMTP id <20000914045640.KJOC1384.mail.rdc2.occa.home.com@[192.168.1.100]> for ; Wed, 13 Sep 2000 21:56:40 -0700 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Wed, 13 Sep 2000 21:56:39 -0700 Subject: Re: [dvd-discuss] DeCSS On Napster. From: Danny Silverman To: Message-ID: In-Reply-To: Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ah, yes, but you'll notice that MP3.com pulled the same song from their servers. I assume that Wecker will soon be added to the list of defendants in the CA suit. ;-) Oh, and it's the RIAA that is suing Napster, not the MPAA. +----------------------------------------------------------------------+ | Making the simple complicated is commonplace; making the complicated | | simple, awesomely simple, that's creativity. - Charles Mingus | +-----------------------------------+----------------------------------+ | Danny Silverman | dsilverman@mindwire.org | +-----------------------------------+----------------------------------+ geek - activist - free-speech advocate - mac devotee - student - trekkie > From: "Fire Drake" > Reply-To: dvd-discuss@eon.law.harvard.edu > Date: Wed, 13 Sep 2000 22:42:49 MDT > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] DeCSS On Napster. > > It's just a funny thing, if you look up DeCSS on napster you'll find Joe > Wecker "singing" the DeCSS code :P He he the MPAA is realy going to love > napster now. > _________________________________________________________________________ > 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 Thu Sep 14 00:58:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA09602 for dvd-discuss-outgoing; Thu, 14 Sep 2000 00:58:47 -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 AAA09599 for ; Thu, 14 Sep 2000 00:58:46 -0400 Received: from swbell.net ([64.216.209.152]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0V008EF1PZWZ@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Wed, 13 Sep 2000 23:56:23 -0500 (CDT) Date: Wed, 13 Sep 2000 23:47:06 -0500 From: Jolley Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu Message-id: <39C0584A.71AFDF43@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: <20000914031130.1709.qmail@web510.mail.yahoo.com> <39C04BA3.8728477A@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't know why you would want to do this or take this position. Please explain. Sphere wrote: > > Very good. Object code by itself is "very > little speech". Any theories on how to get > this codified as law??? > As Kaplan said "The path from idea to human language to source code to object code is a continuum." And he goes on to say that "Not everyone can understand each of these forms." I think an argument could be made that the speech element of object code can be observed when run on a computer. Even by someone without any programming knowledge. As an example, I remember a program that brought up a dialog box with a button in the center that read "Click here for your pay raise." When you moved the pointer towards the button, the button moved so that you could never activate the button. The speech - a funny joke. Easy to see when run on a computer. Difficult to see reading the source and very difficult to see it in the object code. The important thing is that the object code still contained the speech. The computer was just an aid in seeing the speech much like reading glasses are an aid to reading text. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 01:02:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA09739 for dvd-discuss-outgoing; Thu, 14 Sep 2000 01:02:06 -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 BAA09736 for ; Thu, 14 Sep 2000 01:02:05 -0400 Received: from jackaa (user-33qto2r.dialup.mindspring.com [199.174.224.91]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id BAA12467 for ; Thu, 14 Sep 2000 01:03:09 -0400 (EDT) Message-Id: <3.0.6.32.20000913223529.007da760@popd.ix.netcom.com> X-Sender: joskay@popd.ix.netcom.com X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.6 (32) Date: Wed, 13 Sep 2000 22:35:29 -0600 To: dvd-discuss@eon.law.harvard.edu From: Jack Oskay Subject: Re: [dvd-discuss] Way to copy a DVD to a CD In-Reply-To: <39C056ED.6EA22D2E@mninter.net> References: <20000914024549.16687.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 Hi, An interesting article about how to copy a DVD to a CD. Slashdot is running an article about compressing a DVD to fit onto a CD. Quality is less. Requires some higher end computer power. Slashgdot article http://slashdot.org/article.pl?sid=00/09/13/1911201&mode=thread The article http://www.tomshardware.com/video/00q3/000913/index.html The server that is posting the article seems to be slashdotted at the moment or has a slow connection. Thank you, Jack From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 02:01:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA11295 for dvd-discuss-outgoing; Thu, 14 Sep 2000 02:01:13 -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 CAA11292 for ; Thu, 14 Sep 2000 02:01:09 -0400 Received: from ip193.bedford2.ma.pub-ip.psi.net ([38.32.10.193]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13ZS5v-0002At-00 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 02:01:59 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report Date: Thu, 14 Sep 2000 02:04:59 -0400 Message-ID: <9jq0ssk9507fr7f3hhciqb35p3dlf6idlq@4ax.com> 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 CAA11293 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 13 Sep 2000 22:38:35 EDT, Jeremy Erwin wrote: >I really feel depressed. Anyway, here are two more ocred, and (partially) >edited pages (11-12). Read them, and you'll understand.. I decided to go nuts and do the whole thing in one pass--hope it's mostly accurate. --------------------------------------------- 105th Congress Serial No. 6 Second Section COMMITTEE PRINT SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998 COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE' HUNDRED FIFTH CONGRESS henry J. hyde, Chairman SEPTEMBER 1998 U.S. GOVERNMENT PRINTING OFFICE 50-819 WASHINGTON : 1998 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-057485-4 COMMITTEE ON THE JUDICIARY HENRY J. HYDE, Illinois, Chairman F. JAMES SENSENBRENNER, jr., Wisconsin BILL McCOLLUM, Florida GEORGE W. GEKAS, Pennsylvania HOWARD COBLE, North Carolina LAMAR SMITH, Texas ELTON GALLEGLY, California CHARLES T. CANADY, Florida BOB INGLIS, South Carolina BOB GOODLATTE, Virginia STEPHEN E. BUYER, Indiana ED BRYANT, Tennessee STEVE CHABOT, Ohio BOB BARR, Georgia WILLIAM L. JENKINS, Tennessee ASA HUTCHINSON, Arkansas EDWARB A. PEASE, Indiana CHRISTOPHER B. CANNON, Utah JAMES E. ROGAN, California LINDSEY 0. GRAHAM, South Carolina MARY BONO California JOHN CONYERS, Jr., Michigan BARNEY FRANK, Massachusetts CHARLES E. SCHUMER, New York HOWARD L. BERMAN, California RICK BOUCHER, Virginia JERROLD NADLER, New York ROBERT C. SCOTT, Virginia MELVIN L. WATT, North Carolina ZOE LOFGREN, California SHEILA JACKSON LEE, Texas MAXINE WATERS, California MARTIN T. MEEHAN, Massachusetts WILLIAM D. DELAHUNT, Massachusetts ROBERT WEXLER, Florida STEVEN R. ROTHMAN, New Jersey THOMAS M. BARRETT, Wisconsin Thomas E. Mooney, Sr., Chief of Staff-General Counsel Jon Dudas, Staff Director-Deputy General Counsel Julian Epstein, Minority Chief Counsel and Staff Director Julian Epstein, Minority Staff Director CONTENTS Summary Manager's Amendment Section-By-Section Analysis Section 1 Section 2 Title I -- WIPO Copyright Treaties Implementation Section 101; Short Title .......................... Section 102: Technical Amendments ........ Section 103: Copyright Protection and Management Systems . Section 104: Development and Implementation of Technological Protection Measures Section 105: Evaluation of Impact of Copyright Law and Amendments on Electronic Commerce and Technological Development . Section 106: Effective Date ............ Title II -- Online Copyright Infringement Liability Limitation Section 201: Short Title Section 202: Limitations on Liability for Copyright Infringement Section 203: Effective Date Title III -- Computer Maintenance or Repair Copyright Exemption Section 301: Short Title ....................... Section 302: Limitations on Exclusive Rights: Computer Programs Title IV -- Miscellaneous Provisions Section Section 401: Under Secretary of Commerce for Intellectual Property Policy ........................................... Section 402: Relationship with Existing Authorities .. Section 411: Ephemeral Recordings .................... Section 412: Limitations on Exclusive Rights: Distance Education Section 413: Exemption for Libraries and Archives Section 414: Fair Use Section 415: Scope of Exclusive Rights in Sound Recordings: Ephemeral Recordings Section 416: Assumption of Contractual Obligations ... Section 417: First Sale Clarification Title V -- Collections of Information Antipiracy Act Section 501: Short Title .. Section 502: Prohibition Against Misappropriation . Section 503: Conforming Amendment .................... Section 504: Conforming Amendments to Title 28 .. Section 505: Effective Date Title VI -- Protection of Certain Original Designs Section 601: Short title Section 602: Protection of Certain Original designs . Section 603: Conforming Amendments Section 604: Effective Date .. (III) SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998 SUMMARY Mr. speaker: the following is a section-by-section discussion and analysis of H.R. 2281, the "Digital Millennium Copyright Act," as passed by the House of Representatives on August 4, 1998, under suspension of the Rules. I introduced H.R. 2281 on July 29, 1997, along with Representatives Henry Hyde, Chairman of the Committee on the Judiciary, John Conyers, Ranking Democratic Member of the Committee, and Barney Frank, Ranking Democratic Member of the Subcommittee on Courts and Intellectual Property. The bill was referred to the Committee on the Judiciary, and subsequently, to the Subcommittee on Courts and Intellectual Property. The Subcommittee on Courts and Intellectual Property held two days of hearings on this legislation on September 16 and 17, 1997 (Serial #33), Testimony was received from over 25 witnesses. The Subcommittee conducted a markup of H.R. 2281 on February 26, 1998, - and the Committee on the Judiciary ordered to be reported the bill, as amended, on April 1, 1998. The bill was reported on May 22, 1998 (Report # 105-551, part 1). The Committees on Commerce and Ways and Means each requested a sequential referral on portions of the bill over which they possessed jurisdiction concurrent with that of the Committee on the Judiciary, and both Committees were granted a sequential referral on those portions on May 22, 1998. The Committee on Commerce ordered to be reported the bill, as amended, on July 17, 1998. The bill was reported by the Committee on Commerce on July 22, 1998 (Report # 105-551, part II). The Committee on Ways and Means did not conduct a markup or order the bill to be reported pursuant to an agreement memorialized in an exchange of letters between Chairman Archer and Chairman Hyde, to exclude language objectionable to the Committee on Ways and Means contained in the bill as reported by the Committee on the Judiciary, by means of a Manager's Amendment to the bill considered under suspension of the Rules on August 4, 1998. Those letters have been made part of the record. The Manager's Amendment considered and passed by the House on August 4, 1998, contained provisions agreed upon by the Committees on the Judiciary, Commerce, and Ways and Means, other provisions which have already been considered and passed by the House under suspension of the Rules, and technical, clarifying and other provisions. As Manager and author of the bill and author of the amendment which passed the House, I am placing into the 2 record today, pursuant to leave granted by unanimous consent on August 4, 1998, a section-by-section analysis of the Manager's Amendment to explain thoroughly the intent of the provisions contained therein. While some of the provisions of H.R. 2281 as it was passed by the House reflect substantial changes to the bill as I introduced it last year, and as it was reported this spring from the Committee on the Judiciary, others have not been changed at all. These unchanged provisions include the key operative provisions that define prohibited acts of manufacturing, importing, distributing, or otherwise trafficking in circumvention services or tools: section 1201(a) (2) and (3), and section 1201(b), of the new Chapter 12 of Title 17. Thus, as to these provisions, the authoritative legislative history is to be found in the report of the Judiciary Committee, since the sequential Committees did not change any of these provisions as they had already been authoritatively interpreted in the Judiciary Committee report. However, because varying interpretations of these provisions have been offered by some parties, I will take this opportunity to clarify the intent of these provisions which initially appeared in my bill as introduced, and which emerged basically unchanged from the Judiciary Committee consideration of the bill. Mr. Speaker, this bill protects property rights in the digital world. The digital environment now allows users of electronic media to send and retrieve perfect reproductions easily and nearly instantaneously, to or from locations around the world. With this evolution in technology, the law must adapt in order to make digital networks safe places to disseminate and exploit material in which American citizens have rights in an unregulated and beneficial environment. This is especially important to small businesses and independent creators who will be able to use this new medium to benefit economically from a new international distribution system without many outside costs. I congratulate the House on this major achievement for our economy and look forward to a productive conference with the other body, and the eventual passage into law of this very important legislation. MANAGER'S AMENDMENT SECTION-BY-SECTION ANALYSIS Section I This section provides a short title for this Act. It may be cited as the "Digital Millennium Copyright Act." Section 2 This section provides a table of contents indicating the titles and sections contained in this Act. TITLE I-WIPO COPYRIGHT TREATIES IMPLEMENTATION Section 101: Short Title This section provides that this title may be cited as the "WIPO Copyright Treaties Implementation Act." 3 Section 102: Technical Amendments Summary To comply with the obligations of the WIPO Treaties, several technical amendments to the U.S. Copyright Act are necessary. These amendments are needed to ensure that works from countries that join the two new WIPO Treaties, including works in existence on the date each treaty becomes effective for the United States, will be protected in the United States on a formality-free basis, as required by the provisions of each treaty. Three sections of the Copyright Act require amendment: (1) section 104, which specifies the conditions on which works from other countries are protected in the United States; (2) section 104A, which restores protection to certain preexisting works from other countries that have fallen into the public domain in the United States; and (3) section 411(a), which makes copyright registration a precondition to bringing suit for infringement for some works. In addition, the amendments made to these sections require some additions to, and changes in, the definition section of the Copyright Act, section 101. Changes to Section 101: Definitions. The bill amends section 101 to define "treaty party" as "any country or intergovernmental organization that is a party to an international agreement" and to define "international agreement" to include, inter alia, the two new WIPO Treaties. Definitions of the two new WIPO Treaties are also provided. In addition, a definition of "United States work" was added for purposes of amended section 411. Changes to Section 104: Subject Matter of Copyright: National Origin. Existing section 104 identifies the criteria that must be met for a work to qualify for protection under the U.S. copyright law (i.e., "points of attachment"). Among those protected under section 104 are nationals or domiciliaries of those countries with which we have an appropriate Treaty relationship. Section 104, as it is presently written, explicitly identifies those Treaty relationships, but does not refer to the two new WIPO Treaties. Therefore, section 104 needs to be amended to provide for points of attachment for the two new WIPO Treaties. This bill amends section 104 so that all countries that have copyright relations with the United States would be referred to collectively by the term "treaty parties." This change, in conjunction with the amendments to section 101, which define "treaty party" and "international agreement," serves to ensure that the two new WIPO Treaties are covered by section 104. The bill also amends section 104 to extend protection to foreign works from any treaty party based on four points of attachment: nationality of the author, place of first publication of the work, place of fixation of the sounds embodied in a sound recording, and the situs of a constructed architectural work. The way section 104 is presently written requires that it be amended each time U.S. treaty membership changes. By defining "treaty party" in section 101 and amending section 104 to refer to 4 "treaty party," future changes in the treaties to which the U.S. is a party would not require changes to section 104. It is much clearer and less unwieldy to have a single set of criteria for eligibility in section 104 as proposed by this bill, rather than multiple, overlapping criteria in a long list of complex definitions in section 101. If we join any future treaties, they can simply be added to the list of "international agreements" without any detailed amendments repeating the criteria for eligibility. The amendment to section 104 also makes clear that membership in the Geneva Phonograms Convention and the WIPO Performances and Phonograms Treaty provides national eligibility for sound recordings only, not other types of works. Changes to Section 104A: Copyright in Restored Works. The bill amends subsection (h) of section 104A by adding the two new WIPO Treaties to the definitions of "date of adherence or proclamation" and "eligible country." It would also add a paragraph to the definition of "restored work" to ensure that copyrighted works other than sound recordings do not qualify as restored works where the sole basis for protection in the United States is adherence to the WIPO Performances and Phonograms Treaty. Changes to Section 411(a): Registration and Infringement Actions. In its current form, section 411(a) requires works to be registered with the Copyright Office before suit can be brought for their infringement, but exempts Berne Convention works whose country of origin is not the United States. The section must be amended to exempt works from members of the two new WIPO Treaties. Amendments to section 411(a) reframe the registration requirement in the affirmative-essentially the converse of the current section. In other words, the provision would state affirmatively that "United States works" must be registered before suit, with "United States works" defined as the converse of the current definition of works whose country of origin is not the United States. Similar to the changes in section 104, this section could be easily updated each time the United States joins another treaty, without the need to change several interrelated provisions of the Act. Change to Section 507(a) Currently, section 507(a) provides for a three-year statute of limitations period for all criminal copyright actions. Section 507(a) is amended to recognize exceptions to the three-year limitations period if expressly provided elsewhere in Title 17. New chapter 12 of Title 17 provides for a five-year criminal limitation period. Section 103: Copyright Protection and Management Systems. Summary The two new WIPO Treaties include substantively identical provisions on technological measures of protection (also commonly referred to as the "black box" or "anticircumvention" provisions). These provisions require contracting parties to provide "adequate legal protection and effective legal remedies against the circumven- 5 tion of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law." Both of the new WIPO treaties also include substantively identical provisions on rights management information. These provisions require contracting parties to protect the integrity of rights management information. The treaties define rights management information as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public." Legislation is required to comply with both of these provisions. To accomplish this, this section adds a new chapter (chapter twelve) to Title 17 of the United States Code. This new chapter twelve includes four new sections to the Copyright Act-(1) section 1201, which prohibits the circumvention of technological copyright protection measures; (2) section 1202, which protects the integrity of copyright management information; (3) section 1203, which provides for civil remedies for violations of sections 1201 and 1202; and (4) section 1204, which provides for criminal penalties for violations of sections 1201 and 1202. Subsection (a) of Section 103 thus amends title 17 to establish this new Chapter 12 to the Copyright Act to protect against certain acts of circumvention of technological measures employed by copyright owners to defend against unauthorized access to or copying of their works. Section 1201: Circumvention of Copyright Protection Systems. Subsection (a) of new Section 1201 applies when a person who is not authorized to have access to a work seeks to gain access by circumventing a technological measure put in place by the copyright owner that effectively controls access to the work. The relevant terminology is defined in paragraph (3), as described below. Paragraph (1). The act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book. Subparagraph (A) establishes a general prohibition against gaining unauthorized access to a work by circumventing a technological measure put in place by the copyright owner where such measure effectively controls access to a work protected under Title 17 of the U.S. Code. This prohibition will not take effect until 2 years from the date of enactment of this chapter of the Copyright Act. Subparagraph (B) provides that the prohibition against circumvention contained in subparagraph (A) will not apply to persons who have been authorized to gain initial access to a work, or to nonprofit libraries, archives, educational institutions, or other nonprofit entities, with regard to a work contained within a class of works as to which such person or entity is determined to have been adversely affected by the prohibition in their ability to make 6 noninfringing uses. This determination is to be made by means of a rulemaking proceeding described in subparagraph (C). Subparagraph (C) establishes a rulemaking to be conducted in the two-year period after the enactment of this new chapter (before the prohibition contained in subparagraph (A) goes into effect), and subsequent to that, every three years, by the Secretary of Commerce, in conjunction with the Under Secretary of Commerce for Intellectual Property Policy, the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information. The rulemaking will determine, based on specific evidence, whether and to what extent the exemptions in subparagraph (B) to the prohibition contained in subparagraph (A) will take effect. The main purpose of delaying for two years (under subparagraph (A)) the effective date of the prohibition against circumvention of access control technologies is to allow the development of a record as to how the implementation of these technologies is affecting availability of works ^n the market place for non-infringing uses. It is anticipated that the main focus of the rulemaking proceeding will be on whether a substantial diminution of that availability is actually occurring in the market for particular classes of copyrighted works. However, it should be recognized that market developments may well proceed on a different pace than the triennial schedule for rulemaking proceedings established in this subsection. Accordingly, the rule-making may also, to the extent required, assess whether an adverse impact is likely to occur over the time period relevant to each rule-making proceeding. However, the determination should be based upon anticipated, rather than actual, adverse impacts only in extraordinary circumstances in which the evidence of likelihood of future adverse impact during that time period is highly specific, strong and persuasive. Otherwise, the prohibition would be unduly undermined. The focus of the rulemaking proceeding must remain on whether the prohibition on circumvention of technological protection measures (such as encryption or scrambling) has caused any substantial adverse impact on the ability of users to make non-infringing uses. Adverse impacts that flow from other sources-including marketplace trends, other technological developments, or changes in the roles of libraries, distributors or other intermediaries-or that are not clearly attributable to such a prohibition, are outside the scope of the rulemaking. So are mere inconveniences, or individual cases, that do not rise to the level of a substantial adverse impacts In assessing the impact of the implementation of technological measures, and of the law against their circumvention, the rule-making proceedings should consider the positive as well as the adverse effects of these technologies on the availability of copyrighted materials. The technological measures-such as encryption, scrambling and electronic envelopes-that this bill protects can be deployed, not only to prevent piracy and other economically harmful unauthorized uses of copyrighted materials, but also to support new ways of disseminating copyrighted materials to users, and to safeguard the availability of legitimate uses of those materials by individuals. These technological measures may make more works more widely available, and the process of obtaining permissions easier. 7 For example, an access control technology under section 1201(a) would not necessarily prevent access to a work altogether, but could be designed to allow access during a limited time period, such as during a period of library borrowing. Technological measures are also essential to a distribution strategy that allows a consumer to purchase a copy of a single article from an electronic database, rather than having to pay more for a subscription to a journal containing many articles the consumer does not want. Use-facilitating technological protection measures such as these would simultaneously protect the legitimate interests of copyright owners while enabling the kinds of uses by individuals that have been so important in the past in promoting the access of all Americans to the bounty of creative works available from our writers, artists, musicians, composers, film makers, and software developers. The Secretary should give appropriate weight to the deployment of such technologies in evaluating whether, on balance, the prohibition against circumvention of technological measures has caused an adverse impact on the specified categories of users of any particular class of copyrighted materials. Similarly, in assessing the impact of the prohibition on the ability to make noninfringing uses, the Secretary should take into consideration the availability of works in the particular class in other formats that are not subject to technological protections. Deciding the scope or boundaries of a "particular class" of copyrighted works as to which the prohibition contained in section 1201(a)(l) has been shown to have had an adverse impact is an important issue to be determined during the rulemaking proceedings. The illustrative list of categories appearing in section 102 of Title 17 is only a starting point for this decision. For example, the category of "literary works" (17 USC 102(a)(l)) embraces both prose creations such as journals, periodicals or books, and computer programs of all kinds. It is exceedingly unlikely that the impact of the prohibition on circumvention of access control technologies will be the same for scientific journals as it is for computer operating systems; thus, these two categories of works, while both "literary works," do not constitute a single "particular class" for purposes of this legislation. Even within the category of computer programs, the availability for fair use purposes of PC-based business productivity applications is unlikely to be affected by laws against circumvention of technological protection measures in the same way as the availability for those purposes of videogames distributed in formats playable only on dedicated platforms, so it is probably appropriate to recognize different "classes" here as well. At the same time, the Secretary should not draw the boundaries of "particular classes" too narrowly. For instance, the section 102 category "motion pictures and other audiovisual works" may appropriately be subdivided, for purposes of the rulemaking, into classes such as "motion pictures," "television programs," and other rubrics of similar breadth. However, it would be inappropriate, for example, to subdivide overly narrowly into particular genres of motion pictures, such as Westerns, comedies, or live action dramas. Singling out specific types of works by creating in the rulemaking process "particular classes" that are too narrow would be inconsistent with the intent of this bill. 8 Of course, the Secretary is not required to make a determination under the statute with respect to any class of copyrighted works. In any particular 3-year period, it may be determined that the conditions for the exemption do not exist. Such an outcome would reflect that the digital information marketplace is developing in the manner which is most likely to occur, with the availability of copyrighted materials for lawful uses being enhanced, not diminished, by the implementation of technological measures and the establishment of carefully targeted legal prohibitions against acts of circumvention. A determination that the exceptions in Section 1201(a)(l) are in effect for a particular class of works means that enforcement against someone who circumvents a technological measure that effectively controls access to a work falling in that class may not be undertaken during the period (not to exceed three years) covered by the determination. The determination does not change the illegality of (or the ability to enforce against) any other act of circumvention of an access control technology. For instance, if the same scrambling technology is used to protect two different classes of copyrighted works, and the Secretary makes a determination that the exceptions apply as to the first class, someone who circumvents that technology to gain unauthorized access to a work in the second class would violate the prohibition and would be subject to enforcement action. Subparagraph (D) provides for publication by the Secretary of a list of any class of works the Secretary has determined, pursuant to subparagraph (C), to be or likely to be adversely affected. Pursuant to subparagraph (B), the prohibition contained in subparagraph (A) shall not apply to the entities described in subparagraph (B) with respect to the particular class(es) of works published, for the following three-year period. During the next rulemaking proceeding, if it is determined that there is no longer an adverse impact on noninfringing use, the prohibition will apply and the exemption will cease to exist. Subparagraph (E) provides that the exception contained in subparagraph (B) from the application of the prohibition contained in subparagraph (A) may not be used as a defense in any suit brought to enforce any provision of this title other than those contained in paragraph (1). For example, it would not provide a defense to a claim based on the manufacture or sale of devices under paragraph (2) or section 120Kb), or to a copyright infringement claim. Paragraph (2), In order to provide meaningful protection and enforcement of the copyright owners right to control access to his or her copyrighted work, this paragraph supplements the prohibition against the act of circumvention in paragraph (1) with prohibitions on creating and making available certain technologies, products and services used, developed or advertised to defeat technological protections against unauthorized access to a work. Similar laws have been enacted in related contexts. See, e.g., 17 U.S.C. 1002(a) (prohibiting the import, manufacture, or distribution of digital audio recording equipment lacking specified characteristics and prohibiting the import, manufacture, or distribution of any device, or the offer to perform any service, the primary purpose or effect of which is to circumvent the serial copy management system re- 9 quired for digital audio equipment); 47 U.S.C. 553(a)(2) (prohibiting the manufacture or distribution of equipment intended for the unauthorized reception of cable television service); 47 U.S.C. 605(e)(4) (prohibiting the manufacture, assembly, import, and sale of equipment used in the unauthorized decryption of satellite cable programming.) Specifically, paragraph (2) prohibits manufacturing, importing, offering to the public, providing, or otherwise trafficking in certain technologies, products, services, devices, components, or parts that can be used to circumvent a technological protection measure that otherwise effectively controls access to a work protected under Title 17. It is drafted carefully to target "black boxes," and to ensure that legitimate multipurpose devices can continue to be made and sold. For a technology, product, service, device, component, or part thereof to be prohibited under this subsection, one of three conditions must be met. It must: (1) be primarily designed or produced for the purpose of circumventing; (2) have only a limited commercially significant purpose or use other than to circumvent; or (3) be marketed by the person who manufactures it, imports it, offers it to the public, provides it or otherwise traffics in it, or by another person acting in concert with that person, for use in circumventing a technological protection measure that effectively controls access to a work protected under Title 17. This provision is designed to protect copyright owners, and simultaneously allow the development of technology. This three-part test, established for determining when the manufacture, distribution or other provision of a product or service constitutes a violation, is the core of the anti-circumvention provisions of this legislation. This test (also spelled out in 1201(b)(l)), as explicated by the Judiciary Committee report, stands on its own. While this legislation is aimed primarily at "black boxes" that have virtually no legitimate uses, trafficking in any product or service that meets one or more of the three points in this test could lead to liability. It is not required to prove that the device in question was "expressly intended to facilitate circumvention." At the same time, the manufacturers of legitimate consumer products such as personal computers, VCR's, and the like have nothing to fear from this legislation because those legitimate devices do not meet the three-part test. The Sony test of "capab[ility] of substantial noninfringing uses," while still operative in cases claiming contributory infringement of copyright, is not part of this legislation, however. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L. Ed. 2d 574 (1984). The relevant test, spelled out in the plain and unchanged language of the bill, is whether or not a product or service "has only limited commercially significant purpose or use other than to circumvent." Paragraph (3) defines certain terms used throughout subsection (a): (1) "circumvent a technological measure"-for purposes of subsection (a) only, which covers technological protections against unauthorized access to a work, this term means "to descramble a scrambled work, to decrypt an encrypted work, or 10 otherwise to avoid, bypass, remove, deactivate, or impair a technological protection measure, without the authority of the copyright owner," (2) "effectively controls access to a work"-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 report issued by the Committee on Commerce, to which certain provisions of this legislation were referred sequentially, and the statements of some individual members, could be read to provide a more narrow definition of the "effective technological measures" this legislation is intended to protect against circumvention. These statements may reflect a misapprehension of the approach that this legislation has consistently taken ever since it was introduced. Throughout the legislative process, the phrase "technological measure" (or, in earlier versions of the legislation, "technological protection measure")^ has been treated in H.R. 2281 in terms of the function such a measure would perform, rather than the specific technology to be used or the means for developing it. The Committee on the Judiciary took this approach in Grafting this legislation in recognition that technology evolves so rapidly that it would be impractical to freeze in time the applicability of these provisions by limiting them to specifically named technologies. The bill does define the functions of the technological measures that are covered-that is, what it means for a technological measure to "effectively control access to a work" (section 1201 (a)(3)(B)) and to "effectively protect a right of a copyright owner under this title" [i.e, Title 17, United States Code] (section 1201(b)(2)(B)). The practical, common- sense approach taken by H.R. 2281 is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work, or to control copying, distribution, public performance, or the exercise of other exclusive rights in a work, then the "effectiveness" test is met, and the prohibitions of the statute are applicable. This test, which focuses on the function performed by the technology, provides a sufficient basis for clear interpretation. It applies equally to technologies used to protect access to works whether in analog or digital formats. This approach also follows that taken by the parallel provisions of the Communications Act. Section 553(a) of Title 47, for example, prohibits both the act of cable signal theft, and the manufacturing or distribution of "equipment intended . . . for unauthorized reception of any communications service offered over a cable system." In enacting this provision, Congress did not seek to define the particular technologies used by cable systems to prevent theft of service, nor the particular means of circumvention that were prohibited. Rather, the prohibition extends to any unauthorized act of "intercepting" cable signals, as well as to any equipment whose intended function is to circumvent any protective mechanism. --------------- Either phrase must be distinguished from "standard technical measure," as that phrase is used in Title II of the bill. 11 The Committee on the Judiciary, which possesses primary Jurisdiction over this legislation, considered the argument that the lack of a definition of "technological measure" leaves manufacturers in the dark as to the range of protective technologies to which their products must respond. The Committee concluded that any such concern is unfounded. No legitimate manufacturer of consumer electronics devices or computer equipment could reasonably claim to be left in doubt about the course of action to be avoided, simply because the phrase "technological measure" is not itself defined in the bill. The only obligation imposed on manufacturers by this legislation is a purely negative one: to refrain from affirmatively designing a product or a component primarily for the purpose of circumventing a protective technology that effectively controls unauthorized access to or uses of a copyrighted work. Any effort to read into this bill what is not there-a statutory definition of "technological measure"-or to define in terms of particular technologies what constitutes an "effective" measure, could inadvertently deprive legal protection to some of the copy or access control technologies that are or will be in widespread use for the protection of both digital and analog formats. Perhaps more importantly, this approach runs a substantial risk of discouraging innovation in the development of protective technologies. For instance, today the standard form of encryption of digital materials involves scrambling its contents so that they are unintelligible unless processed with a key supplied by the copyright owner or its agent. However, in a field that changes and advances as rapidly as encryption research, it would be short-sighted to write this definition into a statute as the exclusive technological means protected by this bill. If only those measures that are in use or on the "drawing board" today are effectively protected against circumvention, the innovative new methods that are certain to be developed as a result of this legislation may fall outside the scope of any definition Congress can write today. It would then not be a violation to circumvent these new methods of protection, or even to go into the business of making devices or providing services for the purpose of circumventing them, even though the new methods are effective, in the ordinary course of their operation, in controlling access to or the exercise of exclusive rights with respect to a work, and even if they accomplish these goals more efficiently and effectively than the measures that are in place or under development today. As a result, property owners would not be protected and there would be no market for such measures to protect copyright. The flexible and pragmatic approach of this legislation avoids this scenario by making it clear that if a technology works to control access or the exercise of exclusive rights-in other words, if it meets the definitions of effectiveness contained in subsections 1201(a)(3)(B) or 1201(b)(2)(B)-no matter how it does so, the prohibitions of the statute are applicable. Similarly, the statements in the Commerce Committee report that attempt to read out of the ambit of "effective" technological measures those technologies that affect the appearance of the display or performance of the works protected find no support in either the text of the bill or in the authoritative legislative history 12 of these provisions prepared by the Judiciary Committee. The definitions contained in sections 1201(a)(3)(B) and 1201(b)(2)(B) require no further embellishment. The statements contained in the Commerce Committee report are problematic because they could be read to suggest that electronic equipment manufacturers should feel free to circumvent technological protections if they believe their equipment would function better without them in displaying or performing works. For example, some forms of digital "watermarking" superimpose a faint image on a copyrighted work to protect it from unauthorized copying. If there were a ^playability" exception to the anti- circumvention provisions of this bill, as these statements incorrectly imply, then devices or services specifically designed for the purpose of removing such "watermarks" could be immunized under the pretext that they improve image resolution. Such a result would undermine the purpose of this legislation. While the best approach is for copyright owners and equipment manufacturers to cooperate in the development of measures that can maximize protection while minimizing impact, it is not the intent of this legislation that manufacturers should have the authority to determine unilaterally which protective technologies copyright owners may employ. More importantly, there is nothing in the bill, nor in the authoritative legislative history, which supports the assertion that circumvention of an otherwise effective technological measure is acceptable if done in the name of "playability." Since the text of the legislation relating to this has not been amended to establish this principle, any effort to read such a principle into the words the sponsors wrote, and that both the Judiciary Committee and the Commerce Committee approved, should be dismissed. Subsection (b) applies when a person has obtained authorized access to a copy or a phonorecord of a work, but the copyright owner has put in place technological measures that effectively protect his or her rights under Title 17 to control or limit the nature of the use of the copyrighted work. Paragraph (1), Paralleling subsection (a)(2), above, paragraph (1) seeks to provide meaningful protection and enforcement of copyright owners* use of technological measures to protect their rights under Title 17 by prohibiting the act of making or selling the technological means to overcome these protections and facilitate copyright infringement. Paragraph (1) prohibits manufacturing, importing, offering to the public, providing, or otherwise trafficking in certain technologies, products, services, devices, components, or parts thereof that can be used to circumvent a technological measure that effectively protects a right of a copyright owner under Title 17 in a work or portion thereof. Again, for a technology, product, service, device, component, or part thereof to be prohibited under this subsection, one of three conditions must be met. It must: (1) be primarily designed or produced for the purpose of circumventing; (2) have only limited commercially significant purpose or use other than to circumvent; or (3) be marketed by the person who manufactures it, imports it, offers it to the public, provides it, or otherwise traffics in it, 13 or by another person acting in concert with that person, for use in circumventing a technological protection measure that effectively protects the right of a copyright owner under Title 17 in a work or a portion thereof. Like subsection (a)(2), this provision is designed to protect copyright owners, and simultaneously allow the development of technology. Paragraph (2) defines certain terms used in subsection (b): (1) "circumvent protection afforded by a technological measure" is defined as "avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure." (2) "effectively protects a right of a copyright owner under Title 17"-a technological measure effectively protects a right of a copyright owner under Title 17 "if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right under Title 17 of a copyright owner." The legislative history described under subsection (a)(3), above, pertains to subsection (b) as well. As stated earlier, the practical, common-sense approach taken by H.R. 2281 is that if, in the ordinary course of its operation, a technology works to control copying, distribution, public performance, or the exercise of other exclusive rights in a work, then the "effectiveness" test is met, and the prohibitions of the statute are applicable. This test, which focuses on the function performed by the technology, provides a sufficient basis for clear interpretation. It applies equally to technologies used to protect works whether in analog or digital formats. Further, there is nothing in the bill, nor in the authoritative legislative history, which supports the assertion that circumvention of an otherwise effective technological measure is acceptable if done in the name of "playability" Subsection (c) provides that section 1201 shall not have any effect on rights, remedies, limitations, or defenses to copyright infringement, including fair use, under Title 17. Paragraph (2) provides that section 1201 shall not alter the existing doctrines of contributory or vicarious liability for copyright infringement in connection with any technology, product, service, device, component or part thereof. Together, these provisions are intended to ensure that none of the provisions in section 1201 affect the existing legal regime established in the Copyright Act and case law interpreting that statute. Paragraph (3) clarifies that nothing in section 1201 creates a mandate requiring manufacturers of consumer electronics, telecommunications, and computing products to design their products or their parts and components to respond to any particular technological measure employed to protect a copyrighted work. While the failure of a product to respond to a particular technological measure does not in and of itself create liability, neither does it immunize those trafficking in the product from liability under section 1201(a)(2) or (b), if the tests of liability in those provisions are otherwise met. Subsection (d) allows a nonprofit library, nonprofit archives or nonprofit educational institution to obtain access to a copyrighted work for the sole purpose of making a good faith determination as 14 to whether it wishes to acquire a copy, or portion of a copy, of that work in order to engage in conduct permitted under the Copyright Act, such as a fair use under section 107. A qualifying institution may not gain access for a period of time longer than necessary to determine whether it wishes to obtain a copy, or portion of a copy, for such purposes and the right to gain access shall not apply for any other purpose. The right to obtain access under this paragraph only applies when the nonprofit library, nonprofit archives, or nonprofit educational institution cannot obtain a copy of an identical work by other means, and such an entity may not use the exemption in this paragraph for commercial advantage or financial gain without exposing itself to penalties for violation of section 1201. This paragraph can not be used as a defense to the prohibitions on manufacturing or selling devices contained in subsection (a)(2) or subsection (b). Subsection (e) makes clear that the prohibitions in section 1201 do not prohibit any lawfully authorized investigative, protective, or intelligence activity by or at the direction of a federal, state, or local law enforcement agency, or of an intelligence agency of the United States. Subsection (f) is intended to allow legitimate software developers to continue engaging in certain activities for the purpose of achieving interoperability to the extent permitted by law prior to the enactment of this chapter. The objective is to ensure that the effect of current case law interpreting the Copyright Act is not changed by enactment of this legislation for certain acts of identification and analysis done in respect of computer programs. See, Sega Enterprises Ltd. v. Accolade Inc., 977 F.2d 1510, 24 U.S.P.Q.2d 1561 (9th Cir. 1992). The purpose of this subsection is to avoid hindering competition and innovation in the computer and software industry. Paragraph (1) permits the circumvention of access control technologies for the sole purpose of achieving software interoperability. For example, this subsection permits a software developer to circumvent an access control technology applied to a portion or portions of a program in order to perform the necessary steps to identify and analyze the information needed to achieve interoperability. Subsection (f)(l) permits the act of circumvention in only certain instances. First, the copy of the computer program which is the subject of the analysis must be lawfully acquired. That is, the computer program must be acquired from a legitimate source, along with any necessary serial codes, passwords, or other such means as may be necessary to be able to use the program as it was designed to be used by a consumer of the product. The permitted acts are limited in application to those elements of the program which must be analyzed to achieve the sole permitted purpose, which is interoperability of an independently created program with other programs. Interoperability is defined in paragraph (4) as the ability of computer programs to exchange information, and for such programs mutually to use the information which has been exchanged. The resulting product must be a new and original work, not infringing the original computer program. In addition, the objective of the analysis must be to identify and extract such elements as are necessary to achieve interoperability and which are not otherwise 15 available to the person. Finally, the goal of this section is to ensure that current law is not changed, and not to encourage or permit infringement. Thus, each of the acts undertaken must fall within the scope of fair use on otherwise avoid infringing the copyright of the author of the underlying computer program. Paragraph (2) recognizes that to accomplish the acts permitted under paragraph (1) a person may, in some instances, have to make and use certain tools. In most instances these will be generally available tools that programmers use in developing computer programs, such as compilers, trace analyzers and dissassemblers, which do not fall within the prohibition of this section. In certain instances, it is possible that a person may have to develop special tools to achieve the permitted purpose of interoperability. Thus, this provision creates an exception to the prohibition on making circumvention tools contained in sections 1201(a) (2) and (b). These tools can be either software or hardware. Again, this provision is limited by a general ban on acting in a way that constitutes infringing activity. Paragraph (3) recognizes that developing complex computer programs often involves the efforts of many persons. For example, someone may be hired to develop a specific portion of the final product. For that person to perform this task, some of the information acquired through the permitted analysis, and the tools to accomplish it, may have to be made available to that person. This subsection allows developers of independently created software to rely on third parties either to develop the necessary circumvention tools or to identify the necessary information to achieve interoperability. The ability to rely on third parties is particularly important for small software developers who do not have the capability of performing these functions in-house. This provision permits such sharing of information and tools. Recognizing, however, that making circumvention information or tools generally available would undermine the objectives of this Act, the provision imposes strict limitations. Sharing information and tools is permitted solely for the purpose of achieving interoperability of an independently created computer program with other programs. If a person makes this information available for another purpose, he is not covered by this exemption. In addition, the acts are permitted only to the extent that they do not constitute infringement under this title, or violate applicable law other than this title. Paragraph (4) defines "interoperability" as the ability of computer programs to exchange information, and for such programs mutually to use the information which has been exchanged. The seamless exchange of information is a key element of creating an interoperable independently created program. This provision applies to computer programs as such, regardless of their medium of fixation and not to works generally, such as music or audiovisual works, which may be fixed and distributed in digital form. Accordingly, since the goal of interoperability is the touchstone of the exceptions contained in paragraphs (l)-(3), nothing in those paragraphs can be read to authorize the circumvention of any technological protection measure that controls access to any work other than a computer program, or the trafficking in products or services for that purpose. 16 Subsection (g) is intended to facilitate the purpose of this bill, namely, to improve the ability of copyright owners to prevent the theft of their works, including by applying technological measures. The effectiveness of such measures depends in large part on the rapid and dynamic development of better technologies, including encryption-based technological measures. The development of encryption science requires ongoing research and testing by scientists of existing encryption methods in order to build on those advances, thus promoting encryption technology generally. The goals of section 1201 would be poorly served if these provisions had the undesirable consequence of chilling legitimate research activities in the area of encryption. Subsection (g) ensures that the prohibitions contained in this bill do not have such an unintended negative effect. This subsection provides that generally available encryption testing tools meeting certain specifications will not be made illegal by this Act. If each of these tools has a legitimate and substantial commercial purpose-testing security and effectiveness-it is therefore explicitly excluded from the prohibition in section 1201. In addition to the exemption contained in this subsection, the testing of specific encryption algorithms would not fall within the scope of 1201, since mathematical formulas as such are not protected by copyright. Thus, testing of an encryption algorithm or program that has multiple uses, including use as a technological measure to protect copyrighted works, would not be prohibited when the encryption is in a form not implemented as a technological measure. Similarly, the testing of encryption technologies developed by the government of the United States would not violate section 1201, since copyright does not subsist in such subject matter. Also, encryption research will often be undertaken with the consent or at the direction of the copyright owner and therefore will not give rise to any action under section 1201. For example, a cryptographer may use various cryptoanalytic research techniques to discover a flaw in the U.S. government's Escrowed Encryption Standard (EES) used in the Clipper Chip and Fortezza cards. The flaw allows users to circumvent essential features of the algorithm. Since these encryption products are not covered by copyright, because they are merely mathematical algorithms in addition to being owned by the U.S. government, the cryptographer's acts do not violate 1201. Another example would be a company, in the course of developing a new cryptographic product, sponsoring a crypto-cracking contest with cash prizes. Contestants would not violate section 1201, since the research acts are specifically authorized. Significantly, section 1201 does not make illegal cryptographic devices that have substantial legitimate purposes other than to circumvent technological protection measures as applied to a work. For example, many popular word-processing and other computer programs include a security feature allowing users to password-protect documents (employing a low-grade form of encryption.) It is not uncommon for users of such products to forget or lose their passwords for such documents, making their own protected works unrecoverable. As a result, many independent programmers have created utilities designed to assist in the recovery of passwords or 17 password-protected works. Several of these utilities are distributed over the Internet as freeware or shareware. Because these utilities have a substantial legitimate use, and because they would be used by persons to gain access to their own works, these devices do not violate section 1201. H.R. 2281 would also not prohibit certain kinds of commercial "key-cracker" products, e.g., a computer program optimized to crack certain 40-bit encryption keys. Such machines are often rented to commercial customers for the purpose of quick data recovery of encrypted data. So long as these devices have a substantial legitimate use, and do not become used principally to facilitate infringement, they would not be prohibited by section 1201. Today, network and web site management and security tools increasingly contain components that automatically test a system's security and identify common vulnerabilities. These programs are valuable tools for systems administrators and web site operators, to use in the course of their regular testing of their systems' security. Again, because these devices are good products put to a good use, they do not fall within the scope of this statute. In sum, the prohibition on "devices" as written does not encompass many forms of useful encryption products. Subsection (g) is specifically structured to go further, and allow the development and use of certain additional encryption products used for research purposes. Under the exemption, it would not be prohibited conduct for a person to circumvent a technical measure effectively controlling access to a copyrighted work in the course of engaging in good faith encryption research if the following conditions apply: that person has lawfully obtained the encrypted copy of the copyrighted work; circumvention is necessary to conduct good faith encryption research; the person first made a good faith effort to obtain authorization from the copyright owner before circumventing; and the act of circumvention does not constitute copyright infringement or a violation of other applicable law, such as 18 USC 1030 or the provisions of the Computer Fraud and Abuse Act of 1986. Paragraph (3) lists the factors to be used in determining whether a person qualifies for the exemption contained in this subsection. Specifically, in any suit for violation of section 1201 where this subsection is used as an affirmative defense, a court should consider whether the information derived from the encryption research was disseminated by the defendant to others, and if so, whether it was done in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, instead of to facilitate infringement or to otherwise violate the law, such as laws protecting privacy rights or security. A court should also consider whether the defendant is engaged in a legitimate course of study, is employed, or is appropriately trained and experienced, in the field of encryption technology, and whether the defendant provides the copyright owner of the work in question with notice of the findings and documentation of the research conducted in good faith. Paragraph (4) allows a person to develop the means to conduct the encryption research allowed in this subsection notwithstanding the prohibition on devices contained in subsection (a)(2). Specifically, a person may develop and employ technological means to cir- 18 cumvent a technological measure as described in paragraph (2), and provide the technological means to another person with whom he or she is working collaboratively, only for the purpose of conducting research in accordance with paragraph (2), or for the limited purpose of having that other person verify the research conducted in accordance with paragraph (2). Paragraph (5) requires the Under Secretary of Commerce for Intellectual Property Policy, the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to jointly report to Congress and to suggest any changes in legislation no later than one year after the effective date of section 1201, regarding the effect this subsection has had on encryption research and the development of encryption technology, the adequacy and effectiveness of technological measures designed to protect copyrighted works pursuant to the protections offered under section 1201, and the protection of copyright owners against unauthorized access to their copyrighted works. Subsection (h). This provision contains two exceptions regarding minors. To alleviate concern that section 1201(a) might inadvertently make it unlawful for parents to protect their children from pornography and other harmful material available on the Internet, or have unintended legal consequences for manufacturers of products designed solely to enable parents to protect their children in this fashion, and to alleviate concern that section 1201(a) might in-advertently make it unlawful for parents to view a copy of a test, examination or other evaluation of their child, subsection (h) allows circumvention under very specific and limited circumstances. Paragraph (1) allows a court, in applying the prohibition contained in subsection (a) to a component or part of a technology, product, service or device which is subject to a case or controversy before it, to consider the necessity for the intended and actual incorporation of the component or part in the technology, product, service or device, if the technology, product, service or device does not itself violate the provisions of this title and has as its sole purpose the prevention of access of minors to material on the Internet. This paragraph is intended to allow the continued manufacturing and development of specific technology to aid parents in preventing access by their children to objectionable material in the digital environment. Paragraph (2) allows a parent of a minor child (an elementary or secondary school student) to circumvent a technological measure effectively controlling access to a copyrighted test, examination, or other evaluation of that minor child, if the parent has first made a good faith effort to obtain authorization from the copyright owner to view the test, examination, or other evaluation and if, as a result of the copyright owner's refusal, circumvention is necessary for purposes of obtaining a copy of such test, examination or other evaluation. Subsection (i) deals with personal privacy concerns. It allows the circumvention of a technological measure effectively controlling access to a copyrighted work for the limited purpose of identifying and disabling any capability of the measure or work to collect or disseminate personally identifying information reflecting the online activities of the user, only if the user is not provided with notice 19 and the capability to prevent or restrict such collection or dissemination, and only if the circumvention conducted to identify and disable the ability of the measure to collect or disseminate has no other effect on the ability of any person to gain access to any work. It is possible that certain encryption or other technologies used to protect copyrighted works under section 1201 may collect or disseminate personally identifying information about the online activities of a user. To maintain privacy in the digital environment, subsection (i) was established to allow the circumvention of such technologies in order to identify and disable any ability to collect or disseminate personally identifying information, where such an ability to identify and disable is not already provided to the user. It is hoped that this subsection will serve as a deterrent to the development and use of technologies that are capable of such collection and information and do not either provide a method by which a user may disable those capabilities, or fully disclose the lack of such methods. Section 1202: Integrity of Copyright Management Information. Subsection (a) establishes a general prohibition against knowingly providing, distributing or importing false copyright management information ("CMP), as defined in subsection (c). There are two prerequisites that must be met for the conduct to be illegal: (1) the person providing, distributing or importing the false CMI must know the CMI is false, and (2) he or she must do so with the intent to induce, enable, facilitate or conceal an infringement of any right under Title 17. The prohibition in this subsection does not apply to the ordinary and customary practices of broadcasters or the inadvertent omission of credits from broadcasts of audiovisual works, since such acts do not involve the provision of false CMI with the requisite knowledge and intent. Subsection (b) establishes a general prohibition against deliberately removing or altering CMI, and against distributing or importing for distribution altered CMI or distributing, importing for distribution or publicly performing works in which CMI has been removed. Three specific acts are prohibited if they are committed without the authority of the copyright owner or the law, and if they are done knowing, or with respect to civil remedies under section 1203, having reasonable grounds to know, that they will induce, enable, facilitate or conceal a copyright infringement: (1) intentionally removing or altering CMI; (2) distributing or importing for distribution CMI, knowing that it has been altered without the authority of the copyright owner or the law; or (3) distributing, importing for distribution, or publicly performing works, copies of works, or phonorecords, knowing that CMI has been removed or altered without the authority of the copyright owner or the law. As with subsection (a), the prohibition in this subsection does not include the ordinary and customary practices of broadcasters or the inadvertent omission of credits from broadcasts of audiovisual works, since such omissions do not involve the requisite knowledge and intent. Subsection (c) defines CMI. To fall within the definition, there is a threshold requirement that the information be conveyed in con- 20 nection with copies or phonorecords, performances or displays of the copyrighted work. The term "conveyed" is used in its broadest sense and is not meant to require any type of transfer, physical or otherwise, of the information. It merely requires that the information be accessible in conjunction with, or appear with, an embodiment of the work itself. CMI is defined as any of the following: (1) the title of a work or other information that identifies the work; (2) the author's name or other information that identifies the author; (3) the copyright owner's name or other information that identifies the copyright owner; (4) with the exception of public performances of works by radio and television broadcast stations, a performer's name or other information that identifies a performer whose performance is fixed in a non-audiovisual work; (5) with the exception of public performances of works by radio and television broadcast stations, the name of or other identifying information about a writer, performer, or director who is credited in an audiovisual work; (6) terms and conditions for use of a work; and (7) numbers and symbols which refer to, link to, or represent the above information. As noted above, both treaties require that numbers and symbols be included within the definition of CMI. Links, such as embedded pointers and hyperlinks, to the above information are also included. The phrase "links to such information" was included in paragraph (7) because removing or altering a link to the information will have the same adverse effect as removing or altering the information itself. Finally, paragraph (c)(8) of the definition permits the Register of Copyrights to prescribe by regulation other information that, if conveyed in connection with a work, is to be protected as CMI. To protect the privacy of users of copyrighted works, however, the Register of Copyrights may not include within the definition of CMI any information concerning users of copyrighted works. Section 1202 does not mandate the use of CMI, or of any particular type of CMI. It merely protects the integrity of CMI if a party chooses to use it in connection with a copyrighted work, by prohibiting its deliberate deletion or alteration. It also should be noted that the definition of "copyright management information" does not encompass, nor is it intended to encompass, tracking or usage information relating to the identity of users of works. It would be inconsistent with the purpose and construction of this bill and contrary to the protection of privacy to include tracking and usage information within the definition of CMI. Section 1202 imposes liability for specified acts. It does not address the question of liability for persons who manufacture devices or provide services. Subsection (d) makes clear that the prohibitions in section 1202 do not prohibit any lawfully authorized investigative, protective or intelligence activity by or at the direction of a federal, state or local law enforcement agency, or of an intelligence agency of the United States. Subsection (e) recognizes special problems that certain broadcasting entities may have with the transmission of copyright management information. Under this subsection, radio and television broadcasters, cable systems, and persons who provide programming to such broadcasters or systems, who do not intend to induce, en- 21 able, facilitate or conceal infringement, are eligible for an exemption from liability for violation of the CMI provisions of subsection (b) in certain, limited circumstances. In the case of an analog transmission, paragraph (1) provides that an eligible person will not be held liable for violating provisions of subsection (b) if it is not "technically feasible" for that person to avoid the violation or if avoiding the violation would "create an undue financial hardship." Avoiding a violation of subsection (b) by transmitting credits that are of excessive duration in relation to standard practice in the relevant industries (for instance, the motion picture and television broadcast industries) is one example of an activity that may "create an undue Financial hardship" under paragraph (1). As indicated above, this exemption applies only in the absence of an intent to induce, enable, facilitate or conceal infringement by engaging in such activity. Paragraph (2) provides an exemption in the case of certain digital transmissions, and contemplates the creation of voluntary digital transmission standards for the placement of copyright management information. Separate standards are likely to be set for the location of copyright management information in different categories of works. For instance, the standard(s) for the location of the name of a copyright owner in a sound recording or musical work to be broadcast by radio stations may differ-and be set in a separate standard-setting process(es)-from the standard for the location of such information in a motion picture or other audio-visual work to be broadcast by television stations. Subparagraph (A) provides that if a digital transmission standard for the placement of copyright management information for a category of works is set in a voluntary, consensus standard-setting process involving a representative cross-section of the relevant copyright owners and relevant transmitting industry, including but not limited to representatives of radio or television broadcast stations, cable systems, and copyright owners of a category of works that are intended for public performance by such stations or systems, an eligible person will not be liable for a violation of subsection (b) if the copyright management information involved in the violation was not placed in a location specified by the standard for that information. The eligible person, however, cannot qualify for this limitation on liability if that person was responsible for the nonconforming placement, or had the intent to induce, enable, facilitate or conceal infringement. Paragraph (2)(B)(i) provides that until such a standard is set for a category of works, an eligible person will not be liable for a violation of subsection (b) if the transmission of the copyright management information would cause a perceptible visual or aural degradation of the digital signal. Clause (ii) provides that during this time period before a standard is set, an eligible person also will not be liable if the digital transmission of the information would conflict with an applicable government regulation or industry standard relating to the transmission of information in a digital signal, such as the regulation requiring the placement of closed captioning in line 21 of the vertical blanking interval (47 C.F.R. 79.1, implementing 47 U.S.C. 613). For purposes of this clause, however, the applicable industry-wide standard must be of a type specified in sub- 22 clauses (II) or (III). The first type, defined in subclause (II), includes only those standards that were adopted by a voluntary, consensus standards body, such as the Advanced Television Systems Committee, before the effective date of section 1202. The other type, defined in subclause (III), includes only those standards adopted in a voluntary, consensus standards-setting process open to participation by groups, including but not limited to, a representative cross-section of radio or television broadcast stations, cable systems, and copyright owners of a category of works that are intended for public performance by such stations or systems. Section 1203, Civil Remedies Section 1203 is divided into three paragraphs. Subsection (a) sets forth the general proposition that civil remedies are available for violations of sections 1201 and 1202. This paragraph establishes the jurisdiction for such civil actions as the "appropriate U.S. district court" and limits standing to bring a civil action to those persons injured by a violation of section 1201 or 1202. Subsection (b) sets out the powers of the court that hears the case. Subsection (b) permits the court to (1) grant temporary and permanent injunctions; (2) order the impounding of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation; (3) award damages; (4) allow the recovery of costs by or against any party; (5) award reasonable attorney's fees to the prevailing party; and (6) order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded. Subsection (c) is divided into five sections, each of which addresses the awarding of damages to the prevailing party. Paragraph (1) establishes the general proposition that a person who violates section 1201 or 1202 is liable for either actual damages and any additional profits of the violator or statutory damages. Paragraphs (2) and (3) specify that the complaining party may finalize a choice between the two types of damage awards at any time until the final judgment is entered. Paragraph (2) provides that, when the prevailing party opts for actual damages, the court shall award to that party the actual damages suffered by the party as a result of the violations, as well as any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. Paragraph (3) provides different statutory award amounts depending upon whether the civil action involves a section 1201 or 1202 violation. When the violation is a section 1201 violation and the prevailing party opts to recover an award of statutory damages, the prevailing party will be awarded statutory damages of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service. When the violation is a section 1202 violation and the prevailing party opts to recover an award of statutory damages, the prevailing party will be awarded statutory damages of not less than $2,500 or more than $25,000 for each violation. Paragraphs (4) and (5) set forth circumstances in which it would be appropriate to increase or decrease a damage award. Paragraph 23 (4) provides for an increased damage award when the violator is a repeat offender. Specifically, when the prevailing party establishes that a person violated section 1201 or 1202 within three years after a final judgment was entered against that person for another such violation, the award of damages may be increased to a sum of up to triple the amount that would otherwise be awarded. Paragraph (5)(A) provides that, when a violator of section 1201 or 1202 was not aware and had no reason to believe that its acts constituted a violation, the damage award may be reduced or remitted. Paragraph (5)(B) provides even greater protection for nonprofits. When a violator of section 1201 or 1202 is a nonprofit library, nonprofit archives, or nonprofit educational institution, and was not aware and had no reason to believe that its acts constituted a violation, the damage award shall be remitted entirely. Section 1204: Criminal Penalties, Subsection (a) provides for the availability of criminal penalties for violations of sections 1201 and 1202. The standard applicable under this section is identical to the standard used in section 506 of the Copyright Act to establish criminal violations. Subsection (a) also sets forth the penalties available for a criminal violations of sections 1201 and 1202 as "not more than $500,000 or imprisonment for not more than five years, or both." If the person who is found guilty of criminal violation of sections 1201 or 1202 is a repeat offender, section 1204 provides that penalties may be increased to "not more than $1,000,000 or imprisonment for not more than ten years, or both." Subsection (b) exempts completely any nonprofit library, nonprofit archives and nonprofit educational institution from the criminal penalties contained in subsection (a). Subsection (c) provides for a five-year statute of limitations for criminal offenses under chapter 12. Section 1205: Savings Clause Section 1205 deals with the relationship between this act and laws protecting privacy. It establishes that nothing in the new chapter 12 created under this title abrogates, diminishes, or weakens the provisions of any law that prevents the violation of individual privacy rights related to use of the Internet, nor does it provide any defense or element of mitigation in a criminal prosecution or civil action under law for the violation of those rights. Subsection (b) of Section 103 of this title is a conforming amendment which amends the table of chapters to accommodate the addition of a new chapter 12. Section 104: Development and Implementation of Technological Protection Measures Subsections (a)-(c) of section 105 contain a sense of the Congress staling that the Congress anticipates the development and implementation of technological measures which protect access to copyrighted works that will be developed by a broad consensus in an open, fair, multi-industry process, that will be made available on reasonable and nondiscriminatory terms, and that will not impose substantial costs or burdens on either the copyright owners who 24 will use them or on the manufacturers of hardware or software which will be used in conjunction with them. Congress anticipates that, pursuant to this legislation, these technological measures will include, but not be limited to, those which help nonprofit libraries to continue to lend copies to library users as they do today and in digital formats which do not infringe copyright; those which effectively protect against copyright infringement; and those which promote market place solutions for making works available in digital formats to consumers and users. Subsection (d) requires that the Under Secretary of Commerce for Intellectual Property Policy, the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information jointly submit a report and any suggestions for legislation to Congress every year for three years after the enactment of this title reviewing the impact of new section 1201 on individual access to copyrighted works in digital formats. The issues to be addressed in the report are described in paragraph (2). Section 105: Evaluation of Impact of Copyright Law and Amendments on Electronic Commerce and Technological Development Section 105 requires that the Under Secretary of Commerce for Intellectual Property Policy, the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information jointly submit a report and any suggestions for legislation to Congress within one year after the enactment of this title, evaluating the impact of this title and the development of electronic commerce on the operation of sections 109 and 117 of title 17, and the relationship between existing and emerging technology on the operation of those provisions. Section 109 of the Copyright Act is a codification of the judicially-developed "first sale doctrine," which limits the exclusive right of a copyright owner to distribute copies of the work to the first sale or transfer of any particular lawfully made copy. Thus, the owner of a particular copy lawfully made under the Act may, without the authority of the copyright owner, sell or otherwise dispose of the possession of that copy. The first sale doctrine does not readily apply in the digital networked environment because the owner of a particular digital copy usually does not sell or otherwise dispose of the possession of that copy. Rather, "disposition" of a digital copy by its owner normally entails reproduction and transmission of that reproduction to another person. The original copy may then be retained or destroyed. The appropriate application of this doctrine to the digital environment merits further evaluation and this section therefore calls for such an evaluation and report. Section 117 of the Copyright Act limits the exclusive rights of copyright owners by allowing the lawful owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that program if it is necessary as an essential step in the utilization of the program in conjunction with a machine or for archival purposes only. The amendments contained in Title III of this legislation further amend section 117 to allow for the unauthorized making of copies in certain specific circumstances during the repair or maintenance of a machine (see detailed legislative history in title III.) The impact of the use of encryption and other 25 technologies on these limitations also merits further evaluation and this section therefore calls for such an evaluation and report. Section 106: Effective Date This section establishes the general effective date of the proposed amendments in this bill as the date the bill is enacted into law. There are several exceptions to this effective date. These exceptions only apply to the technical amendments that are proposed in section 102 of the bill. The bill fixes the effective date of any provision in section 102 of the bill that specifically refers to the WIPO Copyright Treaty or the WIPO Performances and Phonograms Treaty as the date the respective Treaty enters into force. These exceptions were necessary because, as of the drafting of this bill, the two treaties have not entered into force and will not do so until three months after 30 States deposit their instruments of ratification or accession with the Director General of WIPO. The exceptions ensure that the amendments that refer specifically to the two treaties do not become effective until the treaties themselves become effective. In addition, it was necessary to refer to each treaty separately in this section, because the two treaties may enter into force at different times, and the provisions relating specifically to one treaty should not become effective as soon as the other treaty enters into force. Finally, the phrase "with respect to the United States" was added to ensure that, if the Treaties enter into force before the United States deposits its instrument of accession, the United States does not extend benefits to Member States of these Treaties until the United States becomes party to the Treaties. TITLE II-ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION Section 201: Short Title This section establishes that this title may be cited as the "Online Copyright Infringement Liability Limitation Act." Section 202: Limitations on Liability for Copyright Infringement Summary The "Online Copyright Infringement Liability Limitation Act" addresses concerns raised by a number of on-line service and Internet access providers regarding their potential liability when infringing material is transmitted on-line through their services. While several judicially created doctrines currently address the question of when liability is appropriate, providers have sought greater certainty through legislation as to how these doctrines will apply in the digital environment. Title II of this bill codifies a liability system based on the core of current case law dealing with the liability of on-line service providers, while narrowing and clarifying the law in other respects. It offers the advantage of incorporating and building on those judicial applications of existing copyright law to the digital environment that have been widely accepted as fair and reasonable. Subsection (a) of section 202 amends chapter 5 of the Copyright Act (17 U.S.C. 501, et seq.") to create a new section 512, entitled "Limitations on liability relating to material online." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 03:32:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA13116 for dvd-discuss-outgoing; Thu, 14 Sep 2000 03:32:23 -0400 Received: from web9403.mail.yahoo.com (web9403.mail.yahoo.com [216.136.129.109]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA13113 for ; Thu, 14 Sep 2000 03:32:22 -0400 Message-ID: <20000914073258.37998.qmail@web9403.mail.yahoo.com> Received: from [209.90.98.7] by web9403.mail.yahoo.com; Thu, 14 Sep 2000 00:32:58 PDT Date: Thu, 14 Sep 2000 00:32:58 -0700 (PDT) From: Phill K Subject: Re: [dvd-discuss] more of the judiciary commitee report To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You're right, it is depressing. From my brief skim the y did not want to 'limit' the meaning of the phrase 'circumventing device'. For it to be prohibited by this definition one of three conditions must be present; (1) be primarily designed or produced for the purpose of circumventing; (2) have only limited commercially significant purpose or use other than to circumvent; or (3) be marketed by the person who manufactures it, imports it, offers it to the public, provides it, or otherwise traffics So say I reversed engineered a DVD player that would be commercially significant, but because of condition (1) I could not produce it. Forgive me for stating the obvious, doesn't that indicate that this section grants the power of a patent (to the MPAA) as it controls the device that plays the DVD player (as MPAA defines DeCSS as a device), rather than protect the information being encrypted? So, are not patents and copyrights two different things constitutionally? One to control information, the other to control devices? Weren't they intended to be mutually exclusive by the writers of the constitution since they are mentioned separately? Doesn't the phrase "primarily designed" from clause (1) indicate a device? Also doesn't "produced"? You publish "plans" to a device. Then when you follow the plans (like a patent) you produce a 'device'. When somebody programs, it is universally acknowledged that she is "writing code". So, then, shouldn't clause (1) above read instead; (1)be primarily written or published for the purpose of circumvention. ??????????? The MPAA has been sending emails around telling website operators to "remove the circumvention device from your website". They have to be the first to refer to 'computer language' on paper as a device. The DeCSS is not a device until it is compiled and executed until then, DeCSS is nothing more than a bunch of symbols on a piece of paper or t-shirt. You publish code. They cannot say "please remove the code that you have published on your website" because publishing involves speech, which the DeCSS is. When it is compiled and executed, your computer becomes a decryption device, placing it under patent laws (and the clause (1) above). Is the DeCSS patented? If it is, then the US patent office has already published it. Then it follows that it is your computer that is the circumvention device not the DeCSS code by itself. By the reqasoning the MPAA uses, If I hold a sketch in my hand of the diagram of a gun, then I actually have a gun. So, shouldn't they be going after our computers (or more specifically after the individual computer user) rather than the source code? I humbly ask forgiveness as IANAL, but interpreting the law this way (as stinky as it is) accomplishes the real intent of the law in the first place (my opinion) without suspending free speech rights? This really begs the question why didn't the MPAA get a patent for their player??? Maybe something that watermarked the DVD without encrypting it? That way they could have had all the benefits that they are trying to get now without raping the constitution?? Is it because then they would be in control of the "home theater"? Thus maybe incur a revisit of the anti-trust action brought against them in the fifties because they were controlling theaters?? If they are misusing their copyright here (that is lose in court) couldn't they lose the copyright on all their movies for misapplication of Copyright?? I ask forgiveness in advance for my ignorance. __________________________________________________ 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 Sep 14 06:07:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA16388 for dvd-discuss-outgoing; Thu, 14 Sep 2000 06:07:16 -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 GAA16378 for ; Thu, 14 Sep 2000 06:07:14 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 14 Sep 2000 11:59:43 +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, 14 Sep 2000 11:27:09 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 14 Sep 2000 11:27:09 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914112709.B7391@lemuria.org> References: <20000914031130.1709.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000914031130.1709.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: > However releasing object code accompanied by source code changes this > entirely, even for the object code. In my work I regularly look back > and forth between object code and source code when doing tuning, > especially if I have object code specific information from an external > source (database server). Without the source, partial readings of the > object code would be a lot less useful, but if I have both I can do > more than with just either one alone. correct. there's another thing involved here: the compiler. turning source into an executable is far less straightforward than most people assume. and object code DOES have it's own properties, that are not present in the source. (exploits, anyone?) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 06:07:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA16406 for dvd-discuss-outgoing; Thu, 14 Sep 2000 06:07:17 -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 GAA16395 for ; Thu, 14 Sep 2000 06:07:16 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 14 Sep 2000 11:59:43 +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, 14 Sep 2000 11:30:06 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 14 Sep 2000 11:30:06 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914113006.C7391@lemuria.org> References: <20000914031130.1709.qmail@web510.mail.yahoo.com> <39C04BA3.8728477A@mediaone.net> <39C0584A.71AFDF43@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C0584A.71AFDF43@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: > object code is a continuum." And he goes on to say that "Not everyone > can understand each of these forms." I think an argument could be > made that the speech element of object code can be observed when run > on a computer. Even by someone without any programming knowledge. no, you are observing the FUNCTION of the code. > As an example, I remember a program that brought up a dialog box with > a button in the center that read "Click here for your pay raise." > When you moved the pointer towards the button, the button moved so that > you could never activate the button. The speech - a funny joke. it seems you americans have a very funny definition of the word "speech". nobody in europe (ok, nobody I know) would consider a moving button speech. is any expression speech in the US? is a painting speech? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 06:07:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA16413 for dvd-discuss-outgoing; Thu, 14 Sep 2000 06:07:19 -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 GAA16407 for ; Thu, 14 Sep 2000 06:07:17 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 14 Sep 2000 11:59:43 +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, 14 Sep 2000 11:39:29 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 14 Sep 2000 11:39:28 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Message-ID: <20000914113928.D7391@lemuria.org> References: <20000914024549.16687.qmail@web513.mail.yahoo.com> <39C056ED.6EA22D2E@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C056ED.6EA22D2E@mninter.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 Chris Moseng wrote: > I wouldn't be surprised if it could be argued that using the DMCA in a > way such as Kaplan says it can be used would automatically qualify as > misuse. that would be a nice solution to the whole problem. why bother with getting rid of the DMCA if we can arrange for the people who bought the law to be wanting to kill it? :)) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 06:07:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA16374 for dvd-discuss-outgoing; Thu, 14 Sep 2000 06:07:13 -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 GAA16370 for ; Thu, 14 Sep 2000 06:07:12 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 14 Sep 2000 11:59:43 +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, 14 Sep 2000 11:25:06 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 14 Sep 2000 11:25:06 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914112506.A7391@lemuria.org> References: <20000913180504.4704.qmail@web512.mail.yahoo.com> <20000913171157.D11829@eldritchpress.org> <20000914031923.A6305@lemuria.org> <39C03868.3E8A6F67@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C03868.3E8A6F67@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 know what you're saying. About the only > people these days who worry about changing > the object code are crackers and compiler > writers -- and only crackers are interested > in frobbing the running executable. (Well, > there are Lisp programmers out there...) eh - no. this is like people who repair their own cars. it's a small group, but they do exist. likewise, there are people who fix their own programs. often, they are in the free software movement, working on source, but I know people who fix or tweak object code. > distinctions, but there's no way there's a > fundamental difference which someone without > the background could even really understand. > Certainly, lawyers and judges who don't know > anything about what programming really is are > always writing really stupid and totally > meaningless stuff that nobody with even a > basic understanding of a crummy language like > Pascal could even think of saying. hm. I guess you're right. > In the long run, there's going to have to be > software court judges just like there's family > court judges, who know what's going on. In the > short run the only defense we have against really > stupid legal precident is the fact that software > is speech. (In the really long run, everyone's > going to speak in code anyway...) I doubt that. the movement is rather that computers speak english. which will reduce the number of people who know what's going on behind the interface. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 06:56:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA17710 for dvd-discuss-outgoing; Thu, 14 Sep 2000 06:56:22 -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 GAA17707 for ; Thu, 14 Sep 2000 06:56:21 -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 GAA26238 for ; Thu, 14 Sep 2000 06:57:26 -0400 (EDT) Message-ID: <39C0AF17.422BD3A5@mediaone.net> Date: Thu, 14 Sep 2000 06:57:27 -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] Bernstein opinion on "conduct" References: <20000914031130.1709.qmail@web510.mail.yahoo.com> <39C04BA3.8728477A@mediaone.net> <39C0584A.71AFDF43@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: > > I don't know why you would want to do this or take this position. > Please explain. > > Sphere wrote: > > > > Very good. Object code by itself is "very > > little speech". Any theories on how to get > > this codified as law??? > > > > As Kaplan said "The path from idea to human language to source code to > object code is a continuum." And he goes on to say that "Not everyone > can understand each of these forms." I think an argument could be > made that the speech element of object code can be observed when run > on a computer. Even by someone without any programming knowledge. > > As an example, I remember a program that brought up a dialog box with > a button in the center that read "Click here for your pay raise." > When you moved the pointer towards the button, the button moved so that > you could never activate the button. The speech - a funny joke. Easy > to see when run on a computer. Difficult to see reading the source > and very difficult to see it in the object code. The important thing > is that the object code still contained the speech. The computer was > just an aid in seeing the speech much like reading glasses are an aid > to reading text. I didn't mean to say that object code was unprotected speech. Just that object code without potential access to source code has lost something in the process. Open Source is, in some way which I don't think matters here, purer (or more honest) speech than handing out the executable without the source. If the legal case somehow involved a conflict between just the object and object plus source, then I think object plus source has some sort of preference -- possibly a major preference, such as being copyrightable. At the moment the legal system is trying to define running code as somehow non-speech. As your example demonstrates, this is silly. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 07:24:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA18340 for dvd-discuss-outgoing; Thu, 14 Sep 2000 07:24:45 -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 HAA18337 for ; Thu, 14 Sep 2000 07:24:44 -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 HAA19604 for ; Thu, 14 Sep 2000 07:25:50 -0400 (EDT) Message-ID: <39C0B5BE.ABF5D364@mediaone.net> Date: Thu, 14 Sep 2000 07:25:50 -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] Bernstein opinion on "conduct" References: <20000913180504.4704.qmail@web512.mail.yahoo.com> <20000913171157.D11829@eldritchpress.org> <20000914031923.A6305@lemuria.org> <39C03868.3E8A6F67@mediaone.net> <20000914112506.A7391@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: > > I know what you're saying. About the only > > people these days who worry about changing > > the object code are crackers and compiler > > writers -- and only crackers are interested > > in frobbing the running executable. (Well, > > there are Lisp programmers out there...) > > eh - no. this is like people who repair their own cars. it's a small group, > but they do exist. likewise, there are people who fix their own programs. > often, they are in the free software movement, working on source, but I > know people who fix or tweak object code. You are right. I'd forgotten them. ... > > In the long run, there's going to have to be > > software court judges just like there's family > > court judges, who know what's going on. In the > > short run the only defense we have against really > > stupid legal precident is the fact that software > > is speech. (In the really long run, everyone's > > going to speak in code anyway...) > > I doubt that. the movement is rather that computers speak english. which > will reduce the number of people who know what's going on behind the > interface. Assuming you are referring to the really long run, everyone's going to be code. Speaking code will be how they exist. Even I have some chance of fading away in the Net instead of dieing in the body. They're already putting chips in blind people. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 07:26:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA18431 for dvd-discuss-outgoing; Thu, 14 Sep 2000 07:26:26 -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 HAA18427 for ; Thu, 14 Sep 2000 07:26:26 -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 HAA25027 for ; Thu, 14 Sep 2000 07:27:32 -0400 (EDT) Message-ID: <39C0B624.326E50D@mediaone.net> Date: Thu, 14 Sep 2000 07:27:32 -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] Bernstein opinion on "conduct" References: <20000914031130.1709.qmail@web510.mail.yahoo.com> <39C04BA3.8728477A@mediaone.net> <39C0584A.71AFDF43@swbell.net> <20000914113006.C7391@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: > > Jolley wrote: > > object code is a continuum." And he goes on to say that "Not everyone > > can understand each of these forms." I think an argument could be > > made that the speech element of object code can be observed when run > > on a computer. Even by someone without any programming knowledge. > > no, you are observing the FUNCTION of the code. > > > As an example, I remember a program that brought up a dialog box with > > a button in the center that read "Click here for your pay raise." > > When you moved the pointer towards the button, the button moved so that > > you could never activate the button. The speech - a funny joke. > > it seems you americans have a very funny definition of the word "speech". > nobody in europe (ok, nobody I know) would consider a moving button speech. > > is any expression speech in the US? is a painting speech? Covered by our first amendment freedom of speech. Yes, it's speech. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 08:57:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA20193 for dvd-discuss-outgoing; Thu, 14 Sep 2000 08:57:26 -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 IAA20190 for ; Thu, 14 Sep 2000 08:57:24 -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 IAA13075 for ; Thu, 14 Sep 2000 08:58:31 -0400 (EDT) Message-ID: <39C0CB77.8241D9BC@mediaone.net> Date: Thu, 14 Sep 2000 08:58:31 -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] Regulating violence in the media Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Today's big topic on the hill is violent material being marketed to children. It would be easy for congress to regulate violence marketed by big media. Change the copyright law to allow copyright only to human beings and place short statutary limitations on the duration of copyright contracts. No big media therefore no big media marketing. (Boy is the MPAA being two-faced here. Government cannot censor, but they can?) -- Sphere. "Information wants to be free" is not a short course in economics. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 09:01:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20357 for dvd-discuss-outgoing; Thu, 14 Sep 2000 09:01:51 -0400 Received: from osf1.gmu.edu (osf1.gmu.edu [129.174.1.13]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA20354 for ; Thu, 14 Sep 2000 09:01:50 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id JAA31600 for ; Thu, 14 Sep 2000 09:02:57 -0400 (EDT) Date: Thu, 14 Sep 2000 09:02:57 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report In-Reply-To: <9jq0ssk9507fr7f3hhciqb35p3dlf6idlq@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 Thu, 14 Sep 2000, Ron Gustavson wrote: > On Wed, 13 Sep 2000 22:38:35 EDT, Jeremy Erwin wrote: > > >I really feel depressed. Anyway, here are two more ocred, and (partially) > >edited pages (11-12). Read them, and you'll understand.. > Thanks. The program I was using (gocr), while free, isn't exactly accurate. Thus, the long delay. I just wish we had access to this report sooner (before trial, perhaps). While the report doesn't come out and say "we intend to eviscerate fair use" it implies as much. By the report's tone, our initial forays into "reverse engineeering" were wrongheaded, as the report implies that the exemption can't be used for any thing akin to LiVid. However, it is beeen my impression that the entire report was a polemic against certain foes in Congress, and against certain members of the comittee who were attached to outmoded concepts such as "fair use." "The court finds that the original intent of Congress was to ignore the Constitution." Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 09:20:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA20833 for dvd-discuss-outgoing; Thu, 14 Sep 2000 09:20:01 -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 JAA20830 for ; Thu, 14 Sep 2000 09:20:00 -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 JAA19756 for ; Thu, 14 Sep 2000 09:21:07 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA16397; Thu, 14 Sep 2000 09:21:07 -0400 (EDT) Date: Thu, 14 Sep 2000 09:21:07 -0400 (EDT) Message-Id: <200009141321.JAA16397@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report In-Reply-To: <20000914073258.37998.qmail@web9403.mail.yahoo.com> References: <20000914073258.37998.qmail@web9403.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phill K. writes: > (1) be primarily designed or produced for the purpose > of circumventing; > (2) have only limited commercially significant purpose > or use other than to circumvent; or > (3) be marketed by the person who manufactures it, > imports it, offers it to the public, provides it, or > otherwise traffics [for the purpose of circumventing] Nothing new there; it's essentially quoting the law (1201(a)(2) and (b)(1)), with "is" and "have" replaced with "be" and "has", and the references to the definitions of "circumvent" (and "effective") trimmed. > So say I reversed engineered a DVD player that would > be commercially significant, but because of condition > (1) I could not produce it. Only if whatever your DVD player does constitutes circumvention according to the relevant definitions. For this case, those are the ones in (a)(3), which the report makes plain, were intended to define circumvention as providing access to a *person* who was not authorized. For instance, the first sentence of the report's 1201 discussion reads: Subsection (a) of new Section 1201 applies when a person who is not authorized to have access to a work seeks to gain access by circumventing a technological measure put in place by the copyright owner that effectively controls access to the work. Since DeCSS never grants access where a licensed implementation of CSS would not (they are functionally equivalent), 1201(a) was never meant to apply to DeCSS. The actual language of (a)(3) is ambiguous enough to let the MPAA claim that it means access by means of an unauthorized *device*, providing an indefinite patent, but that's wholly inconsistent with documented legislative intent, here and elsewhere, and also clearly unconstitutional --- indefinite patents are plainly in violation of the Constitution's requirement that copyrights and patents be granted "for limited times" only. See the legistlative history section of the "authority" paper, http://www.ai.mit.edu/people/rst/dmca/auth/auth.html or this message http://eon.law.harvard.edu/archive/dvd-discuss/msg07722.html for more detailed arguments about why I think that CSS does not fit the law's definition of "effective access control"; the latter actually makes reference to this judiciary report. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 09:27:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21065 for dvd-discuss-outgoing; Thu, 14 Sep 2000 09:27:03 -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 JAA21062 for ; Thu, 14 Sep 2000 09:27:03 -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 JAA30564; Thu, 14 Sep 2000 09:29:29 -0400 Message-Id: <200009141329.JAA30564@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-reply-to: Your message of "Wed, 13 Sep 2000 22:31:04 EDT." <39C03868.3E8A6F67@mediaone.net> Date: Thu, 14 Sep 2000 09:28:59 -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: : : : Tom Vogt wrote: [snip] : > sorry, but I - and lots of other free software advocates - will not support : > you there. object code *is* fundamentally different from source in that it : > doesn't allow modification or even understanding of the software involved. : > nonwithstanding the fact that most programmers - given time - can "read" : > object code (by disassembling), it is as far away from source as the DMCA : > is from shakespeare. : > : : When I started you toggled in the bootstrap... : : I know what you're saying. About the only : people these days who worry about changing : the object code are crackers and compiler : writers -- and only crackers are interested : in frobbing the running executable. (Well, : there are Lisp programmers out there...) : : But I have read and modified code at the : front panel switches. There might be enough : difference between source and object for : someone who actually understands the technology : and language issues to make reasonable legal : distinctions, but there's no way there's a : fundamental difference which someone without : the background could even really understand. : Certainly, lawyers and judges who don't know : anything about what programming really is are : always writing really stupid and totally : meaningless stuff that nobody with even a : basic understanding of a crummy language like : Pascal could even think of saying. : : In the long run, there's going to have to be : software court judges just like there's family : court judges, who know what's going on. In the : short run the only defense we have against really : stupid legal precident is the fact that software : is speech. (In the really long run, everyone's : going to speak in code anyway...) It would be nice if judges and lawyers did have some understanding what is actually involved with programming, but I submit that the idea of a software court is a really bad idea. Who do you think will be appointed to it? Lawyers who understand programs the way that you do? Or lawyers that understand programs the way Bill Gates' and the MPAA's lawyers understand programs? Specialized courts, like administrative agencies, usually get captured by the people whom they regulate. Look at the Federal Circuit which is specialized court in patent issues. Without that specialized court it is unlikely that software patents would have been issued to the ridiculous extent that they have been, or issued at all, since the Supreme Court had held back in the seventies that programs implementing algorithms are not patentable. There are legal academics who claim that they know a lot about computers who claim that programs are not and should not be protected by the first amendment. I would suspect that they would be the ones whou would be appointed to your specialized court. After all, the politicians who appoint the judges for the most part like neither the first amendment nor the unregulated spread of computer programs. And remember that Judge Kaplan is one of the more computer savy judges in the Southern District of New York. And remember that Garbus is not computer savy. -- 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 Sep 14 09:29:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA21187 for dvd-discuss-outgoing; Thu, 14 Sep 2000 09:29:12 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA21184 for ; Thu, 14 Sep 2000 09:29:11 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id JAA20510 for ; Thu, 14 Sep 2000 09:30:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA19710; Thu, 14 Sep 2000 09:30:18 -0400 (EDT) Date: Thu, 14 Sep 2000 09:30:18 -0400 (EDT) Message-Id: <200009141330.JAA19710@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report In-Reply-To: References: <9jq0ssk9507fr7f3hhciqb35p3dlf6idlq@4ax.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy A. Erwin writes: > However, it is beeen my impression that the entire report was a polemic > against certain foes in Congress, and against certain members of the > comittee who were attached to outmoded concepts such as "fair use." s/certain foes in Congress/the Commerce committee/ --- though it also winds up going implicitly against the Senate in the long rants about "playability". (The law includes an amendment which was introduced in the Senate to provide a "playability" exemption, as the Conference Committee report makes plain, despite all Judiciary's rants to the contrary). That said, it's actually in the speeches and writings of the fair use *proponents* that the schizo logic of the law regarding fair use (pace Zulauf, "you can swim, just don't go near the water") is plainest --- see Bliley and Coble from the first House floor debate, for example. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 10:41:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA23289 for dvd-discuss-outgoing; Thu, 14 Sep 2000 10:41:02 -0400 Received: from hotmail.com (f319.law9.hotmail.com [64.4.8.194]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA23286 for ; Thu, 14 Sep 2000 10:41:01 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 14 Sep 2000 07:41:37 -0700 Received: from 216.181.38.167 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 14 Sep 2000 14:41:37 GMT X-Originating-IP: [216.181.38.167] From: "Richard Bowers" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Date: Thu, 14 Sep 2000 10:41:37 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Sep 2000 14:41:37.0417 (UTC) FILETIME=[E2E84790:01C01E59] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Tom Vogt wrote: > > > > Jolley wrote: > > > object code is a continuum." And he goes on to say that "Not everyone > > > can understand each of these forms." I think an argument could be > > > made that the speech element of object code can be observed when run > > > on a computer. Even by someone without any programming knowledge. > > > > no, you are observing the FUNCTION of the code. > > > > > As an example, I remember a program that brought up a dialog box with > > > a button in the center that read "Click here for your pay raise." > > > When you moved the pointer towards the button, the button moved so >that > > > you could never activate the button. The speech - a funny joke. > > > > it seems you americans have a very funny definition of the word >"speech". > > nobody in europe (ok, nobody I know) would consider a moving button >speech. > > > > is any expression speech in the US? is a painting speech? > > >Covered by our first amendment freedom of >speech. Yes, it's speech. > > >-- >Sphere. More correctly, our first amendment guarantees freedom of expression in all forms, but expression has too many syllables, so we call it speech. :) _________________________________________________________________________ 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 Thu Sep 14 12:28:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25816 for dvd-discuss-outgoing; Thu, 14 Sep 2000 12:28:41 -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 MAA25792 for ; Thu, 14 Sep 2000 12:28:02 -0400 Message-ID: <20000914162831.8031.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 14 Sep 2000 09:28:31 PDT Date: Thu, 14 Sep 2000 09:28:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > As Kaplan said "The path from idea to human language to source code > to object code is a continuum." And he goes on to say that "Not > everyone can understand each of these forms." I think an > argument could be made that the speech element of object code > can be observed when run on a computer. Even by someone without > any programming knowledge. > As an example, I remember a program that brought up a dialog box with > a button in the center that read "Click here for your pay raise." > When you moved the pointer towards the button, the button moved so > that you could never activate the button. The speech - a funny joke. > Easy to see when run on a computer. Difficult to see reading > the source and very difficult to see it in the object code. The > important thing is that the object code still contained the > speech. The computer was just an aid in seeing the speech much > like reading glasses are an aid to reading text. A computer is a multimedia device. Just as the grooves on a record do more than move the needle when playing a song, so too can object code can be used to express communication. This is actually the basis for reasoning on copyright protection for nonliteral elements of a program (see the 2nd Circuit's decision in Altai). There they gave a constructive recipe for finding the original expressive elements of a running program. However, you want to be careful not to imply that you should judge a programs speech content solely by what speech it provides when it runs. There is a whole separate part of speech that defines HOW it runs that isn't necessarily shown to the user. A judge could say "gut the algorithm, but present the same GUI, content and 'look and feel'" to the user and you'll have your speech. __________________________________________________ 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 Sep 14 12:35:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26144 for dvd-discuss-outgoing; Thu, 14 Sep 2000 12:35:51 -0400 Received: from relay21.smtp.psi.net (relay21.smtp.psi.net [38.8.22.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA26141 for ; Thu, 14 Sep 2000 12:35:50 -0400 Received: from ip59.bedford8.ma.pub-ip.psi.net ([38.32.78.59]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Zc0O-0002qu-00 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 12:36:57 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report Date: Thu, 14 Sep 2000 12:39:57 -0400 Message-ID: References: <20000914073258.37998.qmail@web9403.mail.yahoo.com> In-Reply-To: <20000914073258.37998.qmail@web9403.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 MAA26142 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 14 Sep 2000 00:32:58 -0700 (PDT), Phill K wrote: >By the reqasoning the MPAA uses, If I hold a sketch in >my hand of the diagram of a gun, then I actually have >a gun. These reports create the fiction that representatives are actually participating in legislation. I'm sure the version that was submitted by Time Warner was much clearer. It's all part of the show. As long as the stagehands don't screw up the story line, the producers are happy. >So, shouldn't they be going after our computers (or >more specifically after the individual computer user) >rather than the source code? That comes later. Already Janet Reno impulsively jerks her knee toward "computers and weapons of mass destruction." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 12:40:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26337 for dvd-discuss-outgoing; Thu, 14 Sep 2000 12:40:33 -0400 Received: from hotmail.com (f325.law9.hotmail.com [64.4.8.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA26333 for ; Thu, 14 Sep 2000 12:40:32 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 14 Sep 2000 09:41:08 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 14 Sep 2000 16:41:08 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Date: Thu, 14 Sep 2000 12:41:08 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Sep 2000 16:41:08.0873 (UTC) FILETIME=[956D9F90:01C01E6A] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: >sorry, but I - and lots of other free software advocates - will >not support you there. object code *is* fundamentally different >from source in that it doesn't allow modification or even >understanding of the software involved. >nonwithstanding the fact that most programmers - given time - >can "read" object code (by disassembling), it is as far away >from source as the DMCA is from shakespeare. I have to disagree. Object code certainly allows for modification, and definitely understanding. Many is the time that I've "patched" commercial object code to fix annoying bugs. Understanding from object code is what reverse engineering is all about. Finally, it is not even necessary to perform disassembly to understand it! There was a time when I was a teenager that I could pretty much read and understand 6502 object code directly in hex, since I had no computer tools for assembly/disassembly at the time. _________________________________________________________________________ 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 Thu Sep 14 12:47:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26611 for dvd-discuss-outgoing; Thu, 14 Sep 2000 12:47:11 -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 MAA26608 for ; Thu, 14 Sep 2000 12:47:10 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 14 Sep 2000 09:47:47 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 14 Sep 2000 16:47:45 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Date: Thu, 14 Sep 2000 12:47:45 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Sep 2000 16:47:47.0030 (UTC) FILETIME=[82BF8F60:01C01E6B] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >Well, you can copyright unpublished works and exclude others >completely; you just can't SELL it and do so. I think you should say >"WHY should the author be allowed to profit from his copyright >protection". While mostly true, I believe that this notion of copyright on unpublished works is unconstitutional - it fails to promote the progress of the useful arts. More to the point, in order to exercise the rights - i.e. bring suite against a violator, you must first file the work with the copyright office; is this not pretty close to publishing? Can I not examine all that is filed with the copyright office at the library of congress? _________________________________________________________________________ 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 Thu Sep 14 13:02:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27018 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:02:55 -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 MAA26934 for ; Thu, 14 Sep 2000 12:59:31 -0400 Message-ID: <20000914165922.27160.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 14 Sep 2000 09:59:22 PDT Date: Thu, 14 Sep 2000 09:59:22 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > is any expression speech in the US? is a painting speech? The Courts have ruled that the "freedom of speech" refered to in the Constitution really includes freedom of expression through any means of communication. As technology produces new mediums that allow one to 'speak' (in the sense of communicate), the Constitution will protect this expression, which is in an abstract sense speech. And yes, paintings are protected by the first amendment. There is caselaw citing that the modern art paintings of Jackson Pollack are protected under the First Amendment. __________________________________________________ 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 Sep 14 13:06:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27199 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:06:32 -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 NAA27179 for ; Thu, 14 Sep 2000 13:06:22 -0400 Message-ID: <20000914170649.23659.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 14 Sep 2000 10:06:49 PDT Date: Thu, 14 Sep 2000 10:06:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] more of the judiciary commitee report To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy A Erwin wrote: > By the report's tone, our initial forays into "reverse engineeering" > were wrongheaded, as the report implies that the exemption can't > be used for any thing akin to LiVid. I didn't see that at all. By the way, the RE parts of this were mostly the same as other documents that we've discussed at length. It basically says that the RE exception is for interoperating of software (LiViD) to exchange information (the movie), but that in so doing you must not commit copyright infringment (have a fair use arguement). In a nutshell, I think this says that you can replace the software of others with your own, as long as you don't steal the non-software works as you do it. Said differently: if you are involved in an RE project, the standard reverts to copyright infringement. __________________________________________________ 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 Sep 14 13:09:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27378 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:09:26 -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 NAA27359 for ; Thu, 14 Sep 2000 13:09:24 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id NAA08905 for ; Thu, 14 Sep 2000 13:09:58 -0400 Date: Thu, 14 Sep 2000 13:09:57 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The reasoning behind copyright on unpublished works is _probably_ to ensure that an unfinished (and not yet published work, like an MS or work print of a film) can't be copied and distributed freely prior to the actual publication. Of course, software is so commonly distributed half-baked these days one wonders if it ever counts as being published by that standard. On Thu, 14 Sep 2000, Harold Eaton wrote: > Bryan Taylor wrote: > > >Well, you can copyright unpublished works and exclude others > >completely; you just can't SELL it and do so. I think you should say > >"WHY should the author be allowed to profit from his copyright > >protection". > > While mostly true, I believe that this notion of copyright on > unpublished works is unconstitutional - it fails to promote > the progress of the useful arts. More to the point, in order to > exercise the rights - i.e. bring suite against a violator, you > must first file the work with the copyright office; is this not > pretty close to publishing? Can I not examine all that is filed > with the copyright office at the library of congress? > _________________________________________________________________________ > 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 Thu Sep 14 13:40:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28437 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:40:04 -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 NAA28434 for ; Thu, 14 Sep 2000 13:40:00 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 14 Sep 2000 13:40:11 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Regulating violence in the media Date: Thu, 14 Sep 2000 13:40:06 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="ISO-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A fur lined rabbit hole! The suggestion that the government should regulate the entertainment industry is chilling, though, even if there is a constitutional way to do it, which is doubtful. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 13:44:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28704 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:44:13 -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 NAA28701 for ; Thu, 14 Sep 2000 13:44:11 -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 KAA25605 for ; Thu, 14 Sep 2000 10:44:51 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id KAA23387; Thu, 14 Sep 2000 10:44:13 -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] Bernstein opinion on "conduct" Date: 14 Sep 2000 10:43:54 -0700 Organization: A poorly-installed InterNetNews site Lines: 8 Distribution: isaac Message-ID: <8pr2oq$mqq$1@blowfish.isaac.cs.berkeley.edu> References: <20000914001106.3529.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: > The source code was passed back and forth between many people > (Johansen, Fawcus, Stevenson, Touretzky, Pavlovich, etc...) who read > it, learned from it, discussed it, and adapted it to their purposes. And sharing code is everyday practice in the research community, as Touretzky testified. It is one of the routine modes of communication, and one for which there is no equivalent alternative available. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 13:46:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28930 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:46:30 -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 NAA28925 for ; Thu, 14 Sep 2000 13:46:26 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id KAA18175 for ; Thu, 14 Sep 2000 10:47:25 -0700 Date: Thu, 14 Sep 2000 10:47:25 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: <39C0AF17.422BD3A5@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 > Jolley wrote: > > As Kaplan said "The path from idea to human language to source code to > > object code is a continuum." And he goes on to say that "Not everyone > > can understand each of these forms." Not everyone can understand Inuit, but it's protected. In fact, I'd say probably the same number of people understand x86 object code as Inuit. > > I think an argument could be made that the speech element of object > > code can be observed when run on a computer. Even by someone without > > any programming knowledge. You're confusing the signifier and the signified. The object code means one thing. The output of the DEVICE YOUR COMPUTER BECOMES when the code is executed is also expression, but for different purposes, those expressions are distinct. For example, to express ideas about algorithm design, you probably want to use some high level code; to express ideas relating to compiler design or processor design, you might want to use object code examples; and to express ideas about anything at all, you can use the output of a computer program. I think programming is both a fine and useful art. It is potentially expressive and personal and political, yet it is practical, functional, and mechanical. It all depends on how it's practiced. I guess you could say the same for painting. The mere act can be so many things. On Thu, 14 Sep 2000, Sphere wrote: > I didn't mean to say that object code was unprotected speech. Just > that object code without potential access to source code has lost > something in the process. Open Source is, in some way which I don't > think matters here, purer (or more honest) speech than handing out the > executable without the source. I disagree. Making source code available makes it EASIER for your users to make changes to your work, but releasing object code only doesn't prevent anyone from modifying your work (see the examples of a few posters here who have patched various compiled binaries in their day). I think anything on this part of my post should be handled privately among interested parties, but I'll continue with a bit of a religious rant. What you're touching here is the difference between Open Source and Free Software. Open Source carries the idea that you maybe SHOULD distribute your source code, but you can still prevent people from sharing that code if you like. So if you go and modify your copy, you can't then redistribute that copy without the original creator's permission (and that permission holds through many future generations and stops whenever the original creator, however far removed, wants it to stop). This is exactly like closed source software, only local modification is just a little bit easier because you have the source code and more people understand it and you can pump it through your own compiler with your own optimizations. Open Source doesn't solve any of the problems of expression or protection; it's just a little safety net that makes software buyers feel less vendor dependant (even though they still are) and software publishers feel less like they're artificially creating scarcity (even though they still are). Open Source as a whole is very happy with copyright as it stands. Free Software carries the idea that you MUST distribute your source code (which may be identical to your object code, if that's how you wrote the program) and everyone who receives that code is free to modify and redistribute either the original or their modified work. Free Software is a "copyleft". It uses copyright against itself to guarantee that the hegemony potentially created by copyright never materializes. Giving out your source code witha product is a good will gesture, but not inherently different than just distributing the object code. But giving out either source or object code with the express permission to redistribute that code and any modifications you make to it (with only the provisions that it be distributed under the same rules and all changes can legally be redistributed under those same rules) is revolutionary, counter to the outdated ideas of copyright, and ultimately just and equalizing. > If the legal case somehow involved a conflict between just the object > and object plus source, then I think object plus source has some sort > of preference -- possibly a major preference, such as being > copyrightable. Huh? Object code is clearly as copyrightable as source code. The only preference object code + source would get would be the court's grudging acceptance of Junger. I fear that decision will become the Roe v. Wade of the software world: Our entire definition of rights will hang on one piece of judicial interpretation that can be struck down by ANY future law on the subject, overturned at a moment's notice, or re-interpreted in a little rider from Congress. > At the moment the legal system is trying to define running code as > somehow non-speech. As your example demonstrates, this is silly. It's a tiny bit NICE for the software world to have source code protected as free speech and object code not because it means even if the government started banning programs, they couldn't ban the source... and then people would become more comfortable with the idea of compiling their own objects from source and perhaps reading and modifying that source beforehand. But what we lose is so much more than this. It's vital that the courts understand what a Turing machine IS... they need to know what it means to have a machine that is any machine you tell it to be by its initial instructions. It has NO primary purpose but to be any device on demand. Just some notes from me. Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 13:54:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29234 for dvd-discuss-outgoing; Thu, 14 Sep 2000 13:54:40 -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 NAA29231 for ; Thu, 14 Sep 2000 13:54:39 -0400 Received: from ip59.bedford8.ma.pub-ip.psi.net ([38.32.78.59]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13ZdEg-0003Vo-00 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 13:55:46 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Regulating violence in the media Date: Thu, 14 Sep 2000 13:58:44 -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 NAA29232 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 14 Sep 2000 13:40:06 -0400, Leland Ray wrote: >A fur lined rabbit hole! > >The suggestion that the government should regulate the >entertainment industry is chilling, though, even if there >is a constitutional way to do it, which is doubtful. One of the points in Valenti's testimony was ratings. Senators complained that the "R" and "NC-17" in the ads don't describe which topics they are assigned for. Valenti also mentioned hard R and soft R--whatever that means. He then boasted about the V-chip and its RSAC ratings. The senators might have asked why then don't you print these in the paper instead of a simplistic R? Aha--because R is really a marketing tool. (device if you will) I know this is getting off-topic... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 14:23:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29882 for dvd-discuss-outgoing; Thu, 14 Sep 2000 14:23:15 -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 OAA29879 for ; Thu, 14 Sep 2000 14:23:13 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id OAA00309; Thu, 14 Sep 2000 14:24:20 -0400 Date: Thu, 14 Sep 2000 14:24:20 -0400 From: Jim Bauer Message-Id: <200009141824.OAA00309@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Rights 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 Harold Eaton wrote: > >While mostly true, I believe that this notion of copyright on >unpublished works is unconstitutional - it fails to promote >the progress of the useful arts. More to the point, in order to >exercise the rights - i.e. bring suite against a violator, you >must first file the work with the copyright office; is this not >pretty close to publishing? Can I not examine all that is filed >with the copyright office at the library of congress? Do the Rights granted in the U.S. Constitution to the "people" also apply to legal entities such as businesses? It certainly looks that way, but that seems horribly wrong IMO. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 14:39:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30304 for dvd-discuss-outgoing; Thu, 14 Sep 2000 14:39:25 -0400 Received: from web9405.mail.yahoo.com (web9405.mail.yahoo.com [216.136.129.111]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA30301 for ; Thu, 14 Sep 2000 14:39:23 -0400 Message-ID: <20000914183957.18548.qmail@web9405.mail.yahoo.com> Received: from [209.90.98.79] by web9405.mail.yahoo.com; Thu, 14 Sep 2000 11:39:57 PDT Date: Thu, 14 Sep 2000 11:39:57 -0700 (PDT) From: Phill K Subject: Re: [dvd-discuss] more of the judiciary commitee report To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes, you are right on all counts. Forgive me for not stating that I cut and pasted the clauses below from the report. I was trying to adduce an arguement rather than declaring one. It's the MPAA's missuse of 'semantics' that their legal arguement hinges on. It is unconventional to call DeCSS code a "circumvention device" rather than the universally accepted "published code". It's mind-bending to see how Kaplan could say otherwise. This is my first posting here. I'll be more careful. --- "Robert S. Thau" wrote: > Phill K. writes: > > > (1) be primarily designed or produced for the > purpose > > of circumventing; > > (2) have only limited commercially significant > purpose > > or use other than to circumvent; or > > (3) be marketed by the person who manufactures > it, > > imports it, offers it to the public, provides it, > or > > otherwise traffics [for the purpose of > circumventing] > > Nothing new there; it's essentially quoting the law > (1201(a)(2) and > (b)(1)), with "is" and "have" replaced with "be" and > "has", and the > references to the definitions of "circumvent" (and > "effective") > trimmed. > > > So say I reversed engineered a DVD player that > would > > be commercially significant, but because of > condition > > (1) I could not produce it. > > Only if whatever your DVD player does constitutes > circumvention > according to the relevant definitions. For this > case, those are the > ones in (a)(3), which the report makes plain, were > intended to define > circumvention as providing access to a *person* who > was not > authorized. For instance, the first sentence of the > report's 1201 > discussion reads: > > Subsection (a) of new Section 1201 applies when a > person who is not authorized to have access to a > work > seeks to gain access by circumventing a > technological > measure put in place by the copyright owner that > effectively controls access to the work. > > Since DeCSS never grants access where a licensed > implementation of CSS > would not (they are functionally equivalent), > 1201(a) was never meant > to apply to DeCSS. > > The actual language of (a)(3) is ambiguous enough to > let the MPAA > claim that it means access by means of an > unauthorized *device*, > providing an indefinite patent, but that's wholly > inconsistent with > documented legislative intent, here and elsewhere, > and also clearly > unconstitutional --- indefinite patents are plainly > in violation of > the Constitution's requirement that copyrights and > patents be granted > "for limited times" only. See the legistlative > history section of the > "authority" paper, > > > http://www.ai.mit.edu/people/rst/dmca/auth/auth.html > > or this message > > > http://eon.law.harvard.edu/archive/dvd-discuss/msg07722.html > > for more detailed arguments about why I think that > CSS does not fit > the law's definition of "effective access control"; > the latter > actually makes reference to this judiciary report. > > rst __________________________________________________ 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 Sep 14 14:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30329 for dvd-discuss-outgoing; Thu, 14 Sep 2000 14:39:56 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30326 for ; Thu, 14 Sep 2000 14:39:54 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id LAA18337 for ; Thu, 14 Sep 2000 11:40:58 -0700 Date: Thu, 14 Sep 2000 11:40:57 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Rights In-Reply-To: <200009141824.OAA00309@emperor.hwrd1.md.home.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 14 Sep 2000, Jim Bauer wrote: > Do the Rights granted in the U.S. Constitution to the "people" > also apply to legal entities such as businesses? It certainly > looks that way, but that seems horribly wrong IMO. I'm wondering if this is a naive kind of precoscious question where you know the answer but want to be appalled when you hear it and get it discussed... but yes... corporations have the protections of individuals and few of the responsibilities (they can't be found guilty of crime or sentenced to jail or death, they can only be fined, which means that if you have enough money, you can break any law you want... as a corporation). This should be changed. But as Ralph Nader likes to say, "George W. Bush is a corporation disguised as a person, and he's running for President!" We could go on and on about why corporations are not people. It should be very clear that for-profit entities do not require or deserve the protected status of individual human beings. There is simply no justification for a for-profit organization to have "rights". J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 14:56:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30974 for dvd-discuss-outgoing; Thu, 14 Sep 2000 14:56:31 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA30956 for ; Thu, 14 Sep 2000 14:56:19 -0400 Message-ID: <20000914185650.18810.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Thu, 14 Sep 2000 11:56:50 PDT Date: Thu, 14 Sep 2000 11:56:50 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeme A Brelin wrote: > I disagree. Making source code available makes it EASIER for > your users to make changes to your work, but releasing object code > only doesn't prevent anyone from modifying your work (see the > examples of a few posters here who have patched various > compiled binaries in their day). It might not prevent *everyone* from modifying it, but when you say it doesn't prevent 'anyone', I frumple my brow. It easily prevents 99% of people from doing this, as a practical matter. Courts have ruled that trade secrets status is not lost simply because one has published object code, for precisely this very reason. If you publish the object code and NOT the source then you are trying to assure that it is more difficult for people to decipher. The licence on the source code doesn't matter for communication purposes, only for copyright purposes (redistribution of derivitive works). Access to the source code is all that is needed to read it and learn from it. If it's released under the most restrictive licence allowed by law, then I have no doubt that a trade secret status would be lost, because by doing so, the writer is trying to communicate the programming ideas. > Giving out your source code witha product is a good will gesture, but > not inherently different than just distributing the object code. But > giving out either source or object code with the express > permission to redistribute that code and any modifications you make > to it (with only the provisions that it be distributed under > the same rules and all changes can legally be redistributed > under those same rules) is revolutionary, counter > to the outdated ideas of copyright, and ultimately just and > equalizing. I disagree, the distinction is that source code is NEVER functional (as Fletcher pointed out in Bernstein) and contains ideas that are clearly lost in the transformation to object code. __________________________________________________ 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 Sep 14 15:22:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA32603 for dvd-discuss-outgoing; Thu, 14 Sep 2000 15:22:31 -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 PAA32600 for ; Thu, 14 Sep 2000 15:22:30 -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 PAA09252 for ; Thu, 14 Sep 2000 15:23:38 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA27377; Thu, 14 Sep 2000 15:23:38 -0400 (EDT) Date: Thu, 14 Sep 2000 15:23:38 -0400 (EDT) Message-Id: <200009141923.PAA27377@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: References: <39C0AF17.422BD3A5@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeme A. Brelin writes: > Free Software carries the idea that you MUST distribute your source code > (which may be identical to your object code, if that's how you wrote the > program) and everyone who receives that code is free to modify and > redistribute either the original or their modified work. Hmmm... I'm not sure that really reflects free software philosophy; perhaps it's misphrased. Stallman doesn't seem to think that, in general that "you MUST distribute" anything. For instance, http://www.gnu.org/philosophy/free-sw.html enumerates among the freedoms provided by free software that: You should also have the freedom to make modifications and use them privately in your own work or play, without even mentioning that they exist. If you do publish your changes, you should not be required to notify anyone in particular, or in any particular way. That of course applies as well to original works. What free software is about is *how* you distribute the code if you do; he thinks you should distribute the source if you distribute anything, on moral grounds. There are licenses that require notification if a derivative work is created or distributed, such as the Apple APSL, but Stallman describes the APSL as a non-free license in http://www.gnu.org/philosophy/apsl.html for that very reason. FWIW, my impression of the open source/free software dichotomy is that Stallman argues for the freedoms of free software as a matter of moral right, while open source advocates such as Eric Raymond argue for open source licenses as a matter of what pragmatically makes for a better product. Stallman never says that you MUST distribute your code; he argues that you SHOULD distribute source if you do on moral grounds, while Raymond also thinks you should, most of the time, on economic grounds, because most of the time you'll be better off in the long run. It's a difference in basic philosophy, but doesn't really have all that much practical impact. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:23:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02404 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:23:23 -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 QAA02400 for ; Thu, 14 Sep 2000 16:23:18 -0400 Message-ID: <20000914202351.2418.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 14 Sep 2000 13:23:51 PDT Date: Thu, 14 Sep 2000 13:23:51 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] CITY OF LADUE v. GILLEO To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 unanimous Supreme Court case. Here the Court discussed the framework for a law impacting speech that has exceptions. The exceptions can make the law unconstitutional if they "restricts too little speech because its exemptions discriminate on the basis of ... messages". However, under the ... content discrimination rationale, the [government] might theoretically remove the defects in its ordinance by simply repealing all of the exemptions. If, however, the ordinance is also vulnerable because it prohibits too much speech, that solution would not save it. CITY OF LADUE v. GILLEO No. 92-1856 (Sup. Ct. 1994) http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/us/000/u10373.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 Sep 14 16:24:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02462 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:24:47 -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 QAA02459 for ; Thu, 14 Sep 2000 16:24:45 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id NAA18559 for ; Thu, 14 Sep 2000 13:25:49 -0700 Date: Thu, 14 Sep 2000 13:25:49 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: <200009141923.PAA27377@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 I know this reply should be off-list. That doesn't stop me from doing the wrong thing. > Jeme A. Brelin writes: > > Free Software carries the idea that you MUST distribute your source code > > (which may be identical to your object code, if that's how you wrote the > > program) and everyone who receives that code is free to modify and > > redistribute either the original or their modified work. On Thu, 14 Sep 2000, Robert S. Thau wrote: > Hmmm... I'm not sure that really reflects free software philosophy; > perhaps it's misphrased. Stallman doesn't seem to think that, in > general that "you MUST distribute" anything. For instance, I didn't say that you MUST distribute anything. I said that IF you distribute, then you MUST distribute source. I think the source of the misunderstanding is my fault. In my first sentence, I meant to say what the idea of Free Software carries... I was implying that the software is being distributed as Free Software. Certainly work that isn't distributed can be treated however anyone likes. Much like our discussions on copyright, licenses and ideals only come into play when you make your work public. > FWIW, my impression of the open source/free software dichotomy is that > Stallman argues for the freedoms of free software as a matter of moral > right, while open source advocates such as Eric Raymond argue for open > source licenses as a matter of what pragmatically makes for a better > product. My cynical view of the dichotomy is that ESR is smart enough to see that Free Software doesn't have the same monopolistic profit potential as any old Open Source software, so he advocates a method that has the chance of making him and his friends (and heaps of other people) filthy rich in the process... under the guise of better software. Whereas RMS realizes that you shouldn't have to justify every political and social movement with profits. > Stallman never says that you MUST distribute your code; he argues that > you SHOULD distribute source if you do on moral grounds, while Raymond > also thinks you should, most of the time, on economic grounds, because > most of the time you'll be better off in the long run. It's a > difference in basic philosophy, but doesn't really have all that much > practical impact. As I understand the GPL, and please correct me if I'm wrong, you are in violation of the license if you redistribute object code from GPL source if you do not also include the source or a method of public retrieval for that source. There is a compulsion to redistribute source if you distribute anything at all. And that's really what I was trying to say. Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:39:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02854 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:39:32 -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 QAA02835 for ; Thu, 14 Sep 2000 16:39:19 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA13870 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 16:42:01 -0400 Date: Thu, 14 Sep 2000 16:41:56 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims Message-ID: <20000914164156.B13837@eldritchpress.org> References: <20000913164626.12687.qmail@web513.mail.yahoo.com> <200009131715.NAA04502@soggy-fibers.ai.mit.edu> <20000913170924.C11829@eldritchpress.org> <200009132132.RAA09294@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200009132132.RAA09294@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Sep 13, 2000 at 05:32:41PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sorry, i will be unable to keep up with this list for a while, but i did want to try to respond to this. On Wed, Sep 13, 2000 at 05:32:41PM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > I would suggest that defense move for a directed remand on the > > issue that Kaplan failed to hear evidence on 1201(b), and > > in his decision confuses the two separate clauses, and indeed > > the technologies of access control and copy control. > > Did he really? He didn't make a finding regarding 1201(b) at all; 1201(b) is certainly part of plaintiffs' charges; his order covers "rights management" indeed; certainly his findings do not deny plaintiffs right to enforcement under 1201(b). i would have to conclude that he did make a finding regarding 1201(b) although it was so confused with the access control facts of the case that defense has a good case for remand. >his > opinion is all 1201(a), and based *entirely* on the law's criteria > regarding access control. His argument makes no reference to the copy > control provisions in the law at all[*], so it hardly confuses them > with access control provisions. well, Kaplan continually refers to encryption, scrambling, and keys as if CSS is both access control and copy control. he does not distinguish them, true, but that is no grounds for concluding that his statements apply only to access control. defense can argue that he did not hear sufficient facts to determine copy control circumvention under 1201(b) even if his findings on 1201(a) were affirmed. >If he had made a finding without > hearing relevant evidence, that would be different, but as is, I'm not > sure I see the case for a directed remand. i don't think it's up to us, the amici. it is up to defense attorneys if they wish to make this case. i bring it up only to separate this procedural issue from the case i do think amici need to raise, that the 1201(b) charge relies on CSS being copy control, and that we argue CSS is not copy control under 1201(b) but that if DMCA is to be enforced then 1201(b) prohibitions against copy control circumvention trafficking necessarily imply that DMCA is unconstitutional. > And if we got the case remanded to Kaplan on those grounds, all we > could expect is *another* adverse legal finding to fight, on 1201(b), > on top of the adverse finding we already have regarding 1201(a). I'm > not sure why the defense should want that. a remand is better than nothing for defense, but it's really up to defense attorneys to consider this. they might have other strategic reasons to ignore it. or the remand request would enable raising of the 1201(b) issue in a forceful enough way that the appeals court would simply reverse. > To put it another way, he heard no evidence and made no findings wrt > 1202 either; would you seek a directed remand about that? plaintiffs did not charge anything under 1202, did they?[ > BTW, the definition of "effectively protect a right ..." in 1201(b) > does refer explicitly to the enumerated rights of a copyright holder > in Title 17, so copyright holders don't get to invent their own new, > exclusive rights. The "rights" of copyright holders under Berne Convention (and thus WIPO) are considerably different from the "exclusive rights" specified in the U.S. Constitution. MPAA is trying to claim Berne Convention rights for U.S. works, and that would be unconstitutional if enforced. Access control is a rather new right and a bit harder for courts to consider how it is to be applied; copy control is very easy to put next to the cases such as Universal v Sony and Vault v Quaid and to determine if DMCA really does override them and the Constitution. >You may still be right about unconstitutional > overbreadth, because it doesn't say what *else* a copy control may do, > but as I said, I'm not sure why *this case* is the right forum to > raise those issues. Getting 1201(b) tossed on constitutional grounds > wouldn't do a thing to help us with the 1201(a) finding which > underlies Kaplan's ruling in the case... getting DMCA tossed on ANY constitutional grounds means that 1201(a) cannot be enforced as Kaplan intends. the courts cannot sever one section of the act. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:47:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03163 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:47:42 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA03160 for ; Thu, 14 Sep 2000 16:47:40 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 13:46:09 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 14 Sep 2000 13:46:07 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/14/2000 01:46:08 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ok...In a way this IS abuse of copyright. I wasn't thinking about it as a defense but more in a more "offensive" way....the DMCA should be amended to state that OK if you distribute works in a fashion that they can come into the public domain at the end of their copyright period FROM ANY COPY [if that means putting proprietary file formats in a 100yr escrow account so be it] then you will be granted full copyright protection during that term. BUT Should you indulge in access controls, encryption, proprietary formats, technology, or anything else that CAN prevent this required entering into the public domain from ANY copy THEN you have NO status under copyright law and may not sell items in the common market. You may license them but you will be required to collect and dispose of all copies yourself at the end of licensing periods (since the MPAA seems to want to sell DVDs and VHS tapes like they distributed 35mm film prints). Any copies you do not control are fair game and it's your own stupid fault if anybody cracks it and distributes it. Why do I say from ANY COPY? Many of the ancient Greek, Roman, Icelandic works came down through the centuries from only a few manuscripts. And even then, modern textual analysis shows that the copies were imperfect and that damage done at the page edges was "interpolated" by the scribes. Look at Moby Dick. I think Melville only sold a few hundred. Ditto for Clark Ashton Smith.'s poems. Chris Moseng To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] What is missing? arvard.edu 09/13/00 09:36 PM Please respond to dvd-discuss > > --- Michael.A.Rolenz@aero.org wrote: > > If you consider copyright as a contract between the government and > > the copyright holder, then the copyright holder gets certain rights > in > > exchange for letting the work enter the public domain upon > > expiration of the copyright. This is copyright law in its > > simplest form. If the work is distributed in such a manner that > > it cannot enter the public domain at the end of the copyright > > period then WHY should it be given copyright protection? This sounds like the reasoning behind the punishment for "misuse of copyright" being loss of copyright. I wouldn't be surprised if it could be argued that using the DMCA in a way such as Kaplan says it can be used would automatically qualify as misuse. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:47:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03139 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:47:24 -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 QAA03136 for ; Thu, 14 Sep 2000 16:47:06 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA13909 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 16:49:58 -0400 Date: Thu, 14 Sep 2000 16:49:52 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Message-ID: <20000914164952.C13837@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Wed, Sep 13, 2000 at 04:54:02PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 13, 2000 at 04:54:02PM -0700, Michael.A.Rolenz@aero.org wrote: >... > So another question is How do works enter into the public domain? > Previously there was a BOOK. There was sheetmusic. There were pictures. How > do works with access control permitted by the DMCA enter into the public > domain at the end of the copyright? The enactment of the DMCA seems to have > created a MAJOR contradiction in copyright law. I agree. Works enter the public domain when the "limited times" of copyright term expire. As Kaplan notes in a footnote, the question of CSS protecting a public domain work was not raised in this case and so he need not address it. However, there are certainly already public domain works that are protected by encryption and CSS-like access control. His finding raises a major contradiction already, in that the public is being denied access to works that belong to them; some form of "consent" is required by some technology, when the law gives no right to the publisher to require such consent. If publishers used a different form of TPM to lock up works under copyright, than the TPM they use for public domain works, then the case would be different. But since they are using the same TPM, circumvention for one means circumvention for all. I think it should be the other way around. Basically, his ruling is contradictory and unconstitutional at the same time. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:48:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03238 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:48:27 -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 QAA03227 for ; Thu, 14 Sep 2000 16:48:27 -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 QAA20896 for ; Thu, 14 Sep 2000 16:49:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA28466; Thu, 14 Sep 2000 16:49:34 -0400 (EDT) Date: Thu, 14 Sep 2000 16:49:34 -0400 (EDT) Message-Id: <200009142049.QAA28466@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: References: <200009141923.PAA27377@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeme A. Brelin writes: > > Jeme A. Brelin writes: > > > Free Software carries the idea that you MUST distribute your > > > source code (which may be identical to your object code, if > > > that's how you wrote the program) and everyone who receives > > > that code is free to modify and redistribute either the > > > original or their modified work. > > On Thu, 14 Sep 2000, Robert S. Thau wrote: > > Hmmm... I'm not sure that really reflects free software philosophy; > > perhaps it's misphrased. Stallman doesn't seem to think that, in > > general that "you MUST distribute" anything. For instance, > > I didn't say that you MUST distribute anything. I said that IF you > distribute, then you MUST distribute source. Sorry... I didn't see the "if you distribute", though I thought it might have been intended. > My cynical view of the dichotomy is that ESR is smart enough to see that > Free Software doesn't have the same monopolistic profit potential as any > old Open Source software, so he advocates a method that has the chance of > making him and his friends (and heaps of other people) filthy rich in the > process... under the guise of better software. Whereas RMS realizes that > you shouldn't have to justify every political and social movement with > profits. Well, not that I mean to discourage anyone from being cynical about Eric Raymond ;-), but I think it's fair to point out that a lot of his own software is GPLed (including, e.g., fetchmail, which is probably the most widely used of his original packages), and not released under other open source licenses, such as the Berkeley license, which do allow commercial, binary-only redistribution. But this is getting seriously off-topic. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:51:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03391 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:51:17 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA03388 for ; Thu, 14 Sep 2000 16:51:14 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 13:47:29 -0700 Subject: Re: [dvd-discuss]side comment To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 14 Sep 2000 13:47:28 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/14/2000 01:47:28 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu more frightening is that in France they use the Napoleonic Code..or is it a Bourbon code?. The presumption of the law is that there is sufficient evidence for your GUILT therefore prove your innocence. "Tuyet A. Ngoc Tran" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss]side comment arvard.edu 09/13/00 05:21 PM Please respond to dvd-discuss This is not to detract from the main discussion but here's an example of draconian measure, albeit non-US.(wrapped url) http://www.transfert.net/fr/cyber_societe/article.cfm?idx_rub=87&idx_art=1685 --- Michael.A.Rolenz@aero.org wrote: > Only if the program is artificially intelligent. > Otherwise it's should be > arrested since it's obviously loitering around the > CPU. > Following this case has made me understand that > there are whole groups of > people who are only now realizing that a computer is > NOT just another > appliance to be sold at a high profit margin. It's > the most versatile tool > ever devised by the human race and if others don't > use this tool the way > that THEY think others should be using it, they are > willing to take > draconian measures to try to control 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 Thu Sep 14 16:54:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03479 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:54:28 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA03476 for ; Thu, 14 Sep 2000 16:54:22 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 13:49:17 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 14 Sep 2000 13:49:15 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/14/2000 01:49:15 PM MIME-Version: 1.0 Content-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 might be nice to let them experience some of the consequences of their actions ("Jack..here me you will be visited by three ghosts tonight...the ghost of the internet past, the ghost of the internet present and the ghost of the internet future..",...."I am the Ghost of the Internet past) Tom Vogt Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] What is missing? 09/14/00 03:09 AM Please respond to dvd-discuss Chris Moseng wrote: > I wouldn't be surprised if it could be argued that using the DMCA in a > way such as Kaplan says it can be used would automatically qualify as > misuse. that would be a nice solution to the whole problem. why bother with getting rid of the DMCA if we can arrange for the people who bought the law to be wanting to kill it? :)) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:57:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03593 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:57:45 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA03590 for ; Thu, 14 Sep 2000 16:57:43 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 13:55:06 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 14 Sep 2000 13:55:04 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/14/2000 01:55:05 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Not wrong...copyright statutes have nothing to do with the growth of monopolies...but the argument is not expansive enough....you are quite correct. the DMCA by itself is NOT the only problem here. We have large publishing monopolies. We have large copyright durations (100 yrs). We have a lot of people who view the changes in media and formats as an opportunity to make up for business models that were thrown out decades ago. The incidious nature of having large monopolies regulating information is that they perform the form of censorship that governments cannot do (or at least ours generally does not) Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] What is missing? arvard.edu 09/13/00 05:10 PM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > > If you consider copyright as a contract between the government and the > copyright holder, then the copyright holder gets certain rights in exchange > for letting the work enter the public domain upon expiration of the > copyright. This is copyright law in its simplest form. If the work is > distributed in such a manner that it cannot enter the public domain at the > end of the copyright period then WHY should it be given copyright > protection? > > So another question is How do works enter into the public domain? > Previously there was a BOOK. There was sheetmusic. There were pictures. How > do works with access control permitted by the DMCA enter into the public > domain at the end of the copyright? The enactment of the DMCA seems to have > created a MAJOR contradiction in copyright law. Wrong. The major contradiction arose when the statutes passed under the copyright clause permitted the growth of major publishing monopolies; which the copyright clause was intended to prevent. All the DMCA does is demonstrate why we shouldn't allow the existence of major publishing monopolies with money enough to buy congress. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 16:59:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA03695 for dvd-discuss-outgoing; Thu, 14 Sep 2000 16:59:41 -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 QAA03669 for ; Thu, 14 Sep 2000 16:59:28 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA13943 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 17:02:19 -0400 Date: Thu, 14 Sep 2000 17:02:14 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914170214.D13837@eldritchpress.org> References: <20000913180504.4704.qmail@web512.mail.yahoo.com> <20000913171157.D11829@eldritchpress.org> <20000914031923.A6305@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000914031923.A6305@lemuria.org>; from tom@lemuria.org on Thu, Sep 14, 2000 at 03:19:23AM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 03:19:23AM +0200, Tom Vogt wrote: > Eric Eldred wrote: > > We need to argue a la Touretzky that object code or interpreted code > > is no different, or not substantially different enough to matter. > > But this is a very good quote. > > sorry, but I - and lots of other free software advocates - will not support > you there. object code *is* fundamentally different from source in that it > doesn't allow modification or even understanding of the software involved. > nonwithstanding the fact that most programmers - given time - can "read" > object code (by disassembling), it is as far away from source as the DMCA > is from shakespeare. The problem with this idea is that it relies on a factual situation, that a computer has to operate by distinguishing source code from object code. But this is not necessarily the case; it is only a convenience that assemblers became available to be able to compile from assembly language to machine code that can be directly executed, and then that high-level languages and compilers introduced yet another level. In principle, the information in any level can be transmuted into equivalent information at another level. And a machine could be built that would directly execute the information at any level. If this were not the case then it would be hard to see how object code could be copyrighted. And it would tend to preserve the idea as pre Bernstein that the code printed in a paper book is somehow different from the code on a diskette or transmitted in some form over the Internet. As far as free software is concerned, the copyright status of code is not changed from source to object. The availability of source code is not guaranteed by the First Amendment or by copyright law, only by a license. Trying to make a distinction here is just as hard as trying to distinguish the various types of hyperlinks that Kaplan tries to do--between those that "carry out some action" or those that just link to a home page that contains the equivalent information. The web sees no difference; it routes around such distractions. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 17:23:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04491 for dvd-discuss-outgoing; Thu, 14 Sep 2000 17:23:01 -0400 Received: from rgate3.ricochet.net (rgate3.ricochet.net [204.179.143.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA04488 for ; Thu, 14 Sep 2000 17:23:00 -0400 Received: from shannon (mg-206253200-9.ricochet.net [206.253.200.9]) by rgate3.ricochet.net (8.9.3/8.9.3) with SMTP id QAA13489 for ; Thu, 14 Sep 2000 16:24:08 -0500 (CDT) From: "John Dempsey" To: Subject: RE: [dvd-discuss] Rights Date: Thu, 14 Sep 2000 14:27:17 -0700 Message-ID: <002e01c01e92$8ecea620$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <200009141824.OAA00309@emperor.hwrd1.md.home.com> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Do the Rights granted in the U.S. Constitution to the "people" > also apply to legal entities such as businesses? It certainly > looks that way, but that seems horribly wrong IMO. I believe the Fourteenth Amendment laid the foundation for the designation of commercial entities as "people" under law. If you disagree with this you're one step closer to Nader, anti-globalism, and the Left (way past Al Gore). In the eyes of a U.S. court in a great many respects, Microsoft = me, and I agree this often leads to injustice. Some governments define corporations as servants of the public interest, subserviant to the public will, and not as free citizens in the ways you and I are free. After the revolution, we'll take care of this little loophole. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 17:22:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04467 for dvd-discuss-outgoing; Thu, 14 Sep 2000 17:22:42 -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 RAA04464 for ; Thu, 14 Sep 2000 17:22:29 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA14051 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 17:25:16 -0400 Date: Thu, 14 Sep 2000 17:25:11 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914172511.E13837@eldritchpress.org> References: <200009141923.PAA27377@soggy-fibers.ai.mit.edu> <200009142049.QAA28466@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200009142049.QAA28466@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Thu, Sep 14, 2000 at 04:49:34PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 04:49:34PM -0400, Robert S. Thau wrote: > Jeme A. Brelin writes: > > > Jeme A. Brelin writes: > > > > Free Software carries the idea that you MUST distribute your > > > > source code (which may be identical to your object code, if > > > > that's how you wrote the program) and everyone who receives > > > > that code is free to modify and redistribute either the > > > > original or their modified work. > > > > On Thu, 14 Sep 2000, Robert S. Thau wrote: > > > Hmmm... I'm not sure that really reflects free software philosophy; > > > perhaps it's misphrased. Stallman doesn't seem to think that, in > > > general that "you MUST distribute" anything. For instance, > > > > I didn't say that you MUST distribute anything. I said that IF you > > distribute, then you MUST distribute source. > > Sorry... I didn't see the "if you distribute", though I thought it > might have been intended. > > > My cynical view of the dichotomy is that ESR is smart enough to see that > > Free Software doesn't have the same monopolistic profit potential as any > > old Open Source software, so he advocates a method that has the chance of > > making him and his friends (and heaps of other people) filthy rich in the > > process... under the guise of better software. Whereas RMS realizes that > > you shouldn't have to justify every political and social movement with > > profits. > > Well, not that I mean to discourage anyone from being cynical about > Eric Raymond ;-), but I think it's fair to point out that a lot of his > own software is GPLed (including, e.g., fetchmail, which is probably > the most widely used of his original packages), and not released under > other open source licenses, such as the Berkeley license, which do > allow commercial, binary-only redistribution. > > But this is getting seriously off-topic. Trying to get this back on topic, I too believe that Free Software is not an issue here, when considering applicability of the First Amendment to software. The First Amendment (free speech, code as speech) argument merely raises the issue of how a judge has to consider the case. If First Amendment issues are involved, then a level of scrutiny has to be decided. As you can see from Bryan's outline, it is very important that the judge fix the correct level of scrutiny, and we need to argue that he has not. In addition, we need to argue that he did not perform a proper job of scrutiny. We need to show that he cannot decide an issue such as whether or not a technology being "trafficked" is indeed a circumvention of copyright rights, unless he carefully uses the standards as in the O'Brien case of considering the facts in a situation, where speech can be part content. We do not need to argue that source code or object code or whatever is *always* protected or not protected, only that in this case he has not protected it properly. Kaplan tries to consider these issues but fails. His order does not understand how computers and technologies work and cannot be used as a precedent to decide on the applicability of Right Coast code to Left Coast code. We are not in the business here of deciding between ESR and RMS: it is not about the virtue of Free Software, so much as that a draconian view of how copyright is to be protected does impact the free speech of Free Software people--no matter if the resulting code is commercially valuable, or if source code is licensed to be available. Certainly both ESR and RMS can oppose Kaplan's ruling, and RMS can proclaim that software should always be free as in free speech, without affecting this case. So can we return now to Bryan's outline with a better understanding of the free speech issue? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 17:24:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04630 for dvd-discuss-outgoing; Thu, 14 Sep 2000 17:24:07 -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 RAA04625 for ; Thu, 14 Sep 2000 17:24:05 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id OAA18717 for ; Thu, 14 Sep 2000 14:25:10 -0700 Date: Thu, 14 Sep 2000 14:25:09 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: <20000914185650.18810.qmail@web515.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 14 Sep 2000, Bryan Taylor wrote: > --- Jeme A Brelin wrote: > > I disagree. Making source code available makes it EASIER for > > your users to make changes to your work, but releasing object code > > only doesn't prevent anyone from modifying your work > > It might not prevent *everyone* from modifying it, but when you say it > doesn't prevent 'anyone', I frumple my brow. By that line, releasing source in Python, C, Pascal, or ADA prevents MOST people from modifying the work as well. I just mean to say that how many people UNDERSTAND your expression shouldn't be a factor in determining whether or not you are allowed to express it. Revolutionary, subversive, or otherwise unwanted ideas have every right to be concealed by their authors. (But I don't believe that a concealed message can be considered "published" for purposes of copyright protection, either. This is where we need better definition in law; not in interpretation of the First Amendment, but in the interpretation of Article I. Section 8.) The fact is that copyright only prevents other people from achieving financial or commercial gain from reproduction of the work copyrighted. It just so happens that technology has made ANYONE gaining "financially or commercially" from reproducing the work much more difficult. The supply is infinite. Regardless of demand, that makes the value approach zero. > It easily prevents 99% of people from doing this, as a practical > matter. Courts have ruled that trade secrets status is not lost simply > because one has published object code, for precisely this very reason. The court is in error. We need to fix that. Publishing object code is publishing a detailed description of a process. That's not how you keep secrets. What if I publish trade secrets in piglatin? How far do I have to remove the publication from "common" understanding before it's no longer considered "public"? > If you publish the object code and NOT the source then you are trying > to assure that it is more difficult for people to decipher. The licence > on the source code doesn't matter for communication purposes, only for > copyright purposes (redistribution of derivitive works). Access to the > source code is all that is needed to read it and learn from it. If it's > released under the most restrictive licence allowed by law, then I have > no doubt that a trade secret status would be lost, because by doing so, > the writer is trying to communicate the programming ideas. See above. What is the strict test, then, for publication of ideas? The Crusoe processor doesn't use a 386 instruction set, but you can run 386 code on it. There's a bit of software embedded in there to emulate the 386 and interpret the code. Can I say that my Perl interpreter is an emulator for a Perl processor that hasn't yet been invented, yet translates the object code of my Perl processor into object code understood by the processor on which I'm trying to emulate the device? The same could be said for Java in a less absurd comparison. An emulator is an interpreter (and sometimes a compiler, for just-in-time sorts of applications) and object code can become source. Object code maybe HARDER to read. It may be that FEWER people are capable of reading it. But publishing it is still publication. And while no particular implementation is the same as an ideal, there's no reason to believe that giving an example of an implementation of your secret is any different from giving the secret itself. Abstraction is a natural process, not one that we work to implement. > I disagree, the distinction is that source code is NEVER functional (as > Fletcher pointed out in Bernstein) and contains ideas that are clearly > lost in the transformation to object code. And object code contains ideas that are CREATED in the compiling process. And can it really be said that source code is NEVER functional? What about interpreted languages where there is not dinstinct step for the opreator between compilation and execution? Realize that it is the duty of the court to err on the side of freedom, here. There are clear (though perhaps hypothetical) situations where an expression in object code is the best way to communicate an idea. The intended audience (or its relative size) is irrelevant to the first amendment. That's what I have to say, anyway. Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 17:33:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA04870 for dvd-discuss-outgoing; Thu, 14 Sep 2000 17:33:24 -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 RAA04867 for ; Thu, 14 Sep 2000 17:33:23 -0400 Received: (qmail 21515 invoked by uid 60001); 14 Sep 2000 21:34:29 -0000 Message-ID: <20000914213429.21514.qmail@web115.yahoomail.com> Received: from [128.122.253.144] by web115.yahoomail.com; Thu, 14 Sep 2000 14:34:29 PDT Date: Thu, 14 Sep 2000 14:34:29 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] News 9.14 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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/zdnn/stories/news/0,4586,2627468,00.html Snipped excerpt: ["If a new technology has a single present or potential legal use that is of social or commercial importance, then there cannot be a bar against the use of that technology," said Jonathan Schiller, who is representing Napster along with his law partner, David Boies. Boies gained fame as the special Justice Department attorney in its antitrust case against Microsoft Corp. Will it fly? Of course, that's not an argument everyone buys -- including one of the attorneys who argued on behalf of the Betamax before the Supreme Court in the 1980s.Donald E. Sloan, a Los Angeles attorney who has since retired from law, says the legal parts of Napster's operation aren't substantial enough to meet the high court's rather amorphous threshold for being "substantial." It's no surprise that the Betamax case is playing so large a role in the Napster controversy, since the parallels between the two are striking. In both instances, an array of powerful entertainment industry forces argued that a new technology threatened it with doom.Napster says that just as the film industry was wrong about the VCR -- which has since proved to be the foundation for billions of dollars in tape rentals and sales -- so too will the music industry prove one day to be wrong about Napster. Peter Jaszi, a law professor at American University who helped draft a brief in support of Napster's arguments, said that in the Sony case, the Supreme Court recognized that "it's not a good idea for copyright owners to have an effective veto over new, evolving technologies, since they will often try to suppress those technologies to protect their monopolies."] ----end of snip--- __________________________________________________ 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 Sep 14 17:47:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA05375 for dvd-discuss-outgoing; Thu, 14 Sep 2000 17:47:53 -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 ESMTP id RAA05372 for ; Thu, 14 Sep 2000 17:47:52 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 14 Sep 2000 14:48:29 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 14 Sep 2000 21:48:29 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims Date: Thu, 14 Sep 2000 17:48:29 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Sep 2000 21:48:29.0784 (UTC) FILETIME=[85115580:01C01E95] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred Wrote: >The "rights" of copyright holders under Berne Convention (and thus >WIPO) are considerably different from the "exclusive rights" specified >in the U.S. Constitution... The constitution says "exclusive right", NOT "rights". This was no mistake either! One of the amici in your own case uses this as a forceful tool to illustrate that the Sony Act is unconstitutional. The DMCA's grant of an access control right may be enough to show the abuse of congress in expanding the exclusive right (to vend) to "authors" (or more sadly, to corporations that hire authors). This should be the straw that breaks the camel's back and allow the supreme court to set copyright straight again. _________________________________________________________________________ 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 Thu Sep 14 18:07:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05913 for dvd-discuss-outgoing; Thu, 14 Sep 2000 18:07:41 -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 SAA05910 for ; Thu, 14 Sep 2000 18:07:39 -0400 Message-ID: <20000914220817.18763.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 14 Sep 2000 15:08:17 PDT Date: Thu, 14 Sep 2000 15:08:17 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Outline for Appellate Amicus Version 3 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu OK, Here's Version 3. This one doesn't have any placeholders. I added a short "Interest of the Amici" section. I copied Robert's outline into the section IV "Access with Authority" 98% as-is. (I added one bullet and made very minor formating changes). OK, comment away, but if you are proposing changes, try to be specific. ______________________ I) Interest of the Amici A) Who we are: programmers, scientists, lawyers, students, etc... B) Common bond: individual liberty in the new media 1) Internet & Computers empower the public 2) Voluntary contribution to intellectual commons 3) Passion for the public benefit through the progress of science 4) Respect for the proper balance of intellectual property rights C) Openlaw concept: use open source methods for legal argument 1) Open to the public 2) Brought together by the internet 3) Extensive use of Internet resources II) Kaplan's O'Brien Analysis is Hopelessly Flawed A) O'Brien standard for intermediate scrutiny does not apply 1) Computer speech not in scope of statue a) 1201(c)(4) b) 'Technology' not a smoke screen intended to include speech 2) Prior Restraints forbidden a) 1203(b)(1) vs Kaplan ellipses b) Constitutional requirement 3) Not "regulating the nonspeech element" in "course of conduct" a) Functional capability only after installed on a machine b) Conduct of distributing code is purely speech-conduct c) Voluntary public sharing is part of open source's message d) Kaplan ignored Fletcher's reasoning in Bernstein and took refuted position of dissent w/o rebutting analysis i) admixture of functionality does not diminish protection ii) source code not even arguably 'functional' iii) intended for human understanding => not conduct iv) extensive expert testimony on expresiveness of code e) Compare Bery v. City of New York: Peddling Art not "conduct", street marketing was part of the message 4) Strict scrutiny is proper standard (Cite Bernstein) B) O'Brien requires intermediate scrutiny, not "rubber stamp" 1) Cite Horton v. Houston: may not just "rubber stamp" 2) Review of O'Brien Standard a) within the constitutional power of the Government b) furthers an important or substantial government interest c) content neutral, unrelated to the suppression of free expression d) incidental restriction no greater than essential to further interest 3) Foti v Menlo Pk, Ladue v Gilleo: content-based exceptions fail 4) Cite US v. Playboy: speaker-based restrictions are content-based 5) Distinctions on kinds of speech & Equal Protection Clause. Cite Ladue v Gilleo, Carey v Brown, PD of Chicago v Mosley 6) Compelled speech is content-based restriction Riley v NFB 7) Review Overbreadth doctrine & "standing" 8) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral 9) Review vagueness doctrine a) Selective enforcement not allowed b) Prior Restraint by permit not allowed c) Cite Young v. Simi Valley to disallow 3rd party veto 10) Distinguish Time, Manner, Place cases from symbolic speech cases (Cite Reno v ACLU) C) DMCA not "within constitutional power" of Congress 1) Don't agree within the Copyright or Commerce Power 2) Defer to others better positioned for details D) Does not "further substantial governement interest" 1) "Full Disclosure" best security approach. DMCA futhers insecurity, not security. 2) Congress shirked duty to show protecting weak systems will inhibit piracy E) Not content neutral, depends on examining content 1) Code communicates a factual method a) Source code provided for benefit of human readers b) Object code, especially when combined with source code has communication value to skilled readers c) Science of computer security depends on such communications 2) Would place all of science under intermediate scrutiny 3) Must scrutinize content of code to tell if it decrypts eg: Compare DeCSS to DoD Speed Ripper -- which decrypts? 4) 1201(d,e) exceptions are speaker-based 5) 1201(f)(3) turns on content of speech to determine "purpose" for why one "provides such information" 6) 1201(g) exception for "encryption" research excludes other forms of research based solely on their content 7) 1201(g)(3)(A) favoring research when "information ... was disseminated" is content-based compelled speech 8) 1201(g)(3)(B) turning on "whether the person is ... in the field of encryption technology" is speaker-based 9) 1201(g)(4) allows dissemination to "person ... working collaboratively" is content based, and contradicts 1201(g)(3)(A) 10) 1201(k) allowing distribution for "security testing" is content-based F) Not "incidental restriction" 1) Guts "fair use", betrays "fair use community" 2) No alternative outlet for communicating methods 3) Act of distributing code is "pure speech" 4) Lack of "intent to infringe" clause burdens legit activity III) Reverse Engineering Wrongly Denied A) Review of the law 1) 1201(f)(4) definition of interoperability 3) 1201(f)(1) is not yet in effect, unneeded 4) 1201(f)(2) provides two separate exceptions to (a)(2) 5) 1201(f)(3) provides exception to (a)(3) 6) No Copyight Infringement standard 7) Purpose is to preserve existing RE law B) Kaplan abused discretion by ignoring overwhelming evidence that DeCSS was created to advance interoperability 1) Kaplan wrongly assumes that DVD is not "program" w/o evidence 2) Purpose of LiViD is clearly interoperability 3) Evidence & testimony all show firm LiViD, DeCSS connection a) Derek Fawcus, LiViD member rewrote key parts of DeCSS b) Johansen released code to LiViD c) DeCSS release to LiViD typifies method for open source contribution d) IRC release of decss shows nothing e) Kaplan egregiously ignores testimony of Pavlovich f) Kaplan ignores Pavlovich offer to demonstrate LiViD player 4) Kaplan shows bias, misunderstanding with remarks regarding "adherents of a movement" a) Assertions totally unsupported by record b) Belies unwillingness to conduct evidence based analysis 5) Setting the record straight regarding open source movement a) Open source is development by the public b) Open source exemplifies public benefit through copyright c) Open source advocates *voluntary* release of ideas d) Historic role of reverse engineering proprietary protocols 5) DeCSS qualifies for first (f)(2) exception 6) DeCSS qualifies for second (f)(2) exception 7) DeCSS qualifies for (f)(3) exception IV) Access With Authority A) Authority adheres to persons, not devices 1) Kaplan and plaintiffs argue that DeCSS is unauthorized *device* a) Licensed-CSS and DeCSS provide access in the same way in the same circumstances b) No person can gain access to a work through DeCSS which licensed-CSS would not provide c) "Authority of the copyright owner" in 1201(a)(3) is being interpreted as the authority over production of a device, not authority to grant access to a specific person. 2) "Authorized device" interpretation is inconsistent with the law a) 1201(c)(3) b) Implies circular reasoning in (a)(2) 3) "Authorized device" interpretation is facially unconstitutional a) Patent-like rights, no time limit (vs. "for limited times") b) Rights to an invention granted to authors. 4) "Authorized device" interpretation is inconsistent with documented Congressional intent a) "Authorized person" in Judiciary section-by-section analysis b) "... without consulting other interested parties" in conference committee report c) Effectively grants statutory protection to use controls, *specifically* denied by Congress d) ?Sony speeches? e) ?"Authorized person" in the cable statute definitions, cited as a parallel in the Judiciary section-by-section analysis? 5) Other arguments advanced for "authorized device" interpretation are groundless a) Plaintiffs' "encryption, therefore access control" fails i) Text of statute: no reference to crypto in (a)(3)(B), "decrypts or ..." just about anything else in (A). ii) Judiciary section-by-section analysis confirms no statutory definition of particular protected technologies b) Kaplan's "requires a player key, no other lawful way to get it, therefore an access control" i) Reverse-engineering is a lawful way of getting a player key; cite Sega v. Accolade, & Judiciary analysis ii) This simply means that access is provided if CSS is functioning normally; by that standard, a power cord is an access control. B) Defendants had legitimate purposes 1) Legitimate purposes for building a non-licensed player: a) Bypassing region coding, sole purpose is restraint of trade b) Bypassing use controls, e.g., no hi-res digital output (HDTV) 2) Defendants' uncontested testimony, they were building a player 3) Kaplan ignored that based on hearsay and speculation from plaintiffs' witnesses --- abuse of discretion. C) Effects of "authorized device" interpretation 1) Imposition of use controls 2) Distortion of player market 3) Overruling Universal v. Sony, U.S. v. Paramount, etc. IV) Kaplan Abused Discretion with Overbroad Injunction A) Prior Restraint Applies to more than DeCSS.exe executable 1) Applies to inherently non-executable Source Code 2) Convolutes DeCSS with other programs a) Assumes "DeCSS not RE" implies "All programs not RE" b) Assumes all decryption allows copy stored on hard drive 3) Application to hyperlinks gross abuse of discretion B) Fallacy of Kaplan's "resolved by Congress" viewpoint 1) Abdicates Constitutional role for judicial review a) "Congress shall make no law ..." b) Checks and balances exist to correct special interests from subverting legislature contravening public interest 2) Kaplan substituted his judgement for that of Congress, erases critical statutory safeguards from the Copyright Act a) No analysis of 1201(c)(4) b) Dismisses 17 USC 109(c) as "sophistry" c) Ellipses over "no prior restraints" 1203(b)(1) __________________________________________________ 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 Sep 14 18:16:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA06226 for dvd-discuss-outgoing; Thu, 14 Sep 2000 18:16:58 -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 SAA06216 for ; Thu, 14 Sep 2000 18:16:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 15 Sep 2000 00:11:42 +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; Thu, 14 Sep 2000 23:59:30 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 14 Sep 2000 23:59:30 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914235929.A9182@lemuria.org> References: <20000914001106.3529.qmail@web512.mail.yahoo.com> <8pr2oq$mqq$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <8pr2oq$mqq$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: > > The source code was passed back and forth between many people > > (Johansen, Fawcus, Stevenson, Touretzky, Pavlovich, etc...) who read > > it, learned from it, discussed it, and adapted it to their purposes. > > And sharing code is everyday practice in the research community, as > Touretzky testified. It is one of the routine modes of communication, > and one for which there is no equivalent alternative available. didn't someone mention a precedent that ruled that mathematics is speech? code is just the math symbols of information theory. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 18:47:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA07416 for dvd-discuss-outgoing; Thu, 14 Sep 2000 18:47:00 -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 SAA07413 for ; Thu, 14 Sep 2000 18:46:58 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 15 Sep 2000 00:38:18 +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; Fri, 15 Sep 2000 00:23:33 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 15 Sep 2000 00:23:33 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Message-ID: <20000915002333.B9645@lemuria.org> References: <20000914164952.C13837@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000914164952.C13837@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: > > So another question is How do works enter into the public domain? > > Previously there was a BOOK. There was sheetmusic. There were pictures. How > > do works with access control permitted by the DMCA enter into the public > > domain at the end of the copyright? The enactment of the DMCA seems to have > > created a MAJOR contradiction in copyright law. > > I agree. Works enter the public domain when the "limited times" > of copyright term expire. As Kaplan notes in a footnote, the > question of CSS protecting a public domain work was not raised [...] > other way around. Basically, his ruling is contradictory and > unconstitutional at the same time. not at all! the COPYRIGHT expires, but the ACCESS CONTROL RIGHT does not. once the (c) has expired, you can copy freely, as long as you don't violate the access control. (yeah, that is a lot of what we in germany call "wasch mich, aber mach' mich nicht nass" (wash me, but don't get me wet).) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 18:46:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA07409 for dvd-discuss-outgoing; Thu, 14 Sep 2000 18:46:58 -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 SAA07405 for ; Thu, 14 Sep 2000 18:46:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 15 Sep 2000 00:38:18 +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; Fri, 15 Sep 2000 00:17:56 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 15 Sep 2000 00:17:56 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000915001756.A9645@lemuria.org> References: <20000913180504.4704.qmail@web512.mail.yahoo.com> <20000913171157.D11829@eldritchpress.org> <20000914031923.A6305@lemuria.org> <20000914170214.D13837@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000914170214.D13837@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: > The problem with this idea is that it relies on a factual > situation, that a computer has to operate by distinguishing > source code from object code. But this is not necessarily > the case; it is only a convenience that assemblers became > available to be able to compile from assembly language to > machine code that can be directly executed, and then that > high-level languages and compilers introduced yet another > level. In principle, the information in any level can be > transmuted into equivalent information at another level. > And a machine could be built that would directly execute > the information at any level. yes, there are interpreted languages, where no object code exists. however, we ARE dealing with object code in this case, and commercial software especially is usually distributed in object code form. plus, there IS a difference in information at the various levels. for example, you lose symbol names and comments when compiling - the object code only knows addresses and contains no comments. I consider this important, because these two elements - commentary and symbolic names (if well choosen) - contain the highest expressive content. > As far as free software is concerned, the copyright status > of code is not changed from source to object. The > availability of source code is not guaranteed by the First > Amendment or by copyright law, only by a license. correct. since I'm not a lawyer I make a distinction based on what it is and what it does. object code and source code do contain different sets of information. object code is missing much of the expressive content and has a higher functional value, while source is not directly functional, but much more expressive. (compiled languages only. I restrict myself to these because DeCSS and those derivates I have received, DeCSSplus and DecVOB are written in such a language.) -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 18:59:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08012 for dvd-discuss-outgoing; Thu, 14 Sep 2000 18:59:23 -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 SAA08009 for ; Thu, 14 Sep 2000 18:59:22 -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 TAA22213 for ; Thu, 14 Sep 2000 19:00:28 -0400 (EDT) Message-ID: <39C1588B.74F7078C@mediaone.net> Date: Thu, 14 Sep 2000 19:00:27 -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] Bernstein opinion on "conduct" References: <20000914185650.18810.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 disagree, the distinction is that source code is NEVER functional (as > Fletcher pointed out in Bernstein) and contains ideas that are clearly > lost in the transformation to object code. > For LISP, and any other interpreted language, the source code is exactly as functional as the "object code," and the "object code" is exactly as readable as the source code. They're the same thing. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:04:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08264 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:04:20 -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 TAA08261 for ; Thu, 14 Sep 2000 19:04:19 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 14 Sep 2000 16:04:57 -0700 Received: from 38.30.237.6 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 14 Sep 2000 23:04:57 GMT X-Originating-IP: [38.30.237.6] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims Date: Thu, 14 Sep 2000 19:04:57 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 14 Sep 2000 23:04:57.0173 (UTC) FILETIME=[335D5850:01C01EA0] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ugh. I wrote: >...the Sony Act is unconstitutional. The DMCA's grant of Typo? Mental substitution? You be the judge! I meant to say Sonny Act as in Sonny Bono Copyright Extension Act. _________________________________________________________________________ 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 Thu Sep 14 19:16:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08600 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:16:31 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA08597 for ; Thu, 14 Sep 2000 19:16:30 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 16:17:14 -0700 Subject: Re: [dvd-discuss] 1201(b)(1) Claims To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 14 Sep 2000 16:17:12 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/14/2000 04:17:13 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Unfortunatly having the Supreme court intervene continually in the lawmaking process is unhealthy, as Abe Fortas argued in the special circumstances involved in getting a lawyer if you can't afford one. Part of this problem has been caused by Congress not doing their job and writing a decent law. At some point somebody should have said "MPAA, I don't care how much you lobby, what you want it violates copyright fundamentals and will be thrown out by the Supreme Court. Get lost" but they didn't "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] 1201(b)(1) Claims arvard.edu 09/14/00 02:50 PM Please respond to dvd-discuss Eric Eldred Wrote: >The "rights" of copyright holders under Berne Convention (and thus >WIPO) are considerably different from the "exclusive rights" specified >in the U.S. Constitution... The constitution says "exclusive right", NOT "rights". This was no mistake either! One of the amici in your own case uses this as a forceful tool to illustrate that the Sony Act is unconstitutional. The DMCA's grant of an access control right may be enough to show the abuse of congress in expanding the exclusive right (to vend) to "authors" (or more sadly, to corporations that hire authors). This should be the straw that breaks the camel's back and allow the supreme court to set copyright straight again. _________________________________________________________________________ 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 Thu Sep 14 19:19:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA08750 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:19:20 -0400 Received: from rgate4.ricochet.net ([204.179.143.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA08747 for ; Thu, 14 Sep 2000 19:19:19 -0400 Received: from shannon (mg-206253200-9.ricochet.net [206.253.200.9]) by rgate4.ricochet.net (8.9.3/8.9.3) with SMTP id SAA00853 for ; Thu, 14 Sep 2000 18:23:29 -0500 (CDT) From: "John Dempsey" To: Subject: RE: [dvd-discuss] Bernstein opinion on "conduct" Date: Thu, 14 Sep 2000 16:23:35 -0700 Message-ID: <001a01c01ea2$ce28a7c0$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: <20000915001756.A9645@lemuria.org> X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > plus, there IS a difference in information at the various levels. for > example, you lose symbol names and comments when compiling - the > object code > only knows addresses and contains no comments. I consider this important, > because these two elements - commentary and symbolic names (if well > choosen) - contain the highest expressive content. I don't know the point in debate here regarding levels of computer codes, of course there are levels, but the point was made convincingly (to Kaplan himself) about the convertability from any level to any level in code. I hope human readability or human "expressiveness" is no factor in protecting speech because then obviously, as a programmer, I risk sanction for simply expressing myself. Yet the law illegalizes specific ideas, presumably in any form. I don't know how this will stand against the 1st Amendment, and i can imagine only a vague idea that a code's 'executeability' could be a factor around which some constitutional balancing act occurs. Though the idea pops to mind of distributing the .exe with a note saying, "Change the first byte to 'P'". In the testimony and in the deCSS site where the algorythm takes various forms, a language was 'invented', for which there exists no compiler, and the decryption process was described in this language. In theory, a compiler Could be created for this language, so the content is therefore illegal. It's the ideas themselves now illegal to express, in source, object, song, or tee-shirt, with increasing risk for doing so. "Not in my America." John From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:32:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09080 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:32:31 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA09077 for ; Thu, 14 Sep 2000 19:32:29 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 16:33:09 -0700 Subject: Re: [dvd-discuss] Regulating violence in the media To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 14 Sep 2000 16:33:08 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/14/2000 04:33:08 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Having copyright only held by people won't work...Intellectual property can be bought and sold. Corporations are recognized as legal entities with some rights. Therefore corporattions can buy it and sell it (under the 14 amendment). BUT you do have a point that the lifetime of a corporation is longer than the lifetime of most persons. (Warner Bros has been around since the 20s.) and can hold the copyright longer. With the recent increases in copyright duration, corporate monopolies, changes in law and the fact that even a small group of individuals cannot muster the resources of a large corporation, TOGETHER they have created an extreme imbalance of the "intellectual property" laws that is NOT serving the intent of the having them in the first place BTW, it's not just the DMCA. Check out the fact that songwriters are now "working for hire" for the RIAA members thanks to a congressional staffer who slipped that one in as a rider on a bill and now works for the RIAA. I think that this is only the beginning. A comment: "Information want to be free"...there is no information in just about 99% of the films released by Hollywierd. Sphere To: dvd-discuss Sent by: owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: [dvd-discuss] Regulating violence in the media 09/14/00 06:00 AM Please respond to dvd-discuss Today's big topic on the hill is violent material being marketed to children. It would be easy for congress to regulate violence marketed by big media. Change the copyright law to allow copyright only to human beings and place short statutary limitations on the duration of copyright contracts. No big media therefore no big media marketing. (Boy is the MPAA being two-faced here. Government cannot censor, but they can?) -- Sphere. "Information wants to be free" is not a short course in economics. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:33:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09089 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:33:18 -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 TAA09086 for ; Thu, 14 Sep 2000 19:33:06 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA14270 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 19:35:59 -0400 Date: Thu, 14 Sep 2000 19:35:54 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report Message-ID: <20000914193554.A14194@eldritchpress.org> References: <20000914073258.37998.qmail@web9403.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 Thu, Sep 14, 2000 at 12:39:57PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 12:39:57PM -0400, Ron Gustavson wrote: >... > These reports create the fiction that representatives are actually > participating in legislation. I'm sure the version that was submitted > by Time Warner was much clearer. It's all part of the show. As long > as the stagehands don't screw up the story line, the producers are happy. I can't resist a reference to the recent appearance by candidate Al Gore on the Oprah Winfrey show. His handlers considered the appearance a success because Ophrah concluded by saying, "He's a fun, funny guy." The victory of the show (entertainment) over content. If Oprah can't sell him to the public, nobody can. And this is the person to whom President Clinton referred all questions of telecommunications and computer policy. The DMCA is just an implementation of the White Paper, no surprise. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:40:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09413 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:40:39 -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 TAA09410 for ; Thu, 14 Sep 2000 19:40:38 -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 TAA27140 for ; Thu, 14 Sep 2000 19:41:45 -0400 (EDT) Message-ID: <39C1623A.4609DD0E@mediaone.net> Date: Thu, 14 Sep 2000 19:41:46 -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] Regulating violence in the media 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: > > A fur lined rabbit hole! > > The suggestion that the government should regulate the > entertainment industry is chilling, though, even if there > is a constitutional way to do it, which is doubtful. I don't want government regulating the entertainment industry. I want the entertainment industry to consist of a large number of small players, not a small number of big players. I'm just proposing a theory that if it were a large number of small players we'd have a lot more good art and a lot less junk -- and I'm pretty sure we'd have less mass marketing of junk. (I'm leaving the definition of 'junk' up to the reader.) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:47:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09614 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:47:26 -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 TAA09610 for ; Thu, 14 Sep 2000 19:47:25 -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 TAA16715 for ; Thu, 14 Sep 2000 19:48:31 -0400 (EDT) Message-ID: <39C163D0.C4AE4B43@mediaone.net> Date: Thu, 14 Sep 2000 19:48:32 -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] Rights References: <200009141824.OAA00309@emperor.hwrd1.md.home.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Bauer wrote: > > Harold Eaton wrote: > > > >While mostly true, I believe that this notion of copyright on > >unpublished works is unconstitutional - it fails to promote > >the progress of the useful arts. More to the point, in order to > >exercise the rights - i.e. bring suite against a violator, you > >must first file the work with the copyright office; is this not > >pretty close to publishing? Can I not examine all that is filed > >with the copyright office at the library of congress? > > Do the Rights granted in the U.S. Constitution to the "people" > also apply to legal entities such as businesses? It certainly > looks that way, but that seems horribly wrong IMO. By one of the worst rulings ever to come out of the Supreme Court, yes. Businesses are people. I think this doctrine has eroded a bit, but you can bet that the monopolies work hard to keep this from being reversed. At least, when the time comes, software will be able to get itself declared a person too by the simple expedient of incorporating. > -- > Jim Bauer, jfbauer@home.com -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:52:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09821 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:52:28 -0400 Received: from web9402.mail.yahoo.com (web9402.mail.yahoo.com [216.136.129.108]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA09818 for ; Thu, 14 Sep 2000 19:52:27 -0400 Message-ID: <20000914235305.72757.qmail@web9402.mail.yahoo.com> Received: from [209.90.98.79] by web9402.mail.yahoo.com; Thu, 14 Sep 2000 16:53:05 PDT Date: Thu, 14 Sep 2000 16:53:05 -0700 (PDT) From: Phill K Subject: Re: [dvd-discuss] 1201(b)(1) Claims To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu No. it's ESP you're gifted :) --- Harold Eaton wrote: > Ugh. > > I wrote: > >...the Sony Act is unconstitutional. The DMCA's > grant of > > Typo? Mental substitution? You be the judge! > > I meant to say Sonny Act as in Sonny Bono Copyright > Extension > Act. > > _________________________________________________________________________ > 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. > __________________________________________________ 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 Sep 14 19:57:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09932 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:57:03 -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 TAA09929 for ; Thu, 14 Sep 2000 19:57:02 -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 TAA10657 for ; Thu, 14 Sep 2000 19:58:09 -0400 (EDT) Message-ID: <39C16612.321E681E@mediaone.net> Date: Thu, 14 Sep 2000 19:58:10 -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] Bernstein opinion on "conduct" References: <39C0AF17.422BD3A5@mediaone.net> <200009141923.PAA27377@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: > > Jeme A. Brelin writes: ... > > FWIW, my impression of the open source/free software dichotomy is that > Stallman argues for the freedoms of free software as a matter of moral > right, while open source advocates such as Eric Raymond argue for open > source licenses as a matter of what pragmatically makes for a better > product. Stallman never says that you MUST distribute your code; he > argues that you SHOULD distribute source if you do on moral grounds, > while Raymond also thinks you should, most of the time, on economic > grounds, because most of the time you'll be better off in the long > run. It's a difference in basic philosophy, but doesn't really have > all that much practical impact. > > rst When I became aware of "open source/free software" there was no distinction. Forgive me for not keeping up to date. I will rephrase my position -- GPL is good. The one time I talked to Stallman on the phone he struck me as on the outer limits, but having people on the edge of reality is good too. It keeps the rest of us sane. -- Sphere. "Information wants to be free" is not a short course in economics. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 19:58:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10001 for dvd-discuss-outgoing; Thu, 14 Sep 2000 19:58:29 -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 TAA09998 for ; Thu, 14 Sep 2000 19:58:28 -0400 Received: from Jana-Server (user-38ld3j4.dialup.mindspring.com [209.86.142.100]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id TAA13976 for ; Thu, 14 Sep 2000 19:59:35 -0400 (EDT) Message-ID: <39C16656.C79E1F7C@mindspring.com> Date: Thu, 14 Sep 2000 19:59:19 -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] Outline for Appellate Amicus Version 3 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Another legitimate purpose for building a non-licensed player is to save money, as in: > B) Defendants had legitimate purposes > 1) Legitimate purposes for building a non-licensed player: > a) Bypassing region coding, sole purpose is restraint of trade > b) Bypassing use controls, e.g., no hi-res digital output > (HDTV) > c) To make a player from scratch (maybe this should be the first mentioned) 2) Defendants' uncontested testimony, they were building a player Maybe add something like "quest for knowledge" as a legitimate purpose. Excellent outline. mickeym From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 20:06:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10333 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:06:16 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA10330 for ; Thu, 14 Sep 2000 20:06:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA14327 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 20:08:57 -0400 Date: Thu, 14 Sep 2000 20:08:51 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Message-ID: <20000914200850.B14194@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, Sep 14, 2000 at 12:47:45PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 12:47:45PM -0400, Harold Eaton wrote: > Bryan Taylor wrote: > > >Well, you can copyright unpublished works and exclude others > >completely; you just can't SELL it and do so. I think you should say > >"WHY should the author be allowed to profit from his copyright > >protection". > > While mostly true, I believe that this notion of copyright on > unpublished works is unconstitutional - it fails to promote > the progress of the useful arts. More to the point, in order to > exercise the rights - i.e. bring suite against a violator, you > must first file the work with the copyright office; is this not > pretty close to publishing? Can I not examine all that is filed > with the copyright office at the library of congress? Most of the following is off the subject of this list, so skip it if you can.... I agree with your opinion. However, in the case of an unpublished work (it has to meet specific requirements) the copyright holder can deposit a copy along with registration, and since it is unpublished the Copyright Office is not supposed to send it to the Library of Congress so you can examine it. The copyright registration online at locis.loc.gov has a code "U" to indicate "unpublished." In spite of all that, the last time I noticed a dispute over copyright of an unpublished work (the Utah Lighthouse Ministry v some arm of the LDS), it appears that the work got the "U" code but somehow *was* deposited at the LOC. Strangely, the copyright registration also indicated the copyright only applied to "new material, compilation, etc." in spite of the fact that I was unable to discover any previous registration of the work. The work was claimed not published in spite of being printed and distributed to thousands of "bishops" around the world-- in the LDS, such persons are not ordained but just members of the church. I don't know what happened to that case, I think ULM may have settled. Like the DeCSS cases, the judge produced a ruling that banned hyperlinks to all sites including to Australia (and got the content removed from the anti-CoS site there), in spite of the fact that The Salt Lake Tribune and The New York Times had published the same links. However, the case was different from DeCSS in that the LDS arm claimed copyright of the work and infringement; there was no question of trafficking or the DMCA. As far as copyright claims on works that are out of print or otherwise not available (similar in one sense to copyright on unpublished works) it was interesting to me to see the reference in the Basic Books v Kinko's case from Judge Constance Baker Motley, where she indicated that the damage might even be MORE for infringing on an out-of-print work: 'Additionally, "reference to a work's availability is appropriate." Wright v. Warner Books, Inc., 748 F. Supp. at 112. Therefore, longer portions copied from an out-of-print book may be fair use because the book is no longer available. (This has been thought to be true because, presumably, there is little market effect produced by the copying. However, plaintiffs in this case convincingly argue that damage to out-of-print works may in fact be greater since permissions fees may be the only income for authors and copyright owners.).' http://www.bc.edu/bc_org/avp/cas/comm/free_speech/basicbooks.html To me, this is a gross distortion of copyright law--copyright was intended to protect authors so they could maintain works IN print, not to encourage judges to make some sort of economic balance between publishers and the public--that balance was already struck in the Copyright Clause. Judge Baker makes further errors in ruling out copyright misuse as a defense in this case--we need to reference it because it was in SDNY and not appealed. As a further note on the "scarcity" theory of copyright, I just got a call from a bookseller friend. She just bought a small used children's book for a few bucks and is selling it for $195. The same book is listed online from another bookseller for $695. She asked me to check if the book was still under copyright, because she thought it might be free to be republished online or as print-on-demand--the original book has been out of print for some time. I checked and found that it will still be under copyright for another 50 years, maybe in time for today's children to afford to buy it. Note that the author gets none of the $695. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 20:12:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10567 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:12:13 -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 UAA10550 for ; Thu, 14 Sep 2000 20:12:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA14343 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 20:14:55 -0400 Date: Thu, 14 Sep 2000 20:14:50 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Message-ID: <20000914201450.C14194@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from cpt@gryphon.auspice.net on Thu, Sep 14, 2000 at 01:09:57PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 01:09:57PM -0400, Joshua Stratton wrote: > The reasoning behind copyright on unpublished works is _probably_ to > ensure that an unfinished (and not yet published work, like an MS or work > print of a film) can't be copied and distributed freely prior to the > actual publication. Of course, software is so commonly distributed > half-baked these days one wonders if it ever counts as being published by > that standard. As an extension of those remarks, Judge Baker in Basic Books v Kinko's ruled in SDNY that registration of copyright even LONG AFTER filing an infringement lawsuit does not void the infringement claim. So it's rather like the patent trick: apply for a bunch of patents and never develop them, then when somebody else does, sue them and collect more money than if you had developed it yourself. Copyright and patent law should be carefully delineated to exclude such noxious practices. CSS is an example of "pretextual" technology to seek legal protection in just such a way: as long as one work "protected" by the TPM is under copyright, all such works are, forever. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 20:14:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10673 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:14:26 -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 UAA10670 for ; Thu, 14 Sep 2000 20:14:26 -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 UAA25840 for ; Thu, 14 Sep 2000 20:15:32 -0400 (EDT) Message-ID: <39C16A24.EE4BF13A@mediaone.net> Date: Thu, 14 Sep 2000 20:15:32 -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] CITY OF LADUE v. GILLEO References: <20000914202351.2418.qmail@web514.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: > > Here's an interesting unanimous Supreme Court case. Here the Court > discussed the framework for a law impacting speech that has exceptions. > > The exceptions can make the law unconstitutional if they "restricts too > little speech because its exemptions discriminate on the basis of ... > messages". However, under the ... content discrimination rationale, the > [government] might theoretically remove the defects in its ordinance by > simply repealing all of the exemptions. If, however, the ordinance is > also vulnerable because it prohibits too much speech, that solution > would not save it. > > CITY OF LADUE v. GILLEO > No. 92-1856 (Sup. Ct. 1994) > http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/us/000/u10373.html I liked: "Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression. Thus, we have held invalid ordinances that completely banned the distribution of pamphlets within the municipality, Lovell v. Griffin, 303 U.S. 444, 451 -452 (1938); handbills on the public streets, Jamison v. Texas, 318 U.S. 413, 416 (1943); the door-to-door distribution of literature, Martin v. Struthers, 319 U.S. 141, 145 -149 (1943); Schneider v. State, 308 U.S. 147, 164 -165 (1939), and live entertainment, Schad v. Mount Ephraim, 452 U.S. 61, 75 -76 (1981). See also Frisby v. Schultz, 487 U.S. 474, 486 (1988) (picketing focused upon individual residence is "fundamentally different from more generally directed means of communication that may not be completely banned in residential areas"). Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent - by eliminating a common means of speaking, such measures can suppress too much speech. 13 [ CITY OF LADUE v. GILLEO, ___ U.S. ___ (1994) , 13]" A common means of speaking, such as multi-media collages? I think I was first taught to cut pictures out of a magazine in 1st grade. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 20:21:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10888 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:21:00 -0400 Received: from web2002.mail.yahoo.com (web2002.mail.yahoo.com [128.11.68.202]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA10885 for ; Thu, 14 Sep 2000 20:20:59 -0400 Received: (qmail 24201 invoked by uid 60001); 15 Sep 2000 00:22:07 -0000 Message-ID: <20000915002207.24200.qmail@web2002.mail.yahoo.com> Received: from [204.180.3.67] by web2002.mail.yahoo.com; Thu, 14 Sep 2000 17:22:07 PDT Date: Thu, 14 Sep 2000 17:22:07 -0700 (PDT) From: chris koontz 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 (btw sorry for not replying directly to a message I just joined the list.. I've been following it though the archives till now)... OpenCSS shouln't be viewed as a "circumvention device or a component of one".. rather as a means to allow people to encrypt thier movies in such a way that they will be playable on a "CSS compliant" dvd player without having to pay the DVDCCA to do so. As someone who is intrested in distributing DVDs at some future time this seems like a nice idea.. If people aren't alowed to utilze protocols that they reverse engineer then the Samba team is in a LOAD of trouble.. If anyone is seriously working on an OpenCSS here are some ideas: a> Market OpenCSS as means for people creating DVDs to sell thier DVDs for CSS compliant players without having to go through DVDCCA b> Try to convice 2600 to distribute their "Freedom Downtime" in OpenCSS format Here is an opensource tool you can use to create a DLT "master" for your DVDs that is in the format desired by DVD printing houses: http://www.yggdrasil.com/Projects/dvdtape/ ===== ---------------ckoontz@yahoo.com------------------------- The above text is a natural product. Slight variations in spelling and grammar enhance its individual character & beauty and in no way are to be considered flaws or defects. ---------------------------------------------------------- __________________________________________________ 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 Sep 14 20:22:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10945 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:22:05 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA10917 for ; Thu, 14 Sep 2000 20:21:48 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA14413 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 20:24:41 -0400 Date: Thu, 14 Sep 2000 20:24:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000914202436.D14194@eldritchpress.org> References: <20000914185650.18810.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jeme@brelin.net on Thu, Sep 14, 2000 at 02:25:09PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 02:25:09PM -0700, Jeme A Brelin wrote: >... > The fact is that copyright only prevents other people from achieving > financial or commercial gain from reproduction of the work > copyrighted. I don't want to disagree with everything you say here, but surely you don't mean that this is the ONLY reason for copyright. For example, the author might simply seek fame and thereby attach her name to the document permanently. I think copyright under the U.S. constitution grants two "exclusive rights," and only them: to publish and to vend. We have earlier here discussed the history of copyright online from L. Ray Patterson that makes that point. The rights can be distinguished: one might publish without vending, as for example most scientific works today, or indeed most of current web content. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 20:28:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11225 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:28:47 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA11206 for ; Thu, 14 Sep 2000 20:28:26 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA14434 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 20:31:20 -0400 Date: Thu, 14 Sep 2000 20:31:10 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims Message-ID: <20000914203110.E14194@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, Sep 14, 2000 at 07:04:57PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 07:04:57PM -0400, Harold Eaton wrote: > Ugh. > > I wrote: > >...the Sony Act is unconstitutional. The DMCA's grant of > > Typo? Mental substitution? You be the judge! > > I meant to say Sonny Act as in Sonny Bono Copyright Extension > Act. Wasn't it Sonny and Cher Act ;-) I think her costumes were unconstitutional, don't you? Does Rep. Mary Bono get the royalties for the extra 20 years of term on Sonny's songs, and if so is that a conflict of interest? Seriously, thanks for the nit about "rights". I think Patterson specifies two, "to publish and to vend." And I agree that "access control" is a subversive right that is bound to explode in the hands of publishers. (Even publishers ought to look suspiciously at it, as for example Microsoft in the Real v Streambox case.) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 20:54:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11915 for dvd-discuss-outgoing; Thu, 14 Sep 2000 20:54:22 -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 UAA11912 for ; Thu, 14 Sep 2000 20:54:21 -0400 Message-ID: <20000915005459.14109.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 14 Sep 2000 17:54:59 PDT Date: Thu, 14 Sep 2000 17:54:59 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Outline for Appellate Amicus Version 3 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Another legitimate purpose for building a non-licensed player is to > save money, as in: That's a pretty good point. The legitimate purpose is competition in the player market. - Competition for player based on price - Competition based on development model > > B) Defendants had legitimate purposes > > 1) Legitimate purposes for building a non-licensed player: > > a) Bypassing region coding, sole purpose is restraint of > > trade > > b) Bypassing use controls, e.g., no hi-res digital output > > (HDTV) > > c) To make a player from scratch > (maybe this should be the first mentioned) ... to avoid the restrictive terms of the DVD-CCA licence. > Maybe add something like "quest for knowledge" as a legitimate > purpose. > > Excellent outline. __________________________________________________ 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 Sep 14 21:02:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12196 for dvd-discuss-outgoing; Thu, 14 Sep 2000 21:02:37 -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 VAA12193 for ; Thu, 14 Sep 2000 21:02:26 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA14558 for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 21:05:19 -0400 Date: Thu, 14 Sep 2000 21:05:14 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] more of the judiciary commitee report Message-ID: <20000914210514.G14194@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jerwin@osf1.gmu.edu on Wed, Sep 13, 2000 at 10:38:35PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here is what I think after reading just the first part of these pages of the report. The committee is explaining why it is passing an overbroad bill. It admits that the definition of terms for such things as "technological measure" is completely lacking. It wishes to say that it considered that objection and still passes the bill, because any clear definition of terms would possibly prevent future commercial products, especially in the areas of future "technological measures." (ominous, huh?--what's next, robotic torture?) Any reference to examination of how to protect fair use or how open source programmers are supposed to operate when their "products" are not "commercial" is deliberately excluded from this report. I see this as a frank confession that the Congress failed to exercise control over the bill to make sure it was in accord with the Constitutional grant of authority to Congress to legislate in this area. It completely privatizes the public domain right that is the basis for copyright in the Copyright Clause. It passively concedes perpetual copyright and patent and monopoly rights to corporations, in spite of the restriction in the Copyright Clause to Authors and Inventors. It apparently assumes that some technological magic is going to preserve those rights to those who use such things as CSS, and never envisages that users have any rights at all, nor that "the progress of science and useful arts" makes a bit of difference in this case. This is the explanation for "limited commercially significant purpose or use" in the definition. The committee thought it was passing a pork bill to aid the economy, and was engaged in an economic balancing act between commercial companies; it neglected to consider it was passing a Copyright bill where the balance was already struck in the Constitution. I'm not depressed--this text is a smoking bullet. On Wed, Sep 13, 2000 at 10:38:35PM -0400, Jeremy Erwin wrote: > > > I really feel depressed. Anyway, here are two more ocred, and (partially) > edited pages (11-12). Read them, and you'll understand.. > > The Committee on the Judiciary, which possesses primary juris- > diction over this legislation, considered the argument that the lack > of a definition of ''technological measure'' leaves manufacturers in > the dark as to the range of protective technologies to which their > prnducts must respond. The Committee concluded that any such > concern is unfounded. No legltlmate manufacturer of consumer > electronics devices or computer equipment could reasonably claim > to be left in doubt about the course of action to be avoided, simply > because the phrase ''technological measure'' is not itself defined > in > the bill. The only obligation imposed on manufacturers by this leg- > islation is a purely negative one: to refrain from affirmatively de- > signing a product or a component primar_l_ for the purpose of cir- > cumventing a protective technology that effectively controls unau- > thorized access to or uses of a copyrighted work. > Any effort to read into this bill what is not there-a statutory > definition of ''technological measure''_r to define in terms of par- > ticular technDlogies what constitutes an ''effective'' measure, > could > inadvertently deprive legal protection to some of the copy or access > control technologies that are or will be in widespread use for the > protection of both digital and analog formats. Perhaps more impor- > tantly, this approach runs a substantial risk of discouraging inno- > vation in the development of protective technologies. For instance, > today the standard form of encryption of digital materials involves > scrambling its contents so that they are unintelligible unless proc- > essed with a key supplied by the copyright owner or its agent. > However, in a field that changes and advances as rapidly as > encryption research, it would be short-sighted to write this defini- > tion into a statute as the exclusive technological means protected > by this bill. > If only those measures that are in use or on the ''drawing board'' > today are efectively protected against circumvention, the innova- > tive new methods that are certain to be developed as a result of > this legislation may fall outside the scope of any defnition Con- > gress can write today. It would then not be a violation to cir- > cumvent these new methods of protection, or even to go into the > business of making devices or providing services for the purpose of > circumventing tt_em, even though the new methnds are effective, in > the ordinary course of their operation, in controlling access to or > the exercise of exclusive rights with respect to a work, and even > if > they accomplistl these goals more efficiently and effectively than > the measures that are in place or under development today . As a > result, property owners would not be protected and there would be > no market for such measures to protect copyright. The flexible and > pragmatic approach of this legislation avoids this scenario by mak- > ing it clear that if a technology works to control access or the > exer- > cise of exclusive rights-in other words, if it meets the definitions > of effectiveness contained in subsections 1201(a)(3)(B) or > 1201(b)(2)(B)-no matter how it does so, the prnhibitions of the > statute are applicable. > Similarly, the statements in the Commerce Committee report > that attempt to read out of the ambit of effective technological > measures those technologies that affect the appearance of the dis- > play or performance of the works protected find no support in ei- > ther the text of the bill or in the authoritative legislative history > (12) > of these provisions prepared by the Judiciary Committee. The defi- > nitions contained in sections 1201(a)(3)(B) and 1201(b)(2)(B) re- > quire no fruther embellishment. The Statements contalned in the > Commerce committee report are problematic because they could be > read to suggest that electronic equipment manufacturers should > feel free to circumvent technological protections if they believe > their > equipment would function better without them in displaying or per- > forming works. > For example, some forms of digital watermarking superimpose > a faint image on a copyrighted work to protect it from unauthorized > copying. If there were a playablllty exception to the anti- cir- > > cumvention provisions of this bill, as these statements in correctly > > imply, then devices or srvices specifically designed for the purpose > of removing such watermarks could be immunized under the pre- > text that they improve image resolution. Such a result would un- > dermine the purpose of this legislation. > While the best approach is for copyrright owners and equipment > manufacturers to cooperate in the development, of measures that > can maximize protection while minimizing impact, it is not the In- > tent of this legislation that manufacturers should have the author- > ity to determine unilaterally which protective technologies copy- > rlght owners may employ_ More importantly, there is nothing in > the bill, nor in the authoritative legislative history, which > supports > the assertion that circumvention of an otherwise effective techno- > logical measure is acceptahle if done in the name of ''playability.'' > SlnCe the text of the legislation relatlng to this has not been > amended to establish this principle, any effort to read such a prin- > clple into the words the sponsors wrote, and that both the Judici > ary committee and the Commerce Committee approved, should be > dismissed. > Swbsection (b) applies when a person has obtained authorized ac- > cess to a copy or a phonorecord of a work, but the copyright owner > has put in place technological measures that effectively protect his > or her rights under Title 17 to control or limit the nature of the > use of the copyrighted work. > Paragraph (I). parallellng subsection (a)(2), abOve, paragraph (1) > seeks to provide meanlngful protection and enforcement of copy- > right owners use of technological measures to protect their rights > Under Tltle 17 by prohibiting the act of maklng or selllng the tech- > nological means to overcome these protections and facilitate copy- > right infringement. Paragraph ( 1) prohibits manufacturing, import- > ing, offering to the public, providing, or Otherwise trafFicking in > cer > tain technologies, products, services, devices, components, or parts > thereof that can be used to circumvent a technological measure _ > that effectively protects a right of a copyright owner under Title 17 > > In a work Or portion thereof. Again, for a technology, product, ser- > > ice, device component, or part thereof to be prohibited under this > subsection, one of three conditions must be met. It must. > _ > (1) be primarily designed or produced for the purpose of cir- > cumventing; > (2) have only limited commercially significant purpose or use > other than to circumvent; or > (3) be marketed by the person who manufactures it, imports > it, offers it to the public, provides it, or otherwise traffics in > it > > Continues From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 21:04:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12266 for dvd-discuss-outgoing; Thu, 14 Sep 2000 21:04:05 -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 VAA12263 for ; Thu, 14 Sep 2000 21:04:04 -0400 Received: from ppp.anonymizer.com (c03-139.015.popsite.net [64.24.74.139]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA26927 for ; Thu, 14 Sep 2000 18:07:04 -0700 (PDT) Message-Id: <4.3.2.7.2.20000914130716.00aa4e00@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 14 Sep 2000 18:05:05 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Partial Outline for 2nd Circuit Amicus Brief In-Reply-To: References: <39BF8E1A.561C087A@travel-net.com> <20000912195716.17601.qmail@web515.mail.yahoo.com> <4.3.2.7.2.20000912170459.00aa3f00@cyberpass.net> <39BF8E1A.561C087A@travel-net.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 VAA12264 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 01:30 PM 9/13/2000 -0400, Arnold G. Reinhold wrote: >At 10:24 AM -0400 9/13/2000, Dan Steinberg wrote: >>"Arnold G. Reinhold" wrote: >> >>>At 5:18 PM -0700 9/12/2000, James S. Tyre wrote: >>> >> > >>> >>> If I understand civil procedure correctly, we can't introduce new >>> >>> evidence into the record. >>> > >>> >Correct. >> >> > The Amicus brief http://dl.napster.com/amicus_law.pdf submitted to >>>the 9th Circuit by a group of law professors in support of the >>>Napster appeal has an interesting footnote (#2) on page 4. It says >>>"Amici hereby respectfully request that the court take notice of the >>>publicly available documents cited herein. ..." and goes on to cite a >>>fairly recent case (March 2000) in support of this request. >>> >>>INAL, but that seems to suggest that we could cite published papers >> > and articles that bolster our positions (as the law professors do). > >... > >>Perhaps I'm missing something but I dont see this as out of the >>ordinary. There >>is certainly nothing wrong with cites to support points of law. That's >>done all >>the time and not considered new evidence. And I dont believe new facts >>in the >>case are being introduced unless the cited case is somehow separate >>litigation >>between the parties (and yes virginia there are rules for that but we >>wont get >>into it today unless James feels like it). >> >>The point is: if it could be assumed that all possible arguments had >>raised in >>round one, there would be no need to clog the court system with this thing we >>call appeals process. we just cant introduce (in general) new evidence. > >But the law professors in the brief I cite seem to be doing just that. >They have a long discussion of peer-to-peer file sharing and how important >it is as a new Internet technology, how it's replacing search engines >which aren't good enough, and so on, all supported by academic papers and >newspaper articles. I don't know what constitutes the Napster original >trail record (there was no evidentiary hearing -- this is an appeal of a >preliminary injunction), but this stuff appears to be new information, not >just "cites to support points of law." Footnote 2 suggests it is >appropriate for the appeals court "to look at common usage and >understanding, taking judicial notice of such material as may aid [it.]" > >If we follow the law professors' model, we could point to published >articles (there are tons of them) about the importance of Linux and the >open source movement, for example. This is going to be long-winded, and after all the hot air, no bright lines will be drawn - we are what we are, and IAAL. ;-) But hopefully this will result in some sense of how to reconcile what Arnold refers to with what I was saying. First, it is worth noting that the principal author of the napster law prof amicus is Jessica Litman. One of many reasons why this is worth noting is that I know Jessica, I've worked with her, I know her style. She is (appropriately) aggressive, more so than most. But one of the reasons why she can be more aggressive than most, and get away with it (some of the time) is that she's earned the "right". She is one of the best of the best, incredibly well-respected, and because of that, certain people, including certain judges, will listen to her more than they would listen to essentially the same message from a no-name. In pure theory, a court should listen to just what is being said, not who is saying it, but we don't live in a world of pure theory. Since Jessica has the reputational capital to do what many cannot do, she's playing on that capital, which is fine, but we don't have that capital. If we go too far, it more likely to adversely affect the good arguments we make than the potential adverse affect on her arguments if she went too far. Second, note that Jessica drops the footnote specifically in reference to section IIIA of the brief, which speaks of the development of and potential significance of peer to peer file sharing technologies such as napster, a subject on which necessarily there is not yet any great body of law or evidence. In that regard, it is appropriate for an amicus to discuss how a decision in one case may affect other cases, scenarios, etc., and certainly that can be done here, indeed, one of the best purposes of an amicus is to show the effect on scenarios not precisely before the court. But note that, as soon as Jessica finishes IIIA, her argument through the rest of the brief reverts to more traditional forms of argument. So with that, let's look at her note 2: "2 Amici hereby respectfully request that the Court take judicial notice of the publicly available documents referenced herein. Fed. R. Evid. 201(b)(c); Mendler v. Winterland Prod. Ltd. (9 th Cir. Mar. 14, 2000. No. 98­16061) 2000 Daily Journal DAR 2742, 2743. 2000 Recorder CD0S 2007 (``appropriate [for the Court] to look at common usage and understanding, taking judicial notice of such material as may aid [it]'')." I've said before that an appeal is limited to evidence in the record or improperly excluded from the record. But not all evidence comes in from testimony of witnesses and so forth. Rather, under certain circumstances, the court can be asked to, and either may or must take "judicial notice" of certain facts. Jessica's first cite is to FRE 201, which is as follows: "Rule 201. Judicial Notice of Adjudicative Facts (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When discretionary. A court may take judicial notice, whether requested or not. (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed." So what are the kinds of things of which a Court can take judicial notice? Many, but good example are if, in the context of a case, it is important to know exactly what time high tide was on a given day; or that this year was a leap year, so that 30 days after 2/8/2000 was 3/9, not 3/10. Now, FRE 201 is a rule which applies to trial courts, not appellate courts. Where Jessica got aggressive was in trying to tie rule 201 with Judge Kozinski's decision in Mendler. There, Judge K did rely on "evidence" introduced at the appellate level, but in a very specific circumstance. The issue was what constituted a "photograph" for the purpose of the license in that case; the contract was ambiguous; a rule of contract construction is that if (and only if) a contract is ambiguous, one can look to common usage of terms to find their meaning; the trial court did not take evidence on common meaning; and since the terms of a contract are construed _de novo_ by an appellate court, the appellate court could look for itself at the common meaning of the term, rather than sending it back to the trial court to find the meaning. That's what Judge K did, and he did it with the full participation of the parties, who were requested to do so. As Judge K stated: "[1][2] Contract interpretation is a question of law we review de novo. See Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481, 484 (9th Cir.1998). While we are wont to defer when a district court relies on extrinsic evidence in interpreting an ambiguous contract, see L.K. Comstock & Co. v. United Eng'rs & Constructors Inc., 880 F.2d 219, 221 (9th Cir.1989), the district court here made no findings of fact with regard to the copyright claim. We know neither how it interpreted the contract nor on what extrinsic evidence, if any, it relied in concluding that the T-shirt fell "within the scope of the license agreements." Faced with a naked conclusion of law, we have nothing to which to defer. "Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent, about the contract's meaning. Though they dispute what they meant by "illustrations," the parties agree that the contract did not authorize Winterland to use photographic reproductions of Mendler's work. Thus, in order to affirm the district court's ruling, we must conclude that the image on the T-shirt is not a photograph. [...] "Winterland argues that these changes have transformed the image on the T-shirt from a photograph into an illustration based on a photograph. The dissent agrees, asserting that while the T-shirt image is "obviously based on the photograph, it is not the photograph." Infra, at 2040 (Rymer, J., dissenting). The only reason the dissent gives for this conclusion is that "Winterland's manipulation of the photograph was significant." Id. at 2940. But what does "significant" mean? The dissent leaves unexplained why the changes made are such as to destroy the original image's photographic quality. If we are to give our judgment content beyond "I know it when I see it," we must attempt to articulate what kinds of changes are "significant" enough to render an image non-photographic. The contract itself does not address this issue, and neither party argues that the concept "photographic" had any idiosyncratic meaning in the context of their business relationship. It is therefore appropriate to look to common usage and understanding, taking judicial notice of such materials as may aid us. See E. Allan Farnsworth, Contracts § 7.11 (1990) ("When interpreting contract language, courts start with the assumption that the parties have used the language in the way that reasonable persons ordinarily do."). The parties have participated in this inquiry, providing supplemental briefing that addresses such topics as the history of photography and the nature of the technology utilized here." [On the other hand, I'll bet my last dollar that the reference to the snowboarder photograph (not quoted here) was supplied by Judge K himself, not by the parties, he does like to interject his personal interests into his writings. In fact, I believe I recall seeing that photograph in his chambers. ;-)] In a nutshell, then, what Judge K did was standard judicial fare, though, as always, he did it in his own inimitable style. In contrast, Jessica bootstrapped a trial court rule into a rare case where an appellate court can notice new facts in order to make her point about new technologies. I haven't asked her about it, but my best guess is that it was the only way she could see to make her point which at least passes the red face test; a much different proposition from saying that it is a customarily acceptable way to make a point in an appellate court, particularly by an amicus who was not requested by the court to make it. As I said, it's aggressive, and she and her co-signers likely can get away with it, at least in terms of it not hurting the rest of their points, but not commended for most. >>p.s. if anyone has a Bluebook rule for citation of pokémon cases I'll eat >>it!!! Sadly, being the old fart which I am, I know nothing of citing pokemon. -------------------------------------------------------------------- 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 Sep 14 21:06:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12335 for dvd-discuss-outgoing; Thu, 14 Sep 2000 21:06:00 -0400 Received: from hotmail.com (f22.law9.hotmail.com [64.4.9.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12332 for ; Thu, 14 Sep 2000 21:06:00 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Thu, 14 Sep 2000 18:06:37 -0700 Received: from 38.30.237.6 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 15 Sep 2000 01:06:37 GMT X-Originating-IP: [38.30.237.6] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Regulating violence in the media Date: Thu, 14 Sep 2000 21:06:37 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 15 Sep 2000 01:06:37.0779 (UTC) FILETIME=[32DD6A30:01C01EB1] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael.A.Rolenz wrote: >Having copyright only held by people won't work...Intellectual >property can be bought and sold. Corporations are recognized as >legal entities with some rights. Therefore corporattions can buy >it and sell it (under the 14 amendment). BUT you do have a point >that the lifetime of a corporation is longer than the lifetime >... I think that part of the problem stems from the constant misnomer of "intellectual property". It isn't. One (utopian) idea that could work towards a solution would be that the exclusive right granted to an author could be sold to others only on a non-exclusive basis - i.e. in doing so the author would always continue to have the exclusive right too, and be able to sell it as many times as desired. To be sure, this will spoil the monopoly of the media companies, and make the price they're willing to pay less since they couldn't get exclusivity, but plenty of businesses would still eagerly license the non-exclusive right to worthwhile works. It happens with patents and copyrights all the time right now. _________________________________________________________________________ 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 Thu Sep 14 21:21:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12801 for dvd-discuss-outgoing; Thu, 14 Sep 2000 21:21:12 -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 VAA12798 for ; Thu, 14 Sep 2000 21:21:12 -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 VAA04655 for ; Thu, 14 Sep 2000 21:22:17 -0400 (EDT) Message-ID: <39C179BB.27262A9B@mediaone.net> Date: Thu, 14 Sep 2000 21:22:03 -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] What is missing? 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 Michael.A.Rolenz@aero.org wrote: > > Not wrong...copyright statutes have nothing to do with the growth of > monopolies...but the argument is not expansive enough....you are quite > correct. the DMCA by itself is NOT the only problem here. We have large > publishing monopolies. We have large copyright durations (100 yrs). We have > a lot of people who view the changes in media and formats as an opportunity > to make up for business models that were thrown out decades ago. The > incidious nature of having large monopolies regulating information is that > they perform the form of censorship that governments cannot do (or at least > ours generally does not) > Long copyright durations which can be permanently transferred to corporations created the publishing monopolies who are our opposition in this case. There are several ways to rectify the problem. Declare the entire copyright code unconstitutional and tell congress to start over. Find that under the law large corporations do not have standing in court to protect their copyright (did I word this right? Like copyright misuse, but based purely upon their being to large and powerfull). Say that the original copyright duration was limited and anything longer is too long to be reasonable. Declare corporations to be non-persons with only statuatory rights. Declare corporations to be creatures of government which are totally bound by our legal restrictions upon the power of government. I'm interested in having a world with lots of small companies and no large companies. I'm not sure which corrective remedy best achieves this objective without causing a complete collapse. At the moment. The best I seem to be able to work towards is maintenance of our free speech rights. If we can maintain that then the Net itself will to some extent tend to correct the problem. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 21:31:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13100 for dvd-discuss-outgoing; Thu, 14 Sep 2000 21:31:58 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA13097 for ; Thu, 14 Sep 2000 21:31:57 -0400 Received: from ppp.anonymizer.com (c03-139.015.popsite.net [64.24.74.139]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA01684 for ; Thu, 14 Sep 2000 18:34:59 -0700 (PDT) Message-Id: <4.3.2.7.2.20000914182141.04d46700@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 14 Sep 2000 18:32:28 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Amicus brief general question In-Reply-To: <20000913100830.A2598@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:08 AM 9/13/2000 -0500, Eric Seppanen wrote: >A general question on the proposed amicus brief: > >Does the range of arguments in the brief have to be a subset of the >arguments made by the defense attorneys? No, so long as the basis for the argument exists in the record. > I mean, if Garbus/FGKS decide, >for example, not to make a "misuse of copyright" argument, does that mean >that the same argument would be improper or ignored in a dvd-discuss >brief? No, but with all the caveats I've added in the past about length, scattering of issues, etc. (I see Bryan has done a third outline, but I'm behind, getting caught up, haven't looked at it yet.) One legitimate use of an amicus is to take a position, which is supportable, but which is more extreme than taken by the parties themselves. This shows the court, in effect, that the position of the parties is downright reasonable in comparison to how far it could go if it had to. (Most courts prefer not to be on the bleeding edge.) Somewhere around '95 or so, I did exactly that in a case before the California Supreme Court. I deliberately took a position which was more extreme than that of the party, not because I expected the Court to adopt it, but to show how eminently reasonable the defense argument was. When the Court decided the case (6-1 in favor of defendants), the court alluded to my argument, it got the point. And about three years later, in another case, when the same court was forced to deal with the legal position I had taken, it adopted it wholesale. ;-) -------------------------------------------------------------------- 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 Sep 14 21:56:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA13742 for dvd-discuss-outgoing; Thu, 14 Sep 2000 21:56:13 -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 VAA13739 for ; Thu, 14 Sep 2000 21:56:12 -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 VAA02993 for ; Thu, 14 Sep 2000 21:57:19 -0400 (EDT) Message-ID: <39C181EC.426F51BB@mediaone.net> Date: Thu, 14 Sep 2000 21:57:00 -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] Outline for Appellate Amicus Version 3 References: <20000914220817.18763.qmail@web514.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: > > OK, Here's Version 3. This one doesn't have any placeholders. > > I added a short "Interest of the Amici" section. I copied Robert's > outline into the section IV "Access with Authority" 98% as-is. (I added > one bullet and made very minor formating changes). > > OK, comment away, but if you are proposing changes, try to be specific. > ______________________ > > I) Interest of the Amici > A) Who we are: programmers, scientists, lawyers, students, etc... > B) Common bond: individual liberty in the new media > 1) Internet & Computers empower the public > 2) Voluntary contribution to intellectual commons > 3) Passion for the public benefit through the progress of science > 4) Respect for the proper balance of intellectual property rights Proper balance of copyright. I don't know that there is such a thing as intellectual property, and I don't want to conceed any right to it randomly. > C) Openlaw concept: use open source methods for legal argument > 1) Open to the public > 2) Brought together by the internet > 3) Extensive use of Internet resources > > II) Kaplan's O'Brien Analysis is Hopelessly Flawed > A) O'Brien standard for intermediate scrutiny does not apply > 1) Computer speech not in scope of statue > a) 1201(c)(4) > b) 'Technology' not a smoke screen intended to include speech > 2) Prior Restraints forbidden > a) 1203(b)(1) vs Kaplan ellipses > b) Constitutional requirement > 3) Not "regulating the nonspeech element" in "course of conduct" > a) Functional capability only after installed on a machine > b) Conduct of distributing code is purely speech-conduct > c) Voluntary public sharing is part of open source's message > d) Kaplan ignored Fletcher's reasoning in Bernstein and took > refuted position of dissent w/o rebutting analysis > i) admixture of functionality does not diminish > protection > ii) source code not even arguably 'functional' > iii) intended for human understanding => not conduct > iv) extensive expert testimony on expresiveness of code > e) Compare Bery v. City of New York: Peddling Art > not "conduct", street marketing was part of the message > 4) Strict scrutiny is proper standard (Cite Bernstein) > B) O'Brien requires intermediate scrutiny, not "rubber stamp" > 1) Cite Horton v. Houston: may not just "rubber stamp" > 2) Review of O'Brien Standard > a) within the constitutional power of the Government > b) furthers an important or substantial government interest Government has no interest in propping up a publishing monopoly. > c) content neutral, unrelated to the suppression of > free expression > d) incidental restriction no greater than essential > to further interest significant -- pressing? -- interest. > 3) Foti v Menlo Pk, Ladue v Gilleo: content-based exceptions fail > 4) Cite US v. Playboy: speaker-based restrictions are > content-based > 5) Distinctions on kinds of speech & Equal Protection Clause. > Cite > Ladue v Gilleo, Carey v Brown, PD of Chicago v Mosley > 6) Compelled speech is content-based restriction Riley v NFB > 7) Review Overbreadth doctrine & "standing" > 8) Cite BOOS v. BARRY for viewpoint-neutral != content-neutral > 9) Review vagueness doctrine > a) Selective enforcement not allowed > b) Prior Restraint by permit not allowed > c) Cite Young v. Simi Valley to disallow 3rd party veto > 10) Distinguish Time, Manner, Place cases from symbolic > speech cases (Cite Reno v ACLU) Also supressing too much speech... > C) DMCA not "within constitutional power" of Congress > 1) Don't agree within the Copyright or Commerce Power > 2) Defer to others better positioned for details > D) Does not "further substantial governement interest" > 1) "Full Disclosure" best security approach. DMCA futhers > insecurity, not security. > 2) Congress shirked duty to show protecting weak systems will > inhibit piracy > E) Not content neutral, depends on examining content > 1) Code communicates a factual method > a) Source code provided for benefit of human readers > b) Object code, especially when combined with source code > has communication value to skilled readers Object code can be expressed in a way which has communication value to uninitiated readers through execution. (Not sure this is usefull here.) > c) Science of computer security depends on such communications Bug free code also depends upon this. ... -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 22:16:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA14303 for dvd-discuss-outgoing; Thu, 14 Sep 2000 22:16:35 -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 WAA14300 for ; Thu, 14 Sep 2000 22:16:34 -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 WAA08428 for ; Thu, 14 Sep 2000 22:17:41 -0400 (EDT) Message-ID: <39C186C3.1D028681@mediaone.net> Date: Thu, 14 Sep 2000 22:17:39 -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] Bernstein opinion on "conduct" References: <001a01c01ea2$ce28a7c0$0200a8c0@shannon> Content-Type: text/plain; charset=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 Dempsey wrote: > ... > > In the testimony and in the deCSS site where the algorythm takes various > forms, a language was 'invented', for which there exists no compiler, and > the decryption process was described in this language. In theory, a > compiler Could be created for this language, so the content is therefore > illegal. It's the ideas themselves now illegal to express, in source, > object, song, or tee-shirt, with increasing risk for doing so. And don't hand out copies in handbills on the street either. > "Not in my America." > > John -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 22:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA14850 for dvd-discuss-outgoing; Thu, 14 Sep 2000 22:39:56 -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 WAA14847 for ; Thu, 14 Sep 2000 22:39:55 -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 WAA04489 for ; Thu, 14 Sep 2000 22:41:02 -0400 (EDT) Message-ID: <39C18C3F.CE1086CE@mediaone.net> Date: Thu, 14 Sep 2000 22:41:03 -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] Regulating violence in the media 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 Michael.A.Rolenz@aero.org wrote: > ... > > A comment: "Information wants to be free"...there is no information in just > about 99% of the films released by Hollywierd. > That's about the percentage I haven't watched. In the last 10 years, for every hour I've spent watching TV or movies I've spent well over 100 hours on Usenet or email lists. From a pragmatic viewpoint, if the entire mass media system collapsed the only thing I'd really notice about it is that people would no longer gush about dumb programs I've never seen. The relief would be enormous. People would start talking about real things for a change. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 22:50:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA15177 for dvd-discuss-outgoing; Thu, 14 Sep 2000 22:50:38 -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 WAA15174 for ; Thu, 14 Sep 2000 22:50:36 -0400 Message-ID: <20000915025115.24690.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Thu, 14 Sep 2000 19:51:15 PDT Date: Thu, 14 Sep 2000 19:51:15 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus brief general 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 --- "James S. Tyre" wrote: > No, but with all the caveats I've added in the past about length, > scattering of issues, etc. (I see Bryan has done a third outline, > but I'm behind, getting caught up, haven't looked at it yet.) I have finally found the rules governing the 2nd Circuit. Generally the Federal Rules of Appellate Procedure (FRAP) apply to all 13 circuits, and the individual circuits adopt supplementary local rules. The rules are exactly what James predicted they would be (half the length of a party's brief, filed within 7 days of brief of supported party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) FRAP 29 covers Brief of an Amicus Curiae http://www.nylj.com/rules/sct7.html#29 This refers to FRAP 32. 32(a) which covers the form of briefs: http://www.nylj.com/rules/sct7.html#32a The 2nd Circuit has local rules modifying FRAP 32: http://www.nylj.com/rules/sct7.html#lr32 The complete rules for the 2nd Circuit (FRAP + Local Rules) are here: http://www.nylj.com/rules/scindex.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 Sep 14 23:00:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15449 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:00:34 -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 XAA15446 for ; Thu, 14 Sep 2000 23:00:33 -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 XAA03709 for ; Thu, 14 Sep 2000 23:01:39 -0400 (EDT) Message-ID: <39C19113.B985ED06@mediaone.net> Date: Thu, 14 Sep 2000 23:01:39 -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] OpenCSS - A new open standard for content protection References: <20000915002207.24200.qmail@web2002.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 chris koontz wrote: > > (btw sorry for not replying directly to a message I > just joined the list.. I've been following it though > the archives till now)... > > OpenCSS shouln't be viewed as a "circumvention device > or a component of one".. rather as a means to allow > people to encrypt thier movies in such a way that they > will be playable on a "CSS compliant" dvd player > without having to pay the DVDCCA to do so. As someone > who is intrested in distributing DVDs at some future > time this seems like a nice idea.. If people aren't > alowed to utilze protocols that they reverse engineer > then the Samba team is in a LOAD of trouble.. > > If anyone is seriously working on an OpenCSS here are > some ideas: > a> Market OpenCSS as means for people creating DVDs to > sell thier DVDs for CSS compliant players without > having to go through DVDCCA > b> Try to convice 2600 to distribute their "Freedom > Downtime" in OpenCSS format If you're willing to do the work, I'm willing to give 100-1 odds they're willing to have it distributed. 2600 is not all that big an operation. Converting an MP3 to a CD so they could play descramble.mp3 on the radio is about all they can handle. > Here is an opensource tool you can use to create a DLT > "master" for your DVDs that is in the format desired > by DVD printing houses: > http://www.yggdrasil.com/Projects/dvdtape/ > > ===== > ---------------ckoontz@yahoo.com------------------------- > The above text is a natural product. Slight variations > in spelling and grammar enhance its individual character > & beauty and in no way are to be considered flaws or defects. > ---------------------------------------------------------- > -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 23:19:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA15993 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:19:41 -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 XAA15990 for ; Thu, 14 Sep 2000 23:19:40 -0400 Received: from Jana-Server (user-38ld3qc.dialup.mindspring.com [209.86.143.76]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id XAA19350 for ; Thu, 14 Sep 2000 23:20:48 -0400 (EDT) Message-ID: <39C195BA.A804F07C@mindspring.com> Date: Thu, 14 Sep 2000 23:21:30 -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] Outline for Appellate Amicus Version 3 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 > 4) Kaplan shows bias, misunderstanding with remarks regarding > "adherents of a movement" > And used some of his previously published works as negative character evidence. >From page 12 of the August 17th decision: "Not surprisingly, 2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, access other people’s e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores and Federal Express. One issue contains a guide to the federal criminal justice system for readers charged with computer hacking." FWIW, the September 2000 edition of Popular Mechanics magazine has an article named "How To Blow Up A Building" in it. The cover of the magazine has the title of the article in a big font along the top edge. mickeym From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 23:29:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16289 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:29:53 -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 XAA16280 for ; Thu, 14 Sep 2000 23:29:51 -0400 Received: from swbell.net ([64.216.209.152]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0W00LWVS26KH@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 22:22:55 -0500 (CDT) Date: Thu, 14 Sep 2000 22:13:36 -0500 From: Jolley Subject: Re: [dvd-discuss] Amicus brief general question To: dvd-discuss@eon.law.harvard.edu Message-id: <39C193E0.2BF78951@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: <4.3.2.7.2.20000914182141.04d46700@cyberpass.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "James S. Tyre" wrote: > > At 10:08 AM 9/13/2000 -0500, Eric Seppanen wrote: > >A general question on the proposed amicus brief: > > > > One legitimate use of an amicus is to take a position, which is > supportable, but which is more extreme than taken by the parties > themselves. This shows the court, in effect, that the position of the > parties is downright reasonable in comparison to how far it could go if it > had to. (Most courts prefer not to be on the bleeding edge.) > Dvd-discuss seems to have a large number of people interested in this case with different positions and concerns. Is there any rule that would prevent more than one amicus brief from the participants of dvd-discuss? As an example, I could see one amicus brief attacking the constitutional issues with the goal of finding DMCA unconstitutional. Another amicus concerned with the fallacies with Kaplan's analysis. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 23:35:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16501 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:35:36 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA16498 for ; Thu, 14 Sep 2000 23:35:35 -0400 Received: from ppp.anonymizer.com (c03-139.015.popsite.net [64.24.74.139]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA19932 for ; Thu, 14 Sep 2000 20:38:31 -0700 (PDT) Message-Id: <4.3.2.7.2.20000914202801.00a95430@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 14 Sep 2000 20:36:33 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Amicus brief general question In-Reply-To: <20000915025115.24690.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 07:51 PM 9/14/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > No, but with all the caveats I've added in the past about length, > > scattering of issues, etc. (I see Bryan has done a third outline, > > but I'm behind, getting caught up, haven't looked at it yet.) > >I have finally found the rules governing the 2nd Circuit. Generally the >Federal Rules of Appellate Procedure (FRAP) apply to all 13 circuits, >and the individual circuits adopt supplementary local rules. Yes, exactly, sorry if I was unclear on that. >The rules are exactly what James predicted they would be (half the >length of a party's brief, filed within 7 days of brief of supported >party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) No kidding on the "!". That's why I've been harping on the point. But do please call me Jim, "James" is what my birth cert. says, it's how I introduce myself in court, and for my mother, and there only when she's ticked at me. If, like you, I was in Texas, mebbe I'd be Jimmy Sam, but I'm not in Texas. ;-) >FRAP 29 covers Brief of an Amicus Curiae >http://www.nylj.com/rules/sct7.html#29 > >This refers to FRAP 32. 32(a) which covers the form of briefs: >http://www.nylj.com/rules/sct7.html#32a > >The 2nd Circuit has local rules modifying FRAP 32: >http://www.nylj.com/rules/sct7.html#lr32 Good, I'm glad you found the locals. Note that the 15 pp. must be 11 point Courier, which allows for considerably less words per page than something like a standard (for most courts) 12 point times family proportional. >The complete rules for the 2nd Circuit (FRAP + Local Rules) are here: >http://www.nylj.com/rules/scindex.html > >__________________________________________________ >Do You Yahoo!? >Yahoo! Mail - Free email you can access from anywhere! >http://mail.yahoo.com/ -------------------------------------------------------------------- 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 Sep 14 23:35:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16476 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:35:24 -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 XAA16473 for ; Thu, 14 Sep 2000 23:35:23 -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 XAA23566 for ; Thu, 14 Sep 2000 23:36:30 -0400 (EDT) Message-ID: <39C1993F.6A1FC946@mediaone.net> Date: Thu, 14 Sep 2000 23:36:31 -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] Regulating violence in the media 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: > > Michael.A.Rolenz wrote: > >Having copyright only held by people won't work...Intellectual > >property can be bought and sold. Corporations are recognized as > >legal entities with some rights. Therefore corporattions can buy > >it and sell it (under the 14 amendment). BUT you do have a point > >that the lifetime of a corporation is longer than the lifetime > >... > > I think that part of the problem stems from the constant misnomer > of "intellectual property". It isn't. One (utopian) idea that > could work towards a solution would be that the exclusive right > granted to an author could be sold to others only on a non-exclusive > basis - i.e. in doing so the author would always continue to have > the exclusive right too, and be able to sell it as many times as > desired. To be sure, this will spoil the monopoly of the media > companies, and make the price they're willing to pay less since they > couldn't get exclusivity, but plenty of businesses would still eagerly > license the non-exclusive right to worthwhile works. It happens with > patents and copyrights all the time right now. I like this. But what about work for hire? -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 23:48:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA16912 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:48:28 -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 XAA16909 for ; Thu, 14 Sep 2000 23:48:27 -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 XAA11075 for ; Thu, 14 Sep 2000 23:49:34 -0400 (EDT) Message-ID: <39C19C4F.D5FA92ED@mediaone.net> Date: Thu, 14 Sep 2000 23:49:35 -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] Amicus brief general question References: <4.3.2.7.2.20000914182141.04d46700@cyberpass.net> <39C193E0.2BF78951@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: > > "James S. Tyre" wrote: > > > > At 10:08 AM 9/13/2000 -0500, Eric Seppanen wrote: > > >A general question on the proposed amicus brief: > > > > > > > One legitimate use of an amicus is to take a position, which is > > supportable, but which is more extreme than taken by the parties > > themselves. This shows the court, in effect, that the position of the > > parties is downright reasonable in comparison to how far it could go if it > > had to. (Most courts prefer not to be on the bleeding edge.) > > > > Dvd-discuss seems to have a large number of people interested in > this case with different positions and concerns. Is there any rule > that would prevent more than one amicus brief from the participants > of dvd-discuss? As an example, I could see one amicus brief attacking > the constitutional issues with the goal of finding DMCA > unconstitutional. Another amicus concerned with the fallacies with > Kaplan's analysis. We could always divide up into separate lists, but there's a more practical problem. I might be able to compute the offset into a class of an enum bit field, but there's no way I could construct a brief able to pass the gauntlet of rules for the 2nd circuit. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 23:53:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA17094 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:53:55 -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 XAA17091 for ; Thu, 14 Sep 2000 23:53:54 -0400 Received: from swbell.net ([64.216.209.152]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0W00MX7TFUJO@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 22:52:42 -0500 (CDT) Date: Thu, 14 Sep 2000 22:43:23 -0500 From: Jolley Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu Message-id: <39C19ADB.55F36EDE@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: <20000914164952.C13837@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > > On Wed, Sep 13, 2000 at 04:54:02PM -0700, Michael.A.Rolenz@aero.org wrote: > >... > > So another question is How do works enter into the public domain? > > Previously there was a BOOK. There was sheetmusic. There were pictures. How > > do works with access control permitted by the DMCA enter into the public > > domain at the end of the copyright? The enactment of the DMCA seems to have > > created a MAJOR contradiction in copyright law. > > I agree. Works enter the public domain when the "limited times" > of copyright term expire. As Kaplan notes in a footnote, the > question of CSS protecting a public domain work was not raised > in this case and so he need not address it. However, there are > certainly already public domain works that are protected by > encryption and CSS-like access control. His finding raises a > major contradiction already, in that the public is being denied > access to works that belong to them; some form of "consent" is > required by some technology, when the law gives no right to > the publisher to require such consent. If publishers used a > different form of TPM to lock up works under copyright, than > the TPM they use for public domain works, then the case would be > different. But since they are using the same TPM, circumvention > for one means circumvention for all. I think it should be the > other way around. Basically, his ruling is contradictory and > unconstitutional at the same time. So, if there is a work that has passed into the public domain after its copyright term has expired and is on a DVD "protected" by CSS, the public can traffic in circumvention devices because we have the authority of one of the "new copyright owners", the public? Or, can we call CSS a circumvention device against one of "our" copyrighted works? Does CSS as a TPM expire as soon as one work protected by CSS passes into the public domain? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 14 23:58:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA17224 for dvd-discuss-outgoing; Thu, 14 Sep 2000 23:58:18 -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 XAA17221 for ; Thu, 14 Sep 2000 23:58:16 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id XAA11031 for ; Thu, 14 Sep 2000 23:58:54 -0400 Date: Thu, 14 Sep 2000 23:58:54 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? In-Reply-To: <39C19ADB.55F36EDE@swbell.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 And do you really expect that to happen? Ever? As long as there is a Disney, that criteria for DeCSS becoming legal will never be met. On Thu, 14 Sep 2000, Jolley wrote: > Eric Eldred wrote: > > > > On Wed, Sep 13, 2000 at 04:54:02PM -0700, Michael.A.Rolenz@aero.org wrote: > > >... > > > So another question is How do works enter into the public domain? > > > Previously there was a BOOK. There was sheetmusic. There were pictures. How > > > do works with access control permitted by the DMCA enter into the public > > > domain at the end of the copyright? The enactment of the DMCA seems to have > > > created a MAJOR contradiction in copyright law. > > > > I agree. Works enter the public domain when the "limited times" > > of copyright term expire. As Kaplan notes in a footnote, the > > question of CSS protecting a public domain work was not raised > > in this case and so he need not address it. However, there are > > certainly already public domain works that are protected by > > encryption and CSS-like access control. His finding raises a > > major contradiction already, in that the public is being denied > > access to works that belong to them; some form of "consent" is > > required by some technology, when the law gives no right to > > the publisher to require such consent. If publishers used a > > different form of TPM to lock up works under copyright, than > > the TPM they use for public domain works, then the case would be > > different. But since they are using the same TPM, circumvention > > for one means circumvention for all. I think it should be the > > other way around. Basically, his ruling is contradictory and > > unconstitutional at the same time. > > So, if there is a work that has passed into the public domain after > its copyright term has expired and is on a DVD "protected" by CSS, > the public can traffic in circumvention devices because we have > the authority of one of the "new copyright owners", the public? > Or, can we call CSS a circumvention device against one of "our" > copyrighted works? > > Does CSS as a TPM expire as soon as one work protected by CSS passes > into the public domain? > From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 00:05:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17519 for dvd-discuss-outgoing; Fri, 15 Sep 2000 00:05:17 -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 AAA17516 for ; Fri, 15 Sep 2000 00:05:15 -0400 Received: from ppp.anonymizer.com (c03-139.015.popsite.net [64.24.74.139]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA24620 for ; Thu, 14 Sep 2000 21:08:05 -0700 (PDT) Message-Id: <4.3.2.7.2.20000914205553.00aa8b10@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 14 Sep 2000 21:06:07 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Amicus brief general question In-Reply-To: <39C193E0.2BF78951@swbell.net> References: <4.3.2.7.2.20000914182141.04d46700@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:13 PM 9/14/2000 -0500, Jolley wrote: >"James S. Tyre" wrote: > > > > At 10:08 AM 9/13/2000 -0500, Eric Seppanen wrote: > > >A general question on the proposed amicus brief: > > > > > > > One legitimate use of an amicus is to take a position, which is > > supportable, but which is more extreme than taken by the parties > > themselves. This shows the court, in effect, that the position of the > > parties is downright reasonable in comparison to how far it could go if it > > had to. (Most courts prefer not to be on the bleeding edge.) > > > >Dvd-discuss seems to have a large number of people interested in >this case with different positions and concerns. Is there any rule >that would prevent more than one amicus brief from the participants >of dvd-discuss? As an example, I could see one amicus brief attacking >the constitutional issues with the goal of finding DMCA >unconstitutional. Another amicus concerned with the fallacies with >Kaplan's analysis. Remember that this list is under the auspices, more or less, of Openlaw at Berkman Center, and this brief, like the one in the trial court, will (presumably) be: BRIEF OF OPENLAW PARTICIPANTS AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS ERIC CORLEY, a/k/a "EMMANUEL GOLDSTEIN" AND 2600 ENTERPRISES (See http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0530-openlaw-amicus.html.) There can only be one brief on behalf of any particular group. If subgroups want to break off to cover different points, then they can do so; but under the governing rule, FRAP 29(a): (a) When Permitted. The United States or its officer or agency, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all ^^^^^^^^^^^^^^^^^^^^^^ parties have consented to its filing. I can't predict how the court will react to more than one amicus from those who inhabit this list, even if under different group names. But I would be concerned about the possibility that the court, if faced with too many, might accept none; or might accept them, but then promptly proceed to ignore them 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 Fri Sep 15 00:05:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA17512 for dvd-discuss-outgoing; Fri, 15 Sep 2000 00:05:10 -0400 Received: from web113.yahoomail.com (web113.yahoomail.com [205.180.60.84]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA17509 for ; Fri, 15 Sep 2000 00:05:08 -0400 Received: (qmail 9860 invoked by uid 60001); 15 Sep 2000 04:06:16 -0000 Message-ID: <20000915040616.9859.qmail@web113.yahoomail.com> Received: from [24.30.69.245] by web113.yahoomail.com; Thu, 14 Sep 2000 21:06:16 PDT Date: Thu, 14 Sep 2000 21:06:16 -0700 (PDT) From: Larry Blunk Subject: [dvd-discuss] FCC approves copy protection in digital cable set-top boxes To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 the FCC has given the go ahead for requiring copy-protection technology in digital cable set-top boxes. The annoucement can be found at http://www.fcc.gov/Bureaus/Cable/News_Releases/2000/nrcb0022.html It will require that box makers licence the proprietary and patented "DFast" technology from CableLabs. Specifications (minus information on DFast) can be found here: http://www.opencable.com/IS-POD-CP-INT03-000714.final.pdf The set-top boxes will be required to put Macrovision copy protection on analog outputs and "5C" DLTA protection on digital 1394 outputs if the content is designated as copy-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 Fri Sep 15 00:58:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18667 for dvd-discuss-outgoing; Fri, 15 Sep 2000 00:58:53 -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 AAA18664 for ; Fri, 15 Sep 2000 00:58:52 -0400 Message-ID: <20000915045931.5875.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Thu, 14 Sep 2000 21:59:31 PDT Date: Thu, 14 Sep 2000 21:59:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus brief general 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 --- "James S. Tyre" wrote: > >The rules are exactly what James predicted they would be (half the > >length of a party's brief, filed within 7 days of brief of supported > >party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) > > No kidding on the "!". That's why I've been harping on the point. I guess we have several options: A) Cut now from the outline B) Write, see what we like, and then cut C) Set page limits per outline section and write to spec D) Ask the judge for a page limit extention E) Seperate topics into different briefs (from different organizations) How crazy is it to consider asking for more pages? Kaplan, after all, was pretty long-winded at 89 pages and this is a case with fairly heavy-duty issues (free speech, the future of copyright, internet regulation). __________________________________________________ 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 Sep 15 01:01:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA18827 for dvd-discuss-outgoing; Fri, 15 Sep 2000 01:01:08 -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 BAA18824 for ; Fri, 15 Sep 2000 01:01:05 -0400 Received: from swbell.net ([64.216.209.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0W00FCTW3ZXA@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Thu, 14 Sep 2000 23:50:24 -0500 (CDT) Date: Thu, 14 Sep 2000 23:41:55 -0500 From: Jolley Subject: Re: [dvd-discuss] 1201(b)(1) Claims To: dvd-discuss@eon.law.harvard.edu Message-id: <39C1A893.EC12F39D@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: 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 "rights" of copyright holders under Berne Convention (and thus > >WIPO) are considerably different from the "exclusive rights" specified > >in the U.S. Constitution... > > > The constitution says "exclusive right", NOT "rights". > This was no mistake either! One of the amici in your > own case uses this as a forceful tool to illustrate that > the Sony Act is unconstitutional. The DMCA's grant of > an access control right may be enough to show the abuse > of congress in expanding the exclusive right (to vend) > to "authors" (or more sadly, to corporations that hire > authors). This should be the straw that breaks the > camel's back and allow the supreme court to set copyright > straight again. > > Not only grant of an access control but granting a right over someone elses respective writings! ...by securing for limited times to authors and inventors the exclusive right to _THEIR_ respective writings and discoveries; From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 01:23:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19268 for dvd-discuss-outgoing; Fri, 15 Sep 2000 01:23:17 -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 BAA19265 for ; Fri, 15 Sep 2000 01:23:15 -0400 Received: from ppp.anonymizer.com (c03-139.015.popsite.net [64.24.74.139]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA06003 for ; Thu, 14 Sep 2000 22:26:18 -0700 (PDT) Message-Id: <4.3.2.7.2.20000914220804.00a9b700@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 14 Sep 2000 22:24:21 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Amicus brief general question In-Reply-To: <20000915045931.5875.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 09:59 PM 9/14/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > > >The rules are exactly what James predicted they would be (half the > > >length of a party's brief, filed within 7 days of brief of supported > > >party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) > > > > No kidding on the "!". That's why I've been harping on the point. > >I guess we have several options: >A) Cut now from the outline >B) Write, see what we like, and then cut >C) Set page limits per outline section and write to spec Any? All? A lot of this depends on who the primary author will be, and with what the primary author feels most comfortable. Personally, I'm a B kind of guy, but that's because I don't work from outlines, I start with stream of consciousness, then hone, hone, hone. But I'm not going to be the primary author of this brief. However, because this is a group project, getting consensus, comments, etc. necessarily is slower than one person, one brief, my gut tells me that B is the worst of the three in this specific situation. >D) Ask the judge for a page limit extention See below. >E) Seperate topics into different briefs (from different organizations) See my response to Jolley. This really does concern me, though I can't know if the concern is justified. >How crazy is it to consider asking for more pages? Kaplan, after all, >was pretty long-winded at 89 pages and this is a case with fairly >heavy-duty issues (free speech, the future of copyright, internet regulation). Since Wendy is in the Second Circuit, she or others in her firm may be able to provide some guidance here, but the rule says that the application for leave to file an amicus must be accompanied by the proposed amicus. In other words, you don't ask in advance for permission to file a brief in excess of 15 pp. This is the kind of rule that courts are not duty-bound to follow, it may be that the 2d will entertain an advance application to file a longer brief. But I have no relevant knowledge of the 2d's practices here, and if they stick to the letter of the rule, this can't be done. -------------------------------------------------------------------- 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 Sep 15 01:31:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19554 for dvd-discuss-outgoing; Fri, 15 Sep 2000 01:31:26 -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 BAA19551 for ; Fri, 15 Sep 2000 01:31:24 -0400 Message-ID: <20000915053203.16960.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 14 Sep 2000 22:32:03 PDT Date: Thu, 14 Sep 2000 22:32:03 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > For LISP, and any other interpreted language, the > source code is exactly as functional as the "object > code," and the "object code" is exactly as readable > as the source code. They're the same thing. No. Interpreted languages have objected code created that isn't stored. LISP, perl, etc... source code simply are not object code. That's why you need the LISP or perl interpreter executable (in object code form) to make it work. In contrast, when you compile a C executable, you don't need the C compiler any more, nor do you need anything else besides the OS. Pascal and Java are different still, and have intermediate formats that aren't source code and aren't object code, but can be stored 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 Fri Sep 15 02:09:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20392 for dvd-discuss-outgoing; Fri, 15 Sep 2000 02:09:23 -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 CAA20389 for ; Fri, 15 Sep 2000 02:09:23 -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 CAA04828; Fri, 15 Sep 2000 02:10:30 -0400 (EDT) Message-ID: <39C1BDEB.8785FAEB@mit.edu> Date: Fri, 15 Sep 2000 02:12:59 -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] Bernstein opinion on "conduct" References: <20000915053203.16960.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: > > > For LISP, and any other interpreted language, the > > source code is exactly as functional as the "object > > code," and the "object code" is exactly as readable > > as the source code. They're the same thing. > > No. Interpreted languages have objected code created that isn't stored. > LISP, perl, etc... source code simply are not object code. That's why > you need the LISP or perl interpreter executable (in object code form) > to make it work. In contrast, when you compile a C executable, you > don't need the C compiler any more, nor do you need anything else > besides the OS. Pascal and Java are different still, and have > intermediate formats that aren't source code and aren't object code, > but can be stored separately. It is all a matter of perspective. Source code in an interpreted language can be considered "object code" for the language's virtual machine (or physical machine, if you're a glutton for punishment and you build it and people did build Lisp machines, IIRC). This is exactly the POV of my Master's thesis, which discusses a compiler whose target-machine language is a subset of Scheme. And by the same reasoning you can say that the C executables are not "object code" either because you need the correct OS, microprocessor, and possibly other peripherals to run them on. Does the DeCSS executable magically stop being object code when stored on an Alpha or machine without a DVD-ROM drive? The real point we should be drawing from this neverending argument is that, while people can usually talk intelligently about "source code" and "object code" with an appropriate context, in general there is no firm line between the concepts and trying to draw one is a futile exercise. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 02:12:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20555 for dvd-discuss-outgoing; Fri, 15 Sep 2000 02:12:23 -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 CAA20552 for ; Fri, 15 Sep 2000 02:12:22 -0400 Message-ID: <20000915061300.20195.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 14 Sep 2000 23:13:00 PDT Date: Thu, 14 Sep 2000 23:13:00 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Pamela Samuelson To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I seem to recall reading somewhere that Pamela Samuelson provided an amicus brief to the district court. I was trying to find it (and failed), but I did stumble on to her web page. She has written an incredible amount of stuff on IP and Cyberlaw that at first glance looks pretty agreeable to our mindset. Here's her papers page: http://www.sims.berkeley.edu/~pam/papers.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 Fri Sep 15 02:19:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20727 for dvd-discuss-outgoing; Fri, 15 Sep 2000 02:19:16 -0400 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20724 for ; Fri, 15 Sep 2000 02:19:15 -0400 Received: from 25915 (44.4.252.64.snet.net [64.252.4.44]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id CAA29607 for ; Fri, 15 Sep 2000 02:20:23 -0400 (EDT) Message-ID: <00a401c01edd$08e7f980$d559fea9@25915> From: "Ernest Miller" To: References: <20000915061300.20195.qmail@web512.mail.yahoo.com> Subject: Re: [dvd-discuss] Pamela Samuelson Date: Fri, 15 Sep 2000 02:20:19 -0400 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.50.4133.2400 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 Her declaration can be found in the DVD archives at www.eff.org. ----- Original Message ----- From: "Bryan Taylor" To: Sent: Friday, September 15, 2000 2:13 AM Subject: [dvd-discuss] Pamela Samuelson > I seem to recall reading somewhere that Pamela Samuelson provided an > amicus brief to the district court. I was trying to find it (and > failed), but I did stumble on to her web page. She has written an > incredible amount of stuff on IP and Cyberlaw that at first glance > looks pretty agreeable to our mindset. > > Here's her papers page: > http://www.sims.berkeley.edu/~pam/papers.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 Fri Sep 15 02:21:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20797 for dvd-discuss-outgoing; Fri, 15 Sep 2000 02:21:02 -0400 Received: from web9403.mail.yahoo.com (web9403.mail.yahoo.com [216.136.129.109]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA20794 for ; Fri, 15 Sep 2000 02:21:01 -0400 Message-ID: <20000915062139.91722.qmail@web9403.mail.yahoo.com> Received: from [209.90.98.27] by web9403.mail.yahoo.com; Thu, 14 Sep 2000 23:21:39 PDT Date: Thu, 14 Sep 2000 23:21:39 -0700 (PDT) From: Phill K Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 LDS, such persons are not ordained but just members of the church. I don't know what happened to that case, I think ULM may have settled. No, they haven't settled. It's in limbo. There is the "new version" which has a copyright, but there is an older version that does not have a copyright, and was "unpublished". __________________________________________________ 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 Sep 15 02:31:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA21090 for dvd-discuss-outgoing; Fri, 15 Sep 2000 02:31:59 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA21087 for ; Fri, 15 Sep 2000 02:31:58 -0400 Received: from ppp.anonymizer.com (c03-139.015.popsite.net [64.24.74.139]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA14641 for ; Thu, 14 Sep 2000 23:34:59 -0700 (PDT) Message-Id: <4.3.2.7.2.20000914232842.00a9f570@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 14 Sep 2000 23:33:02 -0700 To: From: "James S. Tyre" Subject: Re: [dvd-discuss] Pamela Samuelson In-Reply-To: <00a401c01edd$08e7f980$d559fea9@25915> References: <20000915061300.20195.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 02:20 AM 9/15/2000 -0400, Ernest Miller wrote: >Her declaration can be found in the DVD archives at www.eff.org. As a side note, Pam joined the EFF Board of Directors a month or so ago, at the same time that Cindy Cohn and Lee Tien (Prof. Bernstein's attorneys) joined EFF legal staff. Pam was one of the earliest and most vocal critics of DMCA, long before it was enacted, so her views should be in accord with the consensus here; or perhaps, better said that ours should be in accord with hers. ;-) >----- Original Message ----- >From: "Bryan Taylor" >To: >Sent: Friday, September 15, 2000 2:13 AM >Subject: [dvd-discuss] Pamela Samuelson > > > > I seem to recall reading somewhere that Pamela Samuelson provided an > > amicus brief to the district court. I was trying to find it (and > > failed), but I did stumble on to her web page. She has written an > > incredible amount of stuff on IP and Cyberlaw that at first glance > > looks pretty agreeable to our mindset. > > > > Here's her papers page: > > http://www.sims.berkeley.edu/~pam/papers.html > > > > __________________________________________________ > > Do You Yahoo!? > > Yahoo! Mail - Free email you can access from anywhere! > > http://mail.yahoo.com/ -------------------------------------------------------------------- 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 Sep 15 03:06:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA21795 for dvd-discuss-outgoing; Fri, 15 Sep 2000 03:06:22 -0400 Received: from argo.dyndns.org (9hsddAG11By8a7DUJlYqKQ@host212-140-202-8.btinteractive.net [212.140.202.8]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA21792 for ; Fri, 15 Sep 2000 03:06:20 -0400 Received: from xml.ne.mediaone.net (IDENT:root@fork.man2.dom [172.16.1.2]) by argo.dyndns.org (8.10.0/8.10.0) with ESMTP id e8F770e15369 for ; Fri, 15 Sep 2000 08:07:00 +0100 X-test: X Received: from fork.man2.dom (IDENT:paul@localhost.localdomain [127.0.0.1]) by xml.ne.mediaone.net (8.11.0/8.11.0) with ESMTP id e8F78av30359 for ; Fri, 15 Sep 2000 08:08:36 +0100 Message-Id: <200009150708.e8F78av30359@xml.ne.mediaone.net> X-Mailer: exmh version 2.1.1 10/15/1999 X-Exmh-Isig-CompType: unknown X-Exmh-Isig-Folder: out To: dvd-discuss@eon.law.harvard.edu From: Paul Ashton Subject: [dvd-discuss] Granting authority as the copyright owner Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Date: Fri, 15 Sep 2000 08:08:36 +0100 X-Copied: Yes Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If someone provides some copyright content to a company that can burn a DVD with it on, and that DVD is distributed with the copyright owner *granting* authority to access the work, then would that not specifically legalise DeCSS (or variant) to access this DVD? Since the copyright owner has given authority to descramble a scrambled work, then the DeCSS user is no longer circumventing a technological measure. Paul From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 03:10:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA21977 for dvd-discuss-outgoing; Fri, 15 Sep 2000 03:10:18 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id DAA21974 for ; Fri, 15 Sep 2000 03:10:14 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Fri, 15 Sep 2000 15:11:13 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 15 Sep 2000 15:04:24 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0372C3@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] expanded beyond DVD's Date: Fri, 15 Sep 2000 15:04:24 +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 see Fujitsus release http://www.fujitsu.co.jp/en/news/2000/09/13.html also of course discussion at slashdot. perhaps this can be waved at the court to show that the home content producer will be squeezed out of market if circumvention is left illegal. It certainly could allow (esp. when combined with Europe allowing software patents) for Linux to be outlawed as it allows end users to bypass any protection method. It can't get any worse can it? cya, Andrew... The information transmitted is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, copying or other use of, or taking any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this in error, please contact the sender and delete the material from your system. Utility Services Corporation (USC) is not responsible for any changes made to the material other than those made by USC or for the effect of the changes on the material’s meaning. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 03:19:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22174 for dvd-discuss-outgoing; Fri, 15 Sep 2000 03:19:37 -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 DAA22171 for ; Fri, 15 Sep 2000 03:19:35 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id DAA11365 for ; Fri, 15 Sep 2000 03:20:14 -0400 Date: Fri, 15 Sep 2000 03:20:13 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Granting authority as the copyright owner In-Reply-To: <200009150708.e8F78av30359@xml.ne.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 Better yet, create a DVD to which authority is specifically granted to DeCSS but NOT to players manufactured by any entity which has licensed CSS decryption software et al from the DVDCCA (eg Sony, Panasonic, Pioneer...) Given that the DVD, which would be encrypted with CSS (can't be that hard to do, no law against it) could be decrypted by the commercial players contrary to the authorization printed on the disc, this would place the hw manufacturers in violation of the DMCA. I like it. It would be nice to sue them in the 2nd district for trafficking in circumvention devices. Maybe we'd get lucky and end up with Kaplan... he'd be sympathetic to our cause ;) On Fri, 15 Sep 2000, Paul Ashton wrote: > If someone provides some copyright content to a company that can > burn a DVD with it on, and that DVD is distributed with the copyright > owner *granting* authority to access the work, then would that not > specifically legalise DeCSS (or variant) to access this DVD? > > Since the copyright owner has given authority to descramble a > scrambled work, then the DeCSS user is no longer circumventing a > technological measure. > > Paul > From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 03:20:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22246 for dvd-discuss-outgoing; Fri, 15 Sep 2000 03:20:49 -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 DAA22229 for ; Fri, 15 Sep 2000 03:20:47 -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 DAA10317; Fri, 15 Sep 2000 03:21:55 -0400 (EDT) Message-ID: <39C1CEAC.81532DE4@mit.edu> Date: Fri, 15 Sep 2000 03:24:28 -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] Granting authority as the copyright owner References: <200009150708.e8F78av30359@xml.ne.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 Paul Ashton wrote: > > If someone provides some copyright content to a company that can > burn a DVD with it on, and that DVD is distributed with the copyright > owner *granting* authority to access the work, then would that not > specifically legalise DeCSS (or variant) to access this DVD? > > Since the copyright owner has given authority to descramble a > scrambled work, then the DeCSS user is no longer circumventing a > technological measure. > > Paul Sure, but good luck getting a DVD pressing facility to press your DVD. They depend on the MPAA members for the vast majority of the business the way CD pressers depend on the RIAA (look at http://www.negativland.com/intprop.html, particularly http://www.negativland.com/riaa/index.html) to see how the RIAA exploited this relationship. In that particular case the RIAA backed down, but I wouldn't bet on the MPAA backing down in this one... - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 06:11:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA25806 for dvd-discuss-outgoing; Fri, 15 Sep 2000 06:11:51 -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 GAA25803 for ; Fri, 15 Sep 2000 06:11:39 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id GAA15206 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 06:14:38 -0400 Date: Fri, 15 Sep 2000 06:14:32 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] What is missing? Message-ID: <20000915061432.A14869@eldritchpress.org> References: <20000914164952.C13837@eldritchpress.org> <39C19ADB.55F36EDE@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39C19ADB.55F36EDE@swbell.net>; from tjolley@swbell.net on Thu, Sep 14, 2000 at 10:43:23PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 10:43:23PM -0500, Jolley wrote: >... > So, if there is a work that has passed into the public domain after > its copyright term has expired and is on a DVD "protected" by CSS, > the public can traffic in circumvention devices because we have > the authority of one of the "new copyright owners", the public? > Or, can we call CSS a circumvention device against one of "our" > copyrighted works? No. "Trafficking" in circumvention devices that can decrypt the CSS-protected copyrighted works is still illegal, and thus any distribution of the "device" is illegal--according to Kaplan, you have a right to access and copy, you just can't exercise it by getting the "device" from another person. > Does CSS as a TPM expire as soon as one work protected by CSS passes > into the public domain? No. I don't mean to claim that it should. However, there is no requirement that the TPM be removed when copyright term expires. So the result is the trite "you can swim but you can't go near the water" idea. I think it should be "you can swim in an area protected by lifeguards, and after you have learned to swim." It should not be the "device" that is authorized, but rather the person. In cases of fair use, as when the work enters the public domain, it should not be illegal to decrypt, nor to distribute a program that can so decrypt. The situation is exactly parallel to Universal v Sony or Vault v Quaid, where the authorized purchaser of a copyrighted work was allowed also to purchase a program or device that permitted the user to make fair use of the movie or software. Even more so, the user of a work that has entered the public domain should be permitted to "circumvent" and also distribute a program that so circumvents, in order to make fair use. Note that a true TPM would be able to be programmed so as to allow fair use. It is only this "pretextual" control that permits studios to deny fair use and use of a work in the public domain. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 06:17:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA26014 for dvd-discuss-outgoing; Fri, 15 Sep 2000 06:17:43 -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 GAA25995 for ; Fri, 15 Sep 2000 06:17:28 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id GAA15227 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 06:20:27 -0400 Date: Fri, 15 Sep 2000 06:20:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000915062022.B14869@eldritchpress.org> References: <20000915053203.16960.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000915053203.16960.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Sep 14, 2000 at 10:32:03PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 10:32:03PM -0700, Bryan Taylor wrote: > > --- Sphere wrote: > > > For LISP, and any other interpreted language, the > > source code is exactly as functional as the "object > > code," and the "object code" is exactly as readable > > as the source code. They're the same thing. > > No. Interpreted languages have objected code created that isn't stored. > LISP, perl, etc... source code simply are not object code. That's why > you need the LISP or perl interpreter executable (in object code form) > to make it work. In contrast, when you compile a C executable, you > don't need the C compiler any more, nor do you need anything else > besides the OS. Pascal and Java are different still, and have > intermediate formats that aren't source code and aren't object code, > but can be stored separately. Well, the p-code of Pascal can be authored by a person as well as directly run as object code on a CPU (Western Digital). Sun makes a chip that directly runs Java; the instructions could be implemented in silicon. But this topic is far from germane now; can we call it to a halt-op? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 06:20:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA26105 for dvd-discuss-outgoing; Fri, 15 Sep 2000 06:20:39 -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 GAA26086 for ; Fri, 15 Sep 2000 06:20:28 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id GAA15251 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 06:23:27 -0400 Date: Fri, 15 Sep 2000 06:23:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Granting authority as the copyright owner Message-ID: <20000915062321.C14869@eldritchpress.org> References: <200009150708.e8F78av30359@xml.ne.mediaone.net> <39C1CEAC.81532DE4@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39C1CEAC.81532DE4@mit.edu>; from ravi_n@mit.edu on Fri, Sep 15, 2000 at 03:24:28AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 15, 2000 at 03:24:28AM -0400, Ravi Nanavati wrote: > Paul Ashton wrote: > > > > If someone provides some copyright content to a company that can > > burn a DVD with it on, and that DVD is distributed with the copyright > > owner *granting* authority to access the work, then would that not > > specifically legalise DeCSS (or variant) to access this DVD? > > > > Since the copyright owner has given authority to descramble a > > scrambled work, then the DeCSS user is no longer circumventing a > > technological measure. > > > > Paul > > Sure, but good luck getting a DVD pressing facility > to press your DVD. They depend on the MPAA members > for the vast majority of the business the way CD > pressers depend on the RIAA (look at > http://www.negativland.com/intprop.html, particularly > http://www.negativland.com/riaa/index.html) to see > how the RIAA exploited this relationship. In that > particular case the RIAA backed down, but I wouldn't > bet on the MPAA backing down in this one... I think after the amicus brief we ought to discuss this. But when I raised it before there were serious objections we can't go into at the moment--let's discuss it in a few weeks. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 06:28:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA26300 for dvd-discuss-outgoing; Fri, 15 Sep 2000 06:28:33 -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 GAA26297 for ; Fri, 15 Sep 2000 06:28:30 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id LAA13163 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 11:17:32 +0100 Date: Fri, 15 Sep 2000 11:17:32 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000915111732.A13116@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000914185650.18810.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <20000914185650.18810.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Sep 14, 2000 at 11:56:50AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 14, 2000 at 11:56:50AM -0700, Bryan Taylor wrote: > > I disagree, the distinction is that source code is NEVER functional (as > Fletcher pointed out in Bernstein) and contains ideas that are clearly > lost in the transformation to object code. > But what about scripting languages which are interpreted or compiled at run-time? In those cases you can't separate the object code and distribute it independantly of the source code. Also IIRC Transmeta's Crusoe chips translate x86 machine instructions internally before execution, so it's not really clear which type of code is functional and which is not. I'm not even sure that you can argue that ideas are lost in compilation. Admittedly some of the aspects of presentation that make the code easier to understand are lost, but the basic description of the function of the code is still there (just in a much more detailed form). -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 06:41:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA26667 for dvd-discuss-outgoing; Fri, 15 Sep 2000 06:41:32 -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 GAA26664 for ; Fri, 15 Sep 2000 06:41:20 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id GAA15295 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 06:44:20 -0400 Date: Fri, 15 Sep 2000 06:44:15 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] what we are up against Message-ID: <20000915064414.A15273@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/2000/09/15/opinion/15FRI1.html (free registration required), 'A Threat to Judicial Ethics,' shows what we are up against. "...as Abner Mikva, the former White House counsel and federal appellate judge, noted in a recent Op-Ed piece in The Times, the fairness and impartiality of the federal judiciary are already being seriously undermined by allowing federal judges to accept free vacations at posh resorts from private interests bent on influencing their future decisions." ... "The need for reform was underscored a week ago when a federal district judge in Manhattan, Jed Rakoff, denied a motion to recuse himself from further involvement in a lawsuit seeking damages from Texaco for harming the rain forest in Ecuador. Lawyers for the plaintiffs - indigenous people who live in the rain forest - filed the recusal motion upon learning of Judge Rakoff's ill-advised participation in an expenses-paid seminar on environmental issues that had been held at a Montana ranch by a foundation receiving sizable donations from Texaco. One of the lecturers was Alfred DeCrane Jr., the retired chairman and chief executive officer of Texaco, who ran the company when it operated in Ecuador. In his ruling, Judge Rakoff argued that his acceptance of the travel gift was within existing rules, a hair-splitting explanation that does not remove qualms about his judgment or impartiality." So would the appeals court judges like to take a trip to a nice vacation spot and learn all about computers and encryption and copyright law, all expenses paid by not Hollywood but the Free Software movement? ESR could invite them to his firing range for more free entertainment. I am sure all of us would love to participate. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 07:46:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA28512 for dvd-discuss-outgoing; Fri, 15 Sep 2000 07:46:07 -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 HAA28509 for ; Fri, 15 Sep 2000 07:46:07 -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 HAA00336 for ; Fri, 15 Sep 2000 07:47:16 -0400 (EDT) Message-ID: <39C20C44.2471BE75@mediaone.net> Date: Fri, 15 Sep 2000 07:47:16 -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] Amicus brief general question References: <20000915045931.5875.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: > > > >The rules are exactly what James predicted they would be (half the > > >length of a party's brief, filed within 7 days of brief of supported > > >party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) > > > > No kidding on the "!". That's why I've been harping on the point. > > I guess we have several options: > A) Cut now from the outline > B) Write, see what we like, and then cut > C) Set page limits per outline section and write to spec > D) Ask the judge for a page limit extention > E) Seperate topics into different briefs (from different organizations) > > How crazy is it to consider asking for more pages? Kaplan, after all, > was pretty long-winded at 89 pages and this is a case with fairly > heavy-duty issues (free speech, the future of copyright, internet regulation). Asking for, and not getting, more pages might make more pages easier to get at the SC. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 08:08:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA29057 for dvd-discuss-outgoing; Fri, 15 Sep 2000 08:08:17 -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 IAA29054 for ; Fri, 15 Sep 2000 08:08:16 -0400 Received: from samsara.law.cwru.edu (localhost [127.0.0.1]) by samsara.law.cwru.edu (8.9.3/8.9.3) with ESMTP id IAA00741; Fri, 15 Sep 2000 08:10:45 -0400 Message-Id: <200009151210.IAA00741@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-reply-to: Your message of "Thu, 14 Sep 2000 11:30:06 +0200." <20000914113006.C7391@lemuria.org> Date: Fri, 15 Sep 2000 08:10:15 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: : is any expression speech in the US? is a painting speech? For the purposes of the first amendment the answer, of course, is yes. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 08:34:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA29604 for dvd-discuss-outgoing; Fri, 15 Sep 2000 08:34:46 -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 IAA29601 for ; Fri, 15 Sep 2000 08:34:45 -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 IAA04895 for ; Fri, 15 Sep 2000 08:35:54 -0400 (EDT) Message-ID: <39C217AA.2B8FC69D@mediaone.net> Date: Fri, 15 Sep 2000 08:35:54 -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] Bernstein opinion on "conduct" References: <20000915053203.16960.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: > > > For LISP, and any other interpreted language, the > > source code is exactly as functional as the "object > > code," and the "object code" is exactly as readable > > as the source code. They're the same thing. > > No. Interpreted languages have objected code created that isn't stored. > LISP, perl, etc... source code simply are not object code. That's why > you need the LISP or perl interpreter executable (in object code form) > to make it work. In contrast, when you compile a C executable, you > don't need the C compiler any more, nor do you need anything else > besides the OS. Pascal and Java are different still, and have > intermediate formats that aren't source code and aren't object code, > but can be stored separately. The LISP interpreter is a machine. If you enter your LISP code directly into the interpreter rather than prepare an ASCII file first then your source is run directly. If you do that with a LISP machine then your source is run directly by the hardware. I've written an applicative LISP interpreter, and there was no translation step of any sort. Symbols were looked up or created when entered -- although I did add a buffer so you could do a bit of line editing. (There was no OS on the machine at the time the interpreter was running. It did it's own I/O. I never gave it any file I/O capabilities.) The distinction between software and hardware is an illusion, but it's an illusion I don't think we want to unmask at this juncture. (Even if I would like to see the C RTL implemented in the silicon.) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 08:57:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30195 for dvd-discuss-outgoing; Fri, 15 Sep 2000 08:57:51 -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 IAA30192 for ; Fri, 15 Sep 2000 08:57:50 -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 e8FCx0O18953 for ; Fri, 15 Sep 2000 07:59:00 -0500 (CDT) Received: from localhost (sytobinh@localhost) by harper.uchicago.edu (8.10.1/8.10.1) with ESMTP id e8FCwv111839 for ; Fri, 15 Sep 2000 07:58:57 -0500 (CDT) X-Authentication-Warning: harper.uchicago.edu: sytobinh owned process doing -bs Date: Fri, 15 Sep 2000 07:58:57 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Granting authority as the copyright owner In-Reply-To: <20000915062321.C14869@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 > > Sure, but good luck getting a DVD pressing facility > > to press your DVD. They depend on the MPAA members > > for the vast majority of the business the way CD > > pressers depend on the RIAA (look at > > http://www.negativland.com/intprop.html, particularly > > http://www.negativland.com/riaa/index.html) to see > > how the RIAA exploited this relationship. In that > > particular case the RIAA backed down, but I wouldn't > > bet on the MPAA backing down in this one... I especially like the line from the RIAA rep - "Fair use isn't a right, it's a defense!" I nominate them for 'first against the wall when the revolution comes.' sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 09:04:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30443 for dvd-discuss-outgoing; Fri, 15 Sep 2000 09:04:22 -0400 Received: from samsara.law.cwru.edu (samsara.LAW.CWRU.Edu [129.22.186.16]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA30425 for ; Fri, 15 Sep 2000 09:04:21 -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 JAA01009; Fri, 15 Sep 2000 09:06:50 -0400 Message-Id: <200009151306.JAA01009@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] What is missing? In-reply-to: Your message of "Thu, 14 Sep 2000 12:47:45 EDT." Date: Fri, 15 Sep 2000 09:06:20 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Harold Eaton" writes: : Bryan Taylor wrote: : : >Well, you can copyright unpublished works and exclude others : >completely; you just can't SELL it and do so. I think you should say : >"WHY should the author be allowed to profit from his copyright : >protection". : : While mostly true, I believe that this notion of copyright on : unpublished works is unconstitutional - it fails to promote : the progress of the useful arts. More to the point, in order to : exercise the rights - i.e. bring suite against a violator, you : must first file the work with the copyright office; is this not : pretty close to publishing? Can I not examine all that is filed : with the copyright office at the library of congress? Copyright on unpublished works may not be authorized by the (patent and copyright) clause of the constitution. Until recently it was protected under state law as a so-called ``commonlaw copyright.'' The common law copyright was lost under the federal copyright act when the work was published, and after that time only federal copyright was available, and one had to meet various formalities that no longer exist to get that protection. Perhaps like the DMCA anti-circumvention provisions copyright on unpublished works is authorized only by the commerce clause. All of this is very speculative. The real problem will be a practical one when the world comes to realize that every note to the milkman, and every essay on how I spent my summer by second graders, and every doodle doodled in the United States is presumptively protected by copyright. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 09:11:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA30673 for dvd-discuss-outgoing; Fri, 15 Sep 2000 09:11:28 -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 JAA30669 for ; Fri, 15 Sep 2000 09:11:27 -0400 Received: from swbell.net ([64.216.209.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0X00BOVIZ4QN@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 08:04:17 -0500 (CDT) Date: Fri, 15 Sep 2000 07:55:42 -0500 From: Jolley Subject: Re: [dvd-discuss] Amicus brief general question To: dvd-discuss@eon.law.harvard.edu Message-id: <39C21C4E.D82FB3E3@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: <20000915045931.5875.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 wrote: > > --- "James S. Tyre" wrote: > > > >The rules are exactly what James predicted they would be (half the > > >length of a party's brief, filed within 7 days of brief of supported > > >party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) > > > > No kidding on the "!". That's why I've been harping on the point. > > I guess we have several options: > A) Cut now from the outline > B) Write, see what we like, and then cut > C) Set page limits per outline section and write to spec > D) Ask the judge for a page limit extention > E) Seperate topics into different briefs (from different organizations) > More options: F) Write a very powerful argument in, say, 5 pages. In one of my art classes we used to say the more a critic has to say about a piece of art, the less there is. The corollary here is the less said the more (powerful) it is. As a suggestion of what to put in the 5 pages, go for the constitutional jugular. Point out the following: 1) Congress granted a right to one author over another author's writing. Congress can only grant a right to an author ONLY to the author's work. 2) Congress granted an unlimited right to a device. Congress can only grant for a LIMITED TIME an exclusive right to an inventor's device. 3) Any of the other constitutional questions about DMCA presented so far. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 09:39:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA31339 for dvd-discuss-outgoing; Fri, 15 Sep 2000 09:39:05 -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 JAA31335 for ; Fri, 15 Sep 2000 09:39:04 -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 JAA25356 for ; Fri, 15 Sep 2000 09:40:13 -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 JAA02821 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:40:13 -0400 Date: Fri, 15 Sep 2000 09:40:13 -0400 Message-Id: <200009151340.JAA02821@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus brief general question Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I guess we have several options: > A) Cut now from the outline > B) Write, see what we like, and then cut > C) Set page limits per outline section and write to spec > D) Ask the judge for a page limit extention > E) Seperate topics into different briefs (from different organizations) Regarding E), there's also the possibility of recruiting other organizations; if Copyrights' Commons isn't already planning to supply a brief, they might be a good source for, e.g., the first sale arguments. Of course, that does risk drowning the court in paper, which they wouldn't read. On another topic, I was hoping this weekend to try to write up a full version of the "authorized person, not authorized device" argument, first sketched out in ~3 pages in http://eon.law.harvard.edu/archive/dvd-discuss/msg07722.html based on the extended outline in http://eon.law.harvard.edu/archive/dvd-discuss/msg08106.html (which looks like it was more or less inserted into Bryan's larger outline). However, it would be nice to have some feedback from a lawyer with time to briefly review this (yeah, right) as to what *really* needs to be added to the 07722 sketch (beyond some mention of the Constitutional issues with effective indefinite patents); if the stuff I added in outline is just gilding the lily, we have less of a problem here. (In particular, (II) from my outline covers facts which may well be covered elsewhere in a larger brief...) rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 10:04:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA32026 for dvd-discuss-outgoing; Fri, 15 Sep 2000 10:04:50 -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 KAA32023 for ; Fri, 15 Sep 2000 10:04:48 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13Zw7o-0004UH-00 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 16:05:56 +0200 Date: Fri, 15 Sep 2000 16:05:56 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] 4C entity In-Reply-To: <39C21C4E.D82FB3E3@swbell.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I went browsing for information on the SDMI watermarking scheme, for the upcoming challenge. The company that provides the technology (http://www.verance.com/verance.html) also provide watermarking for DVD-AUDIO, a intrensting conundrum - why do you watermark a mass-pressed media ? Search for specific technical details dead ended in a web page describing a licencning procedure to obtain information that at the same time was both "Highly Confidential Information." _and_ patented. I said to myself, this smacks of DVD-CCA security through obscurity stupidity. http://www.4centity.com/4centity/licensing/verance/ No sooner than I had said that, I saw that 4centity is has the same html tree as the DVD CCA. In fact the websites: http://www.dvdcca.org/ and http://www.4centity.com/ appear to be identical. So for those who haven't heard about the 4C entity (like me): Meet your foe :-) While on the subject of watermarking, in order for it to be effective, it must be traceable to an "authorised individual", but 1201(i)(1) seems to allow the disabling of TPMs that are capable of "disseminating parsonally identifying" information. This is of course fine material for another lawsuit altogether, one that must surely come - perhaps it would be better to get a declaratory judgment on this, before we meet the bloodhounds of RIAA / 4C. frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 10:10:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA32224 for dvd-discuss-outgoing; Fri, 15 Sep 2000 10:10:24 -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 KAA32221 for ; Fri, 15 Sep 2000 10:10:23 -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 e8FEBWO21006 for ; Fri, 15 Sep 2000 09:11:32 -0500 (CDT) Received: from localhost (sytobinh@localhost) by harper.uchicago.edu (8.10.1/8.10.1) with ESMTP id e8FEBU201761 for ; Fri, 15 Sep 2000 09:11:30 -0500 (CDT) X-Authentication-Warning: harper.uchicago.edu: sytobinh owned process doing -bs Date: Fri, 15 Sep 2000 09:11:30 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] FCC approves copy protection in digital cable set-top boxes In-Reply-To: <20000915040616.9859.qmail@web113.yahoomail.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, 14 Sep 2000, Larry Blunk wrote: > It looks like the FCC has given the go ahead for > requiring copy-protection technology in digital cable > set-top boxes. The annoucement can be found at > http://www.fcc.gov/Bureaus/Cable/News_Releases/2000/nrcb0022.html > > It will require that box makers licence the > proprietary > and patented "DFast" technology from CableLabs. > Specifications (minus information on DFast) can > be found here: > http://www.opencable.com/IS-POD-CP-INT03-000714.final.pdf > I thought the point of the decision was that it was legal for manufacturers to have licesnse agreements that required encryption, and that this did not violate the rule that consumers must be able to purchase hardware from manufactureres other than the cable company (nice rule, ain't it). While I may disagree with this ruling, I don't think it creates a government mandate for obnoxious copy protection. sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 10:47:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA00722 for dvd-discuss-outgoing; Fri, 15 Sep 2000 10:47:11 -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 KAA00715 for ; Fri, 15 Sep 2000 10:47:09 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 15 Sep 2000 16:37:05 +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; Fri, 15 Sep 2000 08:27:07 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 15 Sep 2000 08:27:07 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Outline for Appellate Amicus Version 3 Message-ID: <20000915082707.B10839@lemuria.org> References: <20000915005459.14109.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000915005459.14109.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: > > > a) Bypassing region coding, sole purpose is restraint of > > > trade > > > b) Bypassing use controls, e.g., no hi-res digital output > > > (HDTV) > > > c) To make a player from scratch > > (maybe this should be the first mentioned) > > ... to avoid the restrictive terms of the DVD-CCA licence. that's the main point which includes a) and b) because you can only do a) and b) by bypassing the CSS license. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 10:47:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA00714 for dvd-discuss-outgoing; Fri, 15 Sep 2000 10:47:09 -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 KAA00710 for ; Fri, 15 Sep 2000 10:47:07 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 15 Sep 2000 16:37:05 +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; Fri, 15 Sep 2000 08:16:26 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 15 Sep 2000 08:16:26 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000915081626.A10839@lemuria.org> References: <20000915001756.A9645@lemuria.org> <001a01c01ea2$ce28a7c0$0200a8c0@shannon> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <001a01c01ea2$ce28a7c0$0200a8c0@shannon> 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 Dempsey" wrote: > In the testimony and in the deCSS site where the algorythm takes various > forms, a language was 'invented', for which there exists no compiler, and > the decryption process was described in this language. In theory, a > compiler Could be created for this language, so the content is therefore > illegal. It's the ideas themselves now illegal to express, in source, > object, song, or tee-shirt, with increasing risk for doing so. that's the point. kaplan judged on the "primarily a circumvention device" argument, even though he himself couldn't say where expression ends and function starts. I think that is where he missed the point and started to slide down the slippery slope towards "thought crime". the example of the non-compilable language is great. for all practical purposes, this is NOT code. it's a description. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 11:03:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01360 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:03:43 -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 LAA01357 for ; Fri, 15 Sep 2000 11:03:42 -0400 Message-ID: <20000915150421.7904.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 15 Sep 2000 08:04:21 PDT Date: Fri, 15 Sep 2000 08:04:21 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus brief general 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 --- "James S. Tyre" wrote: > >How crazy is it to consider asking for more pages? Kaplan, after > >all, was pretty long-winded at 89 pages and this is a case > >with fairly heavy-duty issues (free speech, the future of > copyright, internet regulation). > > Since Wendy is in the Second Circuit, she or others in her firm may > be able to provide some guidance here, but the rule says that > the application for leave to file an amicus must be accompanied > by the proposed amicus. In other words, you don't ask in advance > for permission to file a brief in excess of 15 pp. > > This is the kind of rule that courts are not duty-bound to follow, it > may be that the 2d will entertain an advance application to file > a longer brief. But I have no relevant knowledge of the 2d's > practices here, and if they stick to the letter of the rule, > this can't be done. There's another question of whether or not we think we would provide a stronger brief if we were allowed more pages. I can see arguments both ways. Shorter means greater ability to penetrate limited attention spans, whereas longer means better ability to cover the many points we think point to reversal. __________________________________________________ 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 Sep 15 11:08:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01544 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:08:09 -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 ESMTP id LAA01541 for ; Fri, 15 Sep 2000 11:08:08 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 15 Sep 2000 08:08:48 -0700 Received: from 128.244.34.133 by lw9fd.law9.hotmail.msn.com with HTTP; Fri, 15 Sep 2000 15:08:48 GMT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Date: Fri, 15 Sep 2000 11:08:48 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 15 Sep 2000 15:08:48.0226 (UTC) FILETIME=[D95BBC20:01C01F26] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >No. Interpreted languages have objected code created that isn't stored. >LISP, perl, etc... source code simply are not object code. That's why >you need the LISP or perl interpreter executable (in object code form) >to make it work. In contrast, when you compile a C executable, you >don't need the C compiler any more, nor do you need anything else >besides the OS. Pascal and Java are different still, and have >intermediate formats that aren't source code and aren't object code, >but can be stored separately. Well, at least for the forth language, there is a hardware processor (FRISC) that directly executes ascii forth source code with no intermediaries, no compilation, NO OBJECT CODE. I know, I work with the folks who designed that chip for spacecraft control. _________________________________________________________________________ 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 Fri Sep 15 11:10:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA01615 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:10:10 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA01612 for ; Fri, 15 Sep 2000 11:10:06 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Fri, 15 Sep 2000 23:11:08 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 15 Sep 2000 23:04:18 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0372C5@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 4C entity Date: Fri, 15 Sep 2000 23:04:17 +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 In the new Australian version of DMCA there is a section on making it illegal to remove electronic rights management information that might be embedded in the work. This makes copying to tape for your car or ripping to mp3 a no-no if a watermark is present. I presume the DMCA also has something along this line as they are both implementations of the WIPO treaties. cya, Andrew... > -----Original Message----- > From: Frank Andrew Stevenson [SMTP:frank@funcom.com] > Sent: Friday, 15 September 2000 22:06 > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] 4C entity > > > I went browsing for information on the SDMI watermarking scheme, > for the upcoming challenge. The company that provides the technology > (http://www.verance.com/verance.html) also provide watermarking for > DVD-AUDIO, a intrensting conundrum - why do you watermark a mass-pressed > media ? > > Search for specific technical details dead ended in a web page > describing a licencning procedure to obtain information that at > the same time was both "Highly Confidential Information." _and_ > patented. I said to myself, this smacks of DVD-CCA security > through obscurity stupidity. > > http://www.4centity.com/4centity/licensing/verance/ > > No sooner than I had said that, I saw that 4centity is has the same html > tree as the DVD CCA. In fact the websites: http://www.dvdcca.org/ and > http://www.4centity.com/ appear to be identical. > > So for those who haven't heard about the 4C entity (like me): Meet your > foe :-) > > While on the subject of watermarking, in order for it to be effective, it > must be traceable to an "authorised individual", but 1201(i)(1) seems to > allow the disabling of TPMs that are capable of "disseminating parsonally > identifying" information. This is of course fine material for another > lawsuit altogether, one that must surely come - perhaps it would be better > to get a declaratory judgment on this, before we meet the bloodhounds of > RIAA / 4C. > > frank > > This sentence is unique in this respect; it can safely > be attributed to my employer, Funcom Oslo AS. > There is no place like N59 50.558' E010 50.870'. (WGS84) > I enjoy coffee, and support cafe: http://www.eff.org/cafe/ The information transmitted is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, copying or other use of, or taking any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this in error, please contact the sender and delete the material from your system. Utility Services Corporation (USC) is not responsible for any changes made to the material other than those made by USC or for the effect of the changes on the material’s meaning. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 11:29:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02117 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:29:26 -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 LAA02097 for ; Fri, 15 Sep 2000 11:29:24 -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 e8FFU3X20025 for ; Fri, 15 Sep 2000 11:30:03 -0400 (EDT) Message-ID: <39C24081.5A5E09F2@mindspring.com> Date: Fri, 15 Sep 2000 11:30:09 -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] 4C entity Content-Type: text/plain; charset=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 new Australian version of DMCA there is a section on making it > illegal to remove electronic rights management information that might be > embedded in the work. This makes copying to tape for your car or ripping to > mp3 a no-no if a watermark is present. I presume the DMCA also has > something along this line as they are both implementations of the WIPO > treaties. > Copying to tape/md/mp3 does not remove the watermark, according to claims made by those competing to be selected as the technology vendor. Here is a link to IBM's claims, pretty impressing "survivability", IMO. http://www.trl.ibm.co.jp/projects/s7730/Hiding/dhaud_e.htm Also, here is the challenge from the SDMI people, should be live tomorrow: http://www.hacksdmi.org mickeym From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 11:36:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02358 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:36:45 -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 LAA02355 for ; Fri, 15 Sep 2000 11:36:44 -0400 Message-ID: <20000915153723.15898.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 15 Sep 2000 08:37:23 PDT Date: Fri, 15 Sep 2000 08:37:23 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > It is all a matter of perspective. Source code in an interpreted > language can be considered "object code" for the language's virtual > machine (or physical machine, if you're a glutton for punishment > and you build it and people did build Lisp machines, IIRC). [...] You could use that language for that particular meaning, but I'm not sure that it's standard language. My main point is that if you don't have that particular virtual machine installed, then you don't have functionality. > [...] This > is exactly the POV of my Master's thesis, which discusses a compiler > whose target-machine language is a subset of Scheme. And by the same > reasoning you can say that the C executables are not "object code" > either because you need the correct OS, microprocessor, and possibly > other peripherals to run them on. Does the DeCSS executable magically > stop being object code when stored on an Alpha or machine without a > DVD-ROM drive? The DeCSS never was object code for an Alpha platform, so it doesn't stop because it never was. I would say that object code is platform specific (meaning hardware + OS). With this meaning, DeCSS does not stop being windows object code even if it is store on a different platform. You could, of course command the alpha machine to exectue the instructions of DeCSS.exe, but on an alpha platform this does NOT give you circumvention funcitonality, it probably gives you core dump functionality. So to speak precisely, you'd have to say DeCSS.exe is not object code for circumvention on an Alpha platform. > The real point we should be drawing from this neverending argument > is that, while people can usually talk intelligently about "source > code" and "object code" with an appropriate context, in general > there is no firm line between the concepts and trying to draw one > is a futile exercise. I think what we really want is to delineate when functionality exists and when it doesn't. Given a desired result, a collection of binary files has a given functionality on a given platform if it can be executed on the platform to produce the result. With this definition, a perl "hello world" program does not have functionality by itself, it MUST be combined with a perl executable and the appropriate operating system software and the appropriate hardware. If perl had never been written, this would be completely obvious. In fact, if you wanted to, I'm sure an interpreter exists that could produce "hello world" or any other desired result with this email as input. That doesn't mean this email has this functionality. The O'Brien standard is about "conduct", which I don't equate to functionality anyway. That is a huge dilution. Speech that has functionality is completely absent of "non-speech elements". __________________________________________________ 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 Sep 15 11:38:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02430 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:38:27 -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 LAA02427 for ; Fri, 15 Sep 2000 11:38:26 -0400 Message-ID: <20000915153906.13300.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 15 Sep 2000 08:39:06 PDT Date: Fri, 15 Sep 2000 08:39:06 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Pamela Samuelson To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ernest Miller wrote: > Her declaration can be found in the DVD archives at www.eff.org. I thought she did a declaration and an amicus brief. I might be confused. __________________________________________________ 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 Sep 15 11:42:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02547 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:42:01 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA02542 for ; Fri, 15 Sep 2000 11:41:54 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Fri, 15 Sep 2000 23:43:01 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 15 Sep 2000 23:36:12 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0372C6@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 4C entity Date: Fri, 15 Sep 2000 23:36:11 +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 But you would agree it would be a simple matter to have RMI that could not be (resonably) copied with the work as well as a more robust watermark to ID where the copy came from? It could even be argued that by not keeping the tracking barcode from the center of the disc when you rip a CD you are in breach of the law. cya, Andrew... > -----Original Message----- > From: mickeym [SMTP:mickeym@mindspring.com] > Sent: Friday, 15 September 2000 23:30 > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] 4C entity > > > In the new Australian version of DMCA there is a section on making it > > illegal to remove electronic rights management information that might be > > embedded in the work. This makes copying to tape for your car or > ripping to > > mp3 a no-no if a watermark is present. I presume the DMCA also has > > something along this line as they are both implementations of the WIPO > > treaties. > > > > Copying to tape/md/mp3 does not remove the watermark, according to > claims made by those competing to be selected as the technology vendor. > Here is a link to IBM's claims, pretty impressing "survivability", IMO. > > http://www.trl.ibm.co.jp/projects/s7730/Hiding/dhaud_e.htm > > Also, here is the challenge from the SDMI people, should be live > tomorrow: > > http://www.hacksdmi.org > > > mickeym The information transmitted is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, copying or other use of, or taking any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this in error, please contact the sender and delete the material from your system. Utility Services Corporation (USC) is not responsible for any changes made to the material other than those made by USC or for the effect of the changes on the material’s meaning. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 11:47:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02762 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:47:45 -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 LAA02759 for ; Fri, 15 Sep 2000 11:47:44 -0400 Message-ID: <20000915154824.17367.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 15 Sep 2000 08:48:24 PDT Date: Fri, 15 Sep 2000 08:48:24 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > But what about scripting languages which are interpreted or compiled > at run-time? In those cases you can't separate the object code and > distribute it independantly of the source code. The interpreter application is part of the executable. This can be distributed in either source or object. These possibilities aren't really before the court - I think everything in this case is C code. __________________________________________________ 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 Sep 15 11:48:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02792 for dvd-discuss-outgoing; Fri, 15 Sep 2000 11:48:46 -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 LAA02787 for ; Fri, 15 Sep 2000 11:48:44 -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 LAA01608; Fri, 15 Sep 2000 11:51:12 -0400 Message-Id: <200009151551.LAA01608@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-reply-to: Your message of "Thu, 14 Sep 2000 22:32:03 PDT." <20000915053203.16960.qmail@web512.mail.yahoo.com> Date: Fri, 15 Sep 2000 11:50:42 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: : : --- Sphere wrote: : : > For LISP, and any other interpreted language, the : > source code is exactly as functional as the "object : > code," and the "object code" is exactly as readable : > as the source code. They're the same thing. : : No. Interpreted languages have objected code created that isn't stored. : LISP, perl, etc... source code simply are not object code. That's why : you need the LISP or perl interpreter executable (in object code form) : to make it work. In contrast, when you compile a C executable, you : don't need the C compiler any more, nor do you need anything else : besides the OS. Pascal and Java are different still, and have : intermediate formats that aren't source code and aren't object code, : but can be stored separately. But doesn't that mean that the object code produced by a compiler is source code for the OS? Or for the shell? (In Linux is bash part of the OS?) And where does the windows manager fit in? And what if you are running object code compiled for MSWindows 3.1 under WINE under a Linux box? And are you saying that if I compile a C program of any size using the GCC compiler I don't need a program like make to get it to run on my Linux box? And what if I want to make an RPM executable ---in that case are you saying that I don't need all the programs that the RPM version is dependent upon? And do you really think that just because I may no longer need the GCC compiler, that my program will run without the appropriate GCC libraries? By the way, IAAL, IANAP, -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 12:06:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03208 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:06:48 -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 MAA03205 for ; Fri, 15 Sep 2000 12:06:42 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 2C96E6BC for ; Fri, 15 Sep 2000 10:54:49 -0500 (CDT) Date: Fri, 15 Sep 2000 10:54:49 -0500 (CDT) From: tim To: dvd-discuss Subject: [dvd-discuss] Time to get out the wallets again... In-Reply-To: <39BCD95B.89FD93C0@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.newsforge.com/article.pl?sid=00/09/15/1327248 EFF takes its DVD case to Linux users, looking to raise funds "After spending more in 2000 on litigation than its entire 1999 operating budget, the Electronic Frontier Foundation says it needs more funds to keep the DeCSS fight going." -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 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 / <_/ / / < / (_; Fri, 15 Sep 2000 12:10:51 -0400 Message-ID: <20000915161131.10926.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 15 Sep 2000 09:11:31 PDT Date: Fri, 15 Sep 2000 09:11:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] what we are up against To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Why did they cover this and not the fact that Kaplan used to BE the lawyer for Warner and that his partner designed their antitrust position while Kaplan was there? --- Eric Eldred wrote: > http://www.nytimes.com/2000/09/15/opinion/15FRI1.html > (free registration required), > 'A Threat to Judicial Ethics,' > shows what we are up against. > > "...as Abner Mikva, the former White House counsel and federal > appellate judge, noted in a recent Op-Ed piece in The Times, the > fairness > and impartiality of the federal judiciary are already being seriously > undermined by allowing federal judges to accept free vacations at > posh > resorts from private interests bent on influencing their future > decisions." > ... > "The need for reform was underscored a week ago when a federal > district > judge in Manhattan, Jed Rakoff, denied a motion to recuse himself > from > further involvement in a lawsuit seeking damages from Texaco for > harming > the rain forest in Ecuador. Lawyers for the plaintiffs - indigenous > people who > live in the rain forest - filed the recusal motion upon learning of > Judge > Rakoff's ill-advised participation in an expenses-paid seminar on > environmental issues that had been held at a Montana ranch by a > foundation > receiving sizable donations from Texaco. One of the lecturers was > Alfred > DeCrane Jr., the retired chairman and chief executive officer of > Texaco, who > ran the company when it operated in Ecuador. In his ruling, Judge > Rakoff > argued that his acceptance of the travel gift was within existing > rules, a > hair-splitting explanation that does not remove qualms about his > judgment or > impartiality." > > So would the appeals court judges like to take a trip > to a nice vacation spot and learn all about computers > and encryption and copyright law, all expenses paid > by not Hollywood but the Free Software movement? > > ESR could invite them to his firing range for more > free entertainment. I am sure all of us would love > to participate. > > -- > "Eric" Eric Eldred Eldritch Press > mailto:Eldred@EldritchPress.org > http://www.eldritchpress.org/EricEldred.vcf > __________________________________________________ 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 Sep 15 12:13:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03731 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:13:32 -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 MAA03728 for ; Fri, 15 Sep 2000 12:13:31 -0400 Message-ID: <20000915161411.18255.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 15 Sep 2000 09:14:11 PDT Date: Fri, 15 Sep 2000 09:14:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Granting authority as the copyright owner To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- sam th wrote: > I especially like the line from the RIAA rep - "Fair use isn't a > right, it's a defense!" Yes, it's a defense to a bogus attack on the RIGHT TO FREE SPEECH. __________________________________________________ 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 Sep 15 12:14:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA03794 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:14:54 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA03790 for ; Fri, 15 Sep 2000 12:14:52 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:15:36 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 09:15:34 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:15:35 AM MIME-Version: 1.0 Content-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 concur in part and dissent in part....(been reading too many supreme court decisions lately I guess) Keeping free speech rights is essentual. Without those, the rest cannot happen. There were publishing monopolies before copyright law was extended. (e.g., Hearst, Pulitzer). That has only made the problem worse and created aspects of it that now are very much an issue. (If companies have monopolies for 5 generations, then WHY should they encourage the creation of new things?) But, the law is quite clear on what to do with ANY abusive monopoly or trust - BREAK IT UP. Not that I expect the Clinton administration to do anything about it...they've been rubber stamping almost any merger. As for turning them into governement creatures, that's not going to work...that's already been tried. Witness, the Soviet Union..Russia..... As for reducing some of corporate "rights" - abolutely. Corporations have resources beyond what any other 'citizen" can muster and should not be allowed to abuse the court system with litigation or lobby congress. How many citizens can testify before congress on an issue but the MPAA can send Jack Valenti to tell his view point....I hope that the INTERNET will change that. wrt to the demise of large companies I agree. I think it would be better for the economy. Look at what happened to the rust belt when GM etc started closing plants-massive unemployment. It's hard to find a job when 2000 others are looking in a town of 50,00..Towns went from prosperous to slums in a few years. Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] What is missing? arvard.edu 09/14/00 06:24 PM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > > Not wrong...copyright statutes have nothing to do with the growth of > monopolies...but the argument is not expansive enough....you are quite > correct. the DMCA by itself is NOT the only problem here. We have large > publishing monopolies. We have large copyright durations (100 yrs). We have > a lot of people who view the changes in media and formats as an opportunity > to make up for business models that were thrown out decades ago. The > incidious nature of having large monopolies regulating information is that > they perform the form of censorship that governments cannot do (or at least > ours generally does not) > Long copyright durations which can be permanently transferred to corporations created the publishing monopolies who are our opposition in this case. There are several ways to rectify the problem. Declare the entire copyright code unconstitutional and tell congress to start over. Find that under the law large corporations do not have standing in court to protect their copyright (did I word this right? Like copyright misuse, but based purely upon their being to large and powerfull). Say that the original copyright duration was limited and anything longer is too long to be reasonable. Declare corporations to be non-persons with only statuatory rights. Declare corporations to be creatures of government which are totally bound by our legal restrictions upon the power of government. I'm interested in having a world with lots of small companies and no large companies. I'm not sure which corrective remedy best achieves this objective without causing a complete collapse. At the moment. The best I seem to be able to work towards is maintenance of our free speech rights. If we can maintain that then the Net itself will to some extent tend to correct the problem. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 12:23:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04022 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:23:37 -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 MAA04019 for ; Fri, 15 Sep 2000 12:23:35 -0400 Message-ID: <20000915162415.17303.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 15 Sep 2000 09:24:15 PDT Date: Fri, 15 Sep 2000 09:24:15 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus brief general 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 --- "Robert S. Thau" wrote: > > E) Seperate topics into different briefs (from different > > organizations) > > Regarding E), there's also the possibility of recruiting other > organizations; if Copyrights' Commons isn't already planning to > supply a brief, they might be a good source for, e.g., the first sale > arguments. Of course, that does risk drowning the court in paper, > which they wouldn't read. Actually, this seems like a very natural idea. Copyright's Commons and Eldritch Press certainly have an interest in persuing the "Limited Times" and direct Constitutional arguments, since that is what they are litigating in another case. I don't see any reason why a Court should get peeved if two different parties who happen to work closely together in some common forums submit briefs on separate subjects. __________________________________________________ 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 Sep 15 12:27:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04174 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:27:17 -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 MAA04171 for ; Fri, 15 Sep 2000 12:27:15 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13ZyLg-00048g-00 for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 18:28:24 +0200 Date: Fri, 15 Sep 2000 18:28:24 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: <20000915153723.15898.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 It might be interesting to develope this point even further. If I compile DeCSS for an non existant ( theoretical CPU ) will the resultant file be a circumvision device ? What if someone produces a CPU that can execute the code ? Or what if someone wrote an emulator for the theoretical CPU ? Even if no machine can execute the ocject code, the essential ideas are still contained within it. ( Some may depend in the description of the machine ) But at some stage the code would - as the argument goes make the transition into a device ? But whatever it is, it doesn't depend on the object code itself. I think these lines of thought might be useful for an argument that there is nothing inherent in object code that makes it more device like than source code. frank On Fri, 15 Sep 2000, Bryan Taylor wrote: > The DeCSS never was object code for an Alpha platform, so it doesn't > stop because it never was. I would say that object code is platform > specific (meaning hardware + OS). With this meaning, DeCSS does not > stop being windows object code even if it is store on a different > platform. You could, of course command the alpha machine to exectue the > instructions of DeCSS.exe, but on an alpha platform this does NOT give > you circumvention funcitonality, it probably gives you core dump > functionality. So to speak precisely, you'd have to say DeCSS.exe is > not object code for circumvention on an Alpha platform. This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 12:29:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04265 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:29:38 -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 MAA04262 for ; Fri, 15 Sep 2000 12:29:36 -0400 Message-ID: <20000915163016.14408.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Fri, 15 Sep 2000 09:30:16 PDT Date: Fri, 15 Sep 2000 09:30:16 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Harold Eaton wrote: > Well, at least for the forth language, there is a hardware processor > (FRISC) that directly executes ascii forth source code with no > intermediaries, no compilation, NO OBJECT CODE. I know, I work with > the folks who designed that chip for spacecraft control. OK, for this peculiar platform, the source is executable 'object' code. I think we can all agree that there are many possibilities under the sun. The key question is: WHEN does a particular combination of files become executable? I would argue that the completion of installation is the earlies act that has 'non-speech' elements of a course of conduct. __________________________________________________ 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 Sep 15 12:31:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04361 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:31:43 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA04358 for ; Fri, 15 Sep 2000 12:31:36 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:18:01 -0700 Subject: Re: [dvd-discuss] Regulating violence in the media To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 08:14:55 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:18:00 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed. The basic problem is the exclusivity that the large "media content providers" (now that's a euphemism I wouldn't have used 10 yrs ago), are able to extract from authors, filmmakers, and now songwriters. Now what really makes this bad is the recent extensions of the copyright term to about 100yrs. The problem with granting the right to sell many copyrighted works nonexclusively is that it provides little, if any protection, for the buyer of the right. If they pay $1M for something and the author then grants a right to another company for $1 the second company and there are only $2M in sales split between them, the first has only broken even but the second has made a killing. The "media content providers" are basically fat bloated gluttons who want more. ....it is time they go on a forced exercise diet. "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Regulating violence arvard.edu in the media 09/14/00 06:08 PM Please respond to dvd-discuss Michael.A.Rolenz wrote: >Having copyright only held by people won't work...Intellectual >property can be bought and sold. Corporations are recognized as >legal entities with some rights. Therefore corporattions can buy >it and sell it (under the 14 amendment). BUT you do have a point >that the lifetime of a corporation is longer than the lifetime >... I think that part of the problem stems from the constant misnomer of "intellectual property". It isn't. One (utopian) idea that could work towards a solution would be that the exclusive right granted to an author could be sold to others only on a non-exclusive basis - i.e. in doing so the author would always continue to have the exclusive right too, and be able to sell it as many times as desired. To be sure, this will spoil the monopoly of the media companies, and make the price they're willing to pay less since they couldn't get exclusivity, but plenty of businesses would still eagerly license the non-exclusive right to worthwhile works. It happens with patents and copyrights all the time right now. _________________________________________________________________________ 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 Fri Sep 15 12:38:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04571 for dvd-discuss-outgoing; Fri, 15 Sep 2000 12:38:01 -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 MAA04568 for ; Fri, 15 Sep 2000 12:37:59 -0400 Message-ID: <20000915163909.12666.qmail@web6403.mail.yahoo.com> Received: from [207.1.61.238] by web6403.mail.yahoo.com; Fri, 15 Sep 2000 09:39:08 PDT Date: Fri, 15 Sep 2000 09:39:08 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Granting authority as the copyright owner To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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, how about getting it pressed first, and then granting the authority? > Sure, but good luck getting a DVD pressing facility > to press your DVD. They depend on the MPAA members > for the vast majority of the business the way CD > pressers depend on the RIAA (look at > http://www.negativland.com/intprop.html, particularly > http://www.negativland.com/riaa/index.html) to see > how the RIAA exploited this relationship. In that > particular case the RIAA backed down, but I wouldn't > bet on the MPAA backing down in this one... > > - Ravi Nanavati __________________________________________________ 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 Sep 15 13:02:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05265 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:02:09 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA05262 for ; Fri, 15 Sep 2000 13:01:59 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:27:44 -0700 Subject: Re: [dvd-discuss] Regulating violence in the media To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 09:27:43 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:27:43 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ditto....TV and the Movie Theatres are now the vast wasteland. Why should I go to the movies to see remakes of TV shows that I didn't watch when they were run. I just pick up the few worthwhile on VHS tape and watch them at my leisure. The last film I watched in the theatres was Star Trek Generations. I got so bored towards the end that I started to estimate the kinetic and potential energy and momentum of the saucer section as it clear cut the countryside. Actually, this leads into another thought I've been having recently on the MPAA members business model. It's getting pretty obvious that Hollywierd doesn't have a creative thought anywhere anymore and is recycling TV shows, remaking old films and with few exceptions worse than the originals but they are making money off the originals as they sell them as DVD and VHS. At some point, they are likely to sell enough copies of the originals that the secondary market may saturate and eliminate their primary market. At that point, they are in deep trouble. I suspect they realize that and what we are seeing now is just the first step in their revamped business plan to provide you with pay for view in the privacy of your own home. You provide the place, you provide the theatre, you provide the time and WE will provide the media content....I don't like that thought at all. Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Regulating violence arvard.edu in the media 09/14/00 07:42 PM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > ... > > A comment: "Information wants to be free"...there is no information in just > about 99% of the films released by Hollywierd. > That's about the percentage I haven't watched. In the last 10 years, for every hour I've spent watching TV or movies I've spent well over 100 hours on Usenet or email lists. From a pragmatic viewpoint, if the entire mass media system collapsed the only thing I'd really notice about it is that people would no longer gush about dumb programs I've never seen. The relief would be enormous. People would start talking about real things for a change. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 13:08:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05588 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:08:08 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA05585 for ; Fri, 15 Sep 2000 13:07:54 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:32:40 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 09:32:39 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:32:39 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's the "sticky wicket" that the DMCA has created. If the general public now has the authority of the copyright holder, then the copy protection of any of those e-books of public domain material can be cirvumvented legally. But then doing so also provides the means to circumvent ANY of the copyr protections of any e-book which is illegal. Certainly the DMCA isn't passing any tests for consistency or freedom from contradictions. Jolley Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] What is missing? 09/14/00 08:56 PM Please respond to dvd-discuss Eric Eldred wrote: > > On Wed, Sep 13, 2000 at 04:54:02PM -0700, Michael.A.Rolenz@aero.org wrote: > >... > > So another question is How do works enter into the public domain? > > Previously there was a BOOK. There was sheetmusic. There were pictures. How > > do works with access control permitted by the DMCA enter into the public > > domain at the end of the copyright? The enactment of the DMCA seems to have > > created a MAJOR contradiction in copyright law. > > I agree. Works enter the public domain when the "limited times" > of copyright term expire. As Kaplan notes in a footnote, the > question of CSS protecting a public domain work was not raised > in this case and so he need not address it. However, there are > certainly already public domain works that are protected by > encryption and CSS-like access control. His finding raises a > major contradiction already, in that the public is being denied > access to works that belong to them; some form of "consent" is > required by some technology, when the law gives no right to > the publisher to require such consent. If publishers used a > different form of TPM to lock up works under copyright, than > the TPM they use for public domain works, then the case would be > different. But since they are using the same TPM, circumvention > for one means circumvention for all. I think it should be the > other way around. Basically, his ruling is contradictory and > unconstitutional at the same time. So, if there is a work that has passed into the public domain after its copyright term has expired and is on a DVD "protected" by CSS, the public can traffic in circumvention devices because we have the authority of one of the "new copyright owners", the public? Or, can we call CSS a circumvention device against one of "our" copyrighted works? Does CSS as a TPM expire as soon as one work protected by CSS passes into the public domain? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 13:12:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05719 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:12:22 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA05716 for ; Fri, 15 Sep 2000 13:12:16 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:41:22 -0700 Subject: Re: [dvd-discuss] Pamela Samuelson To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 09:41:20 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:41:21 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu OK I retract what I wrote earlier. "James S. Tyre" To: Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Pamela Samuelson arvard.edu 09/14/00 11:34 PM Please respond to dvd-discuss At 02:20 AM 9/15/2000 -0400, Ernest Miller wrote: >Her declaration can be found in the DVD archives at www.eff.org. As a side note, Pam joined the EFF Board of Directors a month or so ago, at the same time that Cindy Cohn and Lee Tien (Prof. Bernstein's attorneys) joined EFF legal staff. Pam was one of the earliest and most vocal critics of DMCA, long before it was enacted, so her views should be in accord with the consensus here; or perhaps, better said that ours should be in accord with hers. ;-) >----- Original Message ----- >From: "Bryan Taylor" >To: >Sent: Friday, September 15, 2000 2:13 AM >Subject: [dvd-discuss] Pamela Samuelson > > > > I seem to recall reading somewhere that Pamela Samuelson provided an > > amicus brief to the district court. I was trying to find it (and > > failed), but I did stumble on to her web page. She has written an > > incredible amount of stuff on IP and Cyberlaw that at first glance > > looks pretty agreeable to our mindset. > > > > Here's her papers page: > > http://www.sims.berkeley.edu/~pam/papers.html > > > > __________________________________________________ > > Do You Yahoo!? > > Yahoo! Mail - Free email you can access from anywhere! > > http://mail.yahoo.com/ -------------------------------------------------------------------- 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 Sep 15 13:38:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06512 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:38:47 -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 NAA06509 for ; Fri, 15 Sep 2000 13:38:45 -0400 Message-ID: <20000915173924.28598.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 15 Sep 2000 10:39:24 PDT Date: Fri, 15 Sep 2000 10:39:24 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Symbolic Conduct - RAV v St. Paul To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 case that supports the need to find content-neutrality, even in banning symbolic conduct. It concerns symbolic "hate-speech", in this case a cross burning. It sights Texas v. Johnson, (flag burning may not be banned), which is an obvious case we should aim towards. In the instant opinion, 'fighting words' may be banned, but not if restricted to fighting words that insult on the basis of race, since this restriction is content-based. By analogy, even if 'functionality' removes Constitutional protection, one can't uphold functionality punishment confined only to the subject of cryptanalysis speech. The opinion of the Court is by Scalia, and highly recommended. ___________________ R.A.V. v. ST. PAUL 505 U.S. 377 (Sup. Ct. 1992) http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/us/505/377.html The First Amendment generally prevents government from proscribing speech, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 309-311 (1940), or even expressive conduct, see, e.g., Texas v. Johnson, 491 U.S. 397, 406 (1989), because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace and has found application in many contexts. ... And just as the power to proscribe particular speech on the basis of a non-content element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element, so also the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements. As with the sound truck, however, so also with fighting words: the government may not regulate use based on hostility - or favoritism - towards the underlying message expressed. Compare Frisby v. Schultz, 487 U.S. 474 (1988) (upholding, against facial challenge, a content-neutral ban on targeted residential picketing), with Carey v. Brown, 447 U.S. 455 (1980) (invalidating a ban on residential picketing that exempted labor picketing). When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: a State might choose to prohibit only that obscenity which is the most patently offensive in its prurience - i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. Applying these principles to the St. Paul ordinance, we conclude that, ... the ordinance is facially unconstitutional. Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas - to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality - are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. __________________________________________________ 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 Sep 15 13:55:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA07336 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:55:23 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA07329 for ; Fri, 15 Sep 2000 13:55:21 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:40:35 -0700 Subject: Re: [dvd-discuss] Pamela Samuelson To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 09:40:31 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:40:35 AM MIME-Version: 1.0 Content-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 a little suprised that she hasn't been more active in this case... Bryan Taylor To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: [dvd-discuss] Pamela Samuelson arvard.edu 09/14/00 11:15 PM Please respond to dvd-discuss I seem to recall reading somewhere that Pamela Samuelson provided an amicus brief to the district court. I was trying to find it (and failed), but I did stumble on to her web page. She has written an incredible amount of stuff on IP and Cyberlaw that at first glance looks pretty agreeable to our mindset. Here's her papers page: http://www.sims.berkeley.edu/~pam/papers.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 Fri Sep 15 13:55:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA07343 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:55:25 -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 NAA07335 for ; Fri, 15 Sep 2000 13:55:23 -0400 Message-ID: <20000915175603.8113.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 15 Sep 2000 10:56:03 PDT Date: Fri, 15 Sep 2000 10:56:03 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > But doesn't that mean that the object code produced by a compiler > is source code for the OS? Or for the shell? (In Linux is bash part > of the OS?) And where does the windows manager fit in? And what if > you are running object code compiled for MSWindows 3.1 under WINE > under a Linux box? I think we're going down a rat-hole (my fault, I started it). All I'm saying is that you have to have everything you need to execute the program or it isn't 'functional' for you. Functionality is an attribute of the code-speech in the context of the environment it is installed in, not of the speech itself. Fletcher's reasoning in Bernstein is right on target: technology is continually creating new and varied contexts in which speech is functional. Voice recognition software may eventually allow you to control devices with verbal commands. This can't be allowed to remove strict scrutiny from the words themselves. "Power down" are words that have the functionality to kill if spoken to voice recognition software controlling the UPS for an air traffic control computer or medical equipment. This observation cannot allow the prohibition of these words in other contexts, especially where they have no functionality or different functionality. __________________________________________________ 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 Sep 15 13:55:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA07328 for dvd-discuss-outgoing; Fri, 15 Sep 2000 13:55:21 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA07324 for ; Fri, 15 Sep 2000 13:55:20 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 09:33:50 -0700 Subject: Re: [dvd-discuss] What is missing? To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 09:33:46 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 09:33:49 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. This is the issue. Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] What is missing? arvard.edu 09/14/00 09:02 PM Please respond to dvd-discuss And do you really expect that to happen? Ever? As long as there is a Disney, that criteria for DeCSS becoming legal will never be met. On Thu, 14 Sep 2000, Jolley wrote: > Eric Eldred wrote: > > > > On Wed, Sep 13, 2000 at 04:54:02PM -0700, Michael.A.Rolenz@aero.org wrote: > > >... > > > So another question is How do works enter into the public domain? > > > Previously there was a BOOK. There was sheetmusic. There were pictures. How > > > do works with access control permitted by the DMCA enter into the public > > > domain at the end of the copyright? The enactment of the DMCA seems to have > > > created a MAJOR contradiction in copyright law. > > > > I agree. Works enter the public domain when the "limited times" > > of copyright term expire. As Kaplan notes in a footnote, the > > question of CSS protecting a public domain work was not raised > > in this case and so he need not address it. However, there are > > certainly already public domain works that are protected by > > encryption and CSS-like access control. His finding raises a > > major contradiction already, in that the public is being denied > > access to works that belong to them; some form of "consent" is > > required by some technology, when the law gives no right to > > the publisher to require such consent. If publishers used a > > different form of TPM to lock up works under copyright, than > > the TPM they use for public domain works, then the case would be > > different. But since they are using the same TPM, circumvention > > for one means circumvention for all. I think it should be the > > other way around. Basically, his ruling is contradictory and > > unconstitutional at the same time. > > So, if there is a work that has passed into the public domain after > its copyright term has expired and is on a DVD "protected" by CSS, > the public can traffic in circumvention devices because we have > the authority of one of the "new copyright owners", the public? > Or, can we call CSS a circumvention device against one of "our" > copyrighted works? > > Does CSS as a TPM expire as soon as one work protected by CSS passes > into the public domain? > From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 14:11:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07890 for dvd-discuss-outgoing; Fri, 15 Sep 2000 14:11:18 -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 OAA07886 for ; Fri, 15 Sep 2000 14:11:07 -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 e8FIBjX22587 for ; Fri, 15 Sep 2000 14:11:46 -0400 (EDT) Message-ID: <39C26667.42F57E43@mindspring.com> Date: Fri, 15 Sep 2000 14:11:52 -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] 4C entity Content-Type: text/plain; charset=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 you would agree it would be a simple matter to have RMI that could not > be (resonably) copied with the work as well as a more robust watermark to > ID where the copy came from? It could even be argued that by not keeping > the tracking barcode from the center of the disc when you rip a CD you are > in breach of the law. > You are correct. When I submitted my comments to LOC that supported the RMI portion of the law, I wasn't thinking watermarks or barcodes. I (wrongly) assumed they were referring to a standard copyright notice, and I replied that I had no problem with maintaining attribution notices for the original author. Any RMI data on the container gets left behind when the content is shifted to another media, and could easily be claimed as 'removing RMI.' > > > In the new Australian version of DMCA there is a section on making it > > > illegal to remove electronic rights management information that might be > > > embedded in the work. This makes copying to tape for your car or > > ripping to > > > mp3 a no-no if a watermark is present. I presume the DMCA also has > > > something along this line as they are both implementations of the WIPO > > > treaties. > > > > > > > Copying to tape/md/mp3 does not remove the watermark, according to > > claims made by those competing to be selected as the technology vendor. > > Here is a link to IBM's claims, pretty impressing "survivability", IMO. > > > > http://www.trl.ibm.co.jp/projects/s7730/Hiding/dhaud_e.htm > From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 14:13:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08134 for dvd-discuss-outgoing; Fri, 15 Sep 2000 14:13:40 -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 OAA08130 for ; Fri, 15 Sep 2000 14:13:39 -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 OAA01652 for ; Fri, 15 Sep 2000 14:08:43 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000915045931.5875.qmail@web509.mail.yahoo.com> References: <20000915045931.5875.qmail@web509.mail.yahoo.com> Date: Fri, 15 Sep 2000 14:08:36 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Amicus brief general question 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 9:59 PM -0700 9/14/2000, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > >> >The rules are exactly what James predicted they would be (half the >> >length of a party's brief, filed within 7 days of brief of supported >> >party). Following FRAP 32(a)(7)(A), this gives us 15 pages. (!) >> >> No kidding on the "!". That's why I've been harping on the point. > >I guess we have several options: >A) Cut now from the outline >B) Write, see what we like, and then cut >C) Set page limits per outline section and write to spec >D) Ask the judge for a page limit extention >E) Seperate topics into different briefs (from different organizations) > ... I'd suggest a modified version of B: Write a lengthy, but well modularized piece introducing ourselves and covering every legal and public policy argument we have (your outline plus whatever). Then draft the actual amicus *after* we see the defense brief so that we do not waste space repeating their arguments. The full document could also be a useful resource for the defense and in other cases that will undoubtedly arise. It might even be worth trying to publish it. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 14:34:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08709 for dvd-discuss-outgoing; Fri, 15 Sep 2000 14:34:51 -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 OAA08706 for ; Fri, 15 Sep 2000 14:34:49 -0400 Message-ID: <20000915183600.14758.qmail@web6404.mail.yahoo.com> Received: from [207.1.61.238] by web6404.mail.yahoo.com; Fri, 15 Sep 2000 11:36:00 PDT Date: Fri, 15 Sep 2000 11:36:00 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 agreed that there is no fine line between algorithm, source code and object code, and that all of them are "speech." However, he declined to say whether all of them are "functional speech." He said, the plaintiffs asked to ban two specific forms (DeCSS source and executable), and I conclude that those two are "functional speech" and agree to ban them. [And if you want to know my opinion regarding the other forms, then you're short of luck. I ain't telling you what, if anything, would stop me from banning the DeCSS algorithm's textual description, and if you want to find out, you'll have to get someone to bring another lawsuit.] Were he to give us a reason why the algorithm cannot be banned, the chances are we could develop an argument applying the same reason to the source code and the object code. But he didn't. Do we have any resort here? Would it have been proper for the defendants to ask for a declarative judgement regarding the posting of the algorithm itself from the trial court? And is there anything that can now be done in the appelate court? --- Frank Andrew Stevenson wrote: > It might be interesting to develope this point even further. If I > compile > DeCSS for an non existant ( theoretical CPU ) will the resultant file > be a > circumvision device ? What if someone produces a CPU that can execute > the > code ? Or what if someone wrote an emulator for the theoretical CPU ? > > Even if no machine can execute the ocject code, the essential ideas > are > still contained within it. ( Some may depend in the description of > the > machine ) But at some stage the code would - as the argument goes > make the > transition into a device ? But whatever it is, it doesn't depend on > the > object code itself. > > I think these lines of thought might be useful for an argument that > there > is nothing inherent in object code that makes it more device like > than > source code. > > frank > > On Fri, 15 Sep 2000, Bryan Taylor wrote: > > The DeCSS never was object code for an Alpha platform, so it > doesn't > > stop because it never was. I would say that object code is platform > > specific (meaning hardware + OS). With this meaning, DeCSS does not > > stop being windows object code even if it is store on a different > > platform. You could, of course command the alpha machine to exectue > the > > instructions of DeCSS.exe, but on an alpha platform this does NOT > give > > you circumvention funcitonality, it probably gives you core dump > > functionality. So to speak precisely, you'd have to say DeCSS.exe > is > > not object code for circumvention on an Alpha platform. > > 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/ > __________________________________________________ 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 Sep 15 14:46:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09046 for dvd-discuss-outgoing; Fri, 15 Sep 2000 14:46:11 -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 OAA09043 for ; Fri, 15 Sep 2000 14:46:10 -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 OAA05236 for ; Fri, 15 Sep 2000 14:47:14 -0400 (EDT) Message-ID: <39C26EB1.29304E31@mediaone.net> Date: Fri, 15 Sep 2000 14:47:13 -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] [Fwd: Where's my DeCSS [#595565]] Content-Type: text/plain; charset=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 answer has a strange form of honesty... service@mp3.com wrote: > > Dear Sphere, > > Thanks for your question. The song you required about was pulled > for reasons we are not discussing at this moment. Feel free to contact > the artist via his web page. Please reply to this e-mail with further > questions. > > Regards, > Customer Service > MP3.com - Your Premier Online Music Service Provider > > -------------------------------------------------------- > Please send your comments regarding your service to: > customersat@mp3.com > > -If you are still experiencing problems, please reply > to this email. > -------------------------------------------------------- > > ------- Original Message -------- > From: sphere1952@mediaone.net > To: > Subject: Where's my DeCSS > Date: 09/13/00 05:50:48 > > I went to my my.mp3 to play DeCSS and it wasn't there. > What happened to it? > > -- > Sphere. > > Government has no legitimate interest in > protecting a monopoly from free speech. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 14:56:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA09384 for dvd-discuss-outgoing; Fri, 15 Sep 2000 14:56:40 -0400 Received: from web509.mail.yahoo.com (web509.mail.yahoo.com [216.115.104.224]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA09381 for ; Fri, 15 Sep 2000 14:56:39 -0400 Message-ID: <20000915185719.11493.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 15 Sep 2000 11:57:19 PDT Date: Fri, 15 Sep 2000 11:57:19 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Frank Andrew Stevenson wrote: > It might be interesting to develope this point even further. If I > compile DeCSS for an non existant ( theoretical CPU ) will > the resultant file be a circumvision device ? What if > someone produces a CPU that can execute the code ? Or what if > someone wrote an emulator for the theoretical CPU ? I guess you have to prove the negative that nobody has invented an architecture which allows circumvention. But what if somebody does so later. Does there act create a 3rd party veto on your previously non-functional speech by making it become functional? While I was at lunch, I was pondering the stupidity of treating functionality as an attribute of the source code. How's this for a variation on the theme... You could easily create a program that will take an arbitrary binary input file and 'execute' it in the following way: compress it, clip and padd it with some constant as needed to make it a specific length, XOR it with some fixed constant, decompress it, and then execute the output normally. One could pretty eaily create program this way for which the .pdf of Kaplan's opinion was the 'source code' that resulted in decryption of dvd's. __________________________________________________ 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 Sep 15 15:19:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA10137 for dvd-discuss-outgoing; Fri, 15 Sep 2000 15:19:19 -0400 Received: from mail.onetouch.com ([205.180.182.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA10134 for ; Fri, 15 Sep 2000 15:19:18 -0400 Received: by mail.onetouch.com with Internet Mail Service (5.5.2652.35) id ; Fri, 15 Sep 2000 12:20:25 -0700 Message-ID: From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] What is missing? Date: Fri, 15 Sep 2000 12:20:24 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2652.35) Content-Type: 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, September 15, 2000 3:15 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] What is missing? > > > On Thu, Sep 14, 2000 at 10:43:23PM -0500, Jolley wrote: > >... > > So, if there is a work that has passed into the public domain after > > its copyright term has expired and is on a DVD "protected" by CSS, > > the public can traffic in circumvention devices because we have > > the authority of one of the "new copyright owners", the public? > > Or, can we call CSS a circumvention device against one of "our" > > copyrighted works? > > No. "Trafficking" in circumvention devices that can decrypt the > CSS-protected copyrighted works is still illegal, and thus any > distribution of the "device" is illegal--according to Kaplan, > you have a right to access and copy, you just can't exercise > it by getting the "device" from another person. It is a circumvention only if you access w/o the permission of the copyright holder. If there is no copyright holder, how can it be a circumvention? > > > Does CSS as a TPM expire as soon as one work protected by CSS passes > > into the public domain? > > No. I don't mean to claim that it should. However, there is > no requirement that the TPM be removed when copyright term > expires. So the result is the trite "you can swim but you > can't go near the water" idea. I think it should be "you > can swim in an area protected by lifeguards, and after you > have learned to swim." Actually the inverse of the original question is what would likely be ruled: as long as there is one work protected by CSS that is still under copyright, DeCSS would still be considered to be a "circumvention device". But once they go beyond CSS protection (CSS-2 anyone?) then there will be a finite and non-expanding set of works protected by CSS ... when the last one (not the first one) of those works lapses into the public domain, DeCSS will no longer be a "circumvention device". > It should not be the "device" that is authorized, but rather > the person. No ... that was our argument, but it was turned down in favor of the MPAA's view that it is the device which is authorized. >In cases of fair use, as when the work enters > the public domain, it should not be illegal to decrypt, nor > to distribute a program that can so decrypt. Unless it can also decrypt works which are not yet in the public domain... -- -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 Sep 15 16:25:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA11997 for dvd-discuss-outgoing; Fri, 15 Sep 2000 16:25:23 -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 QAA11994 for ; Fri, 15 Sep 2000 16:25:21 -0400 Message-ID: <20000915202601.27162.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 15 Sep 2000 13:26:01 PDT Date: Fri, 15 Sep 2000 13:26:01 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Standing for Overbreadth - Forsyth v Nationalist Movement To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 case with a good summary of the Supreme Court jurisprudence regarding the "well established" principle that facial overbreath challenges to limits on free expression are afforded an "exception from general standing rules". This is good news for "the fair use community". ________________________ FORSYTH COUNTY v. NATIONALIST MOVEMENT, 505 U.S. 123 (1992) http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/us/505/123.html Respondent mounts a facial challenge to the Forsyth County ordinance. It is well established that, in the area of freedom of expression, an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 -799, and n. 15 (1984); Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e.g., New York v. Ferber, 458 U.S. 747, 772 (1982); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see Thornhill v. Alabama, [505 U.S. 123, 130] 310 U.S. 88, 97 (1940); Freedman v. Maryland, 380 U.S. 51, 56 (1965); Taxpayers for Vincent, 466 U.S., at 798 , n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see Broadrick v. Oklahoma, 413 U.S. 601 (1973); Jews for Jesus, 482 U.S., at 574 -575. __________________________________________________ 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 Sep 15 17:46:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15569 for dvd-discuss-outgoing; Fri, 15 Sep 2000 17:46:43 -0400 Received: from smtp1a.ispchannel.com (smtp.ispchannel.com [24.142.63.7]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15566 for ; Fri, 15 Sep 2000 17:46:42 -0400 Received: from wmsnote ([24.142.81.2]) by smtp1a.ispchannel.com (InterMail vK.4.02.00.00 201-232-116 license 7d3764cdaca754bf8ae20adf0db2aa60) with SMTP id <20000915214955.LGTF7586.smtp1a@wmsnote> for ; Fri, 15 Sep 2000 14:49:55 -0700 Message-Id: <4.1.20000915081350.015d1ae0@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Fri, 15 Sep 2000 14:47:26 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Amicus brief general question In-Reply-To: <20000915150421.7904.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 I've been away for the week and unable to do more than scan the list (so I haven't yet caught up on the latest outlines), but I'll throw in my 2 cents here: I think we can assume that there will be several other amicus briefs supporting the defendant, so we don't need to pack everything into an Openlaw submission. Even if the court might accept an overlength brief (I'd have to ask around), I think a well-crafted 15 pages from our unique perspective is more likely to be effective. Amici aren't there to pick out every error, but to respond to the one or two that most affect them. I'll get to more substantive comments later in the weekend. --Wendy At 08:04 AM 9/15/00 -0700, Bryan Taylor wrote: > >--- "James S. Tyre" wrote: >> >How crazy is it to consider asking for more pages? Kaplan, after >> >all, was pretty long-winded at 89 pages and this is a case >> >with fairly heavy-duty issues (free speech, the future of >> copyright, internet regulation). >> >> Since Wendy is in the Second Circuit, she or others in her firm may >> be able to provide some guidance here, but the rule says that >> the application for leave to file an amicus must be accompanied >> by the proposed amicus. In other words, you don't ask in advance >> for permission to file a brief in excess of 15 pp. >> >> This is the kind of rule that courts are not duty-bound to follow, it >> may be that the 2d will entertain an advance application to file >> a longer brief. But I have no relevant knowledge of the 2d's >> practices here, and if they stick to the letter of the rule, >> this can't be done. > >There's another question of whether or not we think we would provide a >stronger brief if we were allowed more pages. I can see arguments both >ways. Shorter means greater ability to penetrate limited attention >spans, whereas longer means better ability to cover the many points we >think point to reversal. > >__________________________________________________ >Do You Yahoo!? >Yahoo! Mail - Free email you can access from anywhere! >http://mail.yahoo.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 Fri Sep 15 18:25:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16618 for dvd-discuss-outgoing; Fri, 15 Sep 2000 18:25:33 -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 SAA16613 for ; Fri, 15 Sep 2000 18:25:32 -0400 Received: from travel-net.com (trj130.travel-net.com [207.176.160.130]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id SAA32646 for ; Fri, 15 Sep 2000 18:27:45 -0400 Message-ID: <39C29F8D.159BD867@travel-net.com> Date: Fri, 15 Sep 2000 18:15:41 -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] Amicus brief general question References: <4.1.20000915081350.015d1ae0@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 Well said Wendy. And to tell the truth Ive been here all week and havent been able to keep up with the postings. I have 133 unread messages in my inbox today, most from this list. I also want to comment on Jim (the gentleman formerly known as James) Tyre's work especially last night. Excellent reading, every one. Very insightful. Back to the subject at hand, if we are all agreed that the brief should focus on the points that most affect us in our capacity of amici, what are they? I read the 'interest of the amici' in v3 and I dont have any strong feeling on which of the points best reflects what *our* interest is, that answer to teh important question a judge will always (hopefully) ask "why are these people cluttering up my desk with more paper. oh! thats why. they are interested because..." Can someone help me? After reading all of Jim's work last night Im feeling guily, like I'm not pulling my weight and if I can get focused maybe I can help. dan Wendy Seltzer wrote: > I've been away for the week and unable to do more than scan the list (so I > haven't yet caught up on the latest outlines), but I'll throw in my 2 cents > here: I think we can assume that there will be several other amicus briefs > supporting the defendant, so we don't need to pack everything into an > Openlaw submission. Even if the court might accept an overlength brief > (I'd have to ask around), I think a well-crafted 15 pages from our unique > perspective is more likely to be effective. Amici aren't there to pick out > every error, but to respond to the one or two that most affect them. > > I'll get to more substantive comments later in the weekend. > > --Wendy > > At 08:04 AM 9/15/00 -0700, Bryan Taylor wrote: > > > >--- "James S. Tyre" wrote: > >> >How crazy is it to consider asking for more pages? Kaplan, after > >> >all, was pretty long-winded at 89 pages and this is a case > >> >with fairly heavy-duty issues (free speech, the future of > >> copyright, internet regulation). > >> > >> Since Wendy is in the Second Circuit, she or others in her firm may > >> be able to provide some guidance here, but the rule says that > >> the application for leave to file an amicus must be accompanied > >> by the proposed amicus. In other words, you don't ask in advance > >> for permission to file a brief in excess of 15 pp. > >> > >> This is the kind of rule that courts are not duty-bound to follow, it > >> may be that the 2d will entertain an advance application to file > >> a longer brief. But I have no relevant knowledge of the 2d's > >> practices here, and if they stick to the letter of the rule, > >> this can't be done. > > > >There's another question of whether or not we think we would provide a > >stronger brief if we were allowed more pages. I can see arguments both > >ways. Shorter means greater ability to penetrate limited attention > >spans, whereas longer means better ability to cover the many points we > >think point to reversal. > > -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 18:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17532 for dvd-discuss-outgoing; Fri, 15 Sep 2000 18:58:06 -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 SAA17529 for ; Fri, 15 Sep 2000 18:58:06 -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 SAA00316 for ; Fri, 15 Sep 2000 18:59:16 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA20890; Fri, 15 Sep 2000 18:59:16 -0400 (EDT) Date: Fri, 15 Sep 2000 18:59:16 -0400 (EDT) Message-Id: <200009152259.SAA20890@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus brief general question In-Reply-To: <39C29F8D.159BD867@travel-net.com> References: <4.1.20000915081350.015d1ae0@law.harvard.edu> <39C29F8D.159BD867@travel-net.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg writes: > Back to the subject at hand, if we are all agreed that the brief > should focus on the points that most affect us in our capacity of > amici, what are they? I read the 'interest of the amici' in v3 and > I dont have any strong feeling on which of the points best reflects > what *our* interest is, that answer to teh important question a > judge will always (hopefully) ask "why are these people cluttering > up my desk with more paper. oh! thats why. they are interested > because..." Well, speaking only for myself, here's my motivation: I'm a software developer who likes to build new tools, and tinker with and improve existing ones. The MPAA claims a right to stop us from doing that, by imposing a licensing regime which is incompatible in a variety of ways with what I'd want to do --- both by imposing undesirable requirements (region coding, "no digital output") which impair the functions of a device, and by imposing a fee structure and nondisclosure requirements which are incompatible with some forms of development. These same legal strictures also distort commercial development, keeping legitimate, useful devices out of the hands of the public, contrary to expressed legislative intent (Kohl says "product design by ... engineers, not ... lawyers"). I think we as techies may be well positioned to say how this all distorts the market for DVD players, and how the public is ill-served by the distortion. On a more personal level, that's why my attempts to grapple with the law have concentrated on the particular (mis)interpretation of 1201(a) which lets them claim the right to authorize devices --- a right which, it seems clear to me at least, Congress never meant to grant as part of the DMCA. On another topic: if we don't do an omnibus brief, some arguments will have to be left out. Would it make sense for people to do brief writeups of the relevant points of law anyway, as a resource for other amici? rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 19:00:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17649 for dvd-discuss-outgoing; Fri, 15 Sep 2000 19:00:05 -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 TAA17643 for ; Fri, 15 Sep 2000 19:00:03 -0400 Received: from travel-net.com (trj130.travel-net.com [207.176.160.130]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id TAA01904 for ; Fri, 15 Sep 2000 19:02:20 -0400 Message-ID: <39C2A7A1.96B47ED9@travel-net.com> Date: Fri, 15 Sep 2000 18:50:09 -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] Amicus brief general question References: <20000915162415.17303.qmail@web514.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: > > > E) Seperate topics into different briefs (from different > > > organizations) > > > > Regarding E), there's also the possibility of recruiting other > > organizations; if Copyrights' Commons isn't already planning to > > supply a brief, they might be a good source for, e.g., the first sale > > arguments. Of course, that does risk drowning the court in paper, > > which they wouldn't read. > > Actually, this seems like a very natural idea. Copyright's Commons and > Eldritch Press certainly have an interest in persuing the "Limited > Times" and direct Constitutional arguments, since that is what they are > litigating in another case. > > I don't see any reason why a Court should get peeved if two different > parties who happen to work closely together in some common forums > submit briefs on separate subjects. > > __________________________________________________ > Do You Yahoo!? > Yahoo! Mail - Free email you can access from anywhere! > http://mail.yahoo.com/ ummmmmmmm if I were a judge or tribunal participant and I was smart (which Im not) and having a bad day I would find an appropriate place for both documents, one that was close to, but not on my desk.. theres a word for what you are proposing. It's..................... circumvention seriously there would have to be a *lot* of work put into the 'interest of the amici* and cooperation to make sure taht the two were easily identifiable as different. and that kinda cooperation would be........ circumvention dan -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 19:29:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18448 for dvd-discuss-outgoing; Fri, 15 Sep 2000 19:29:02 -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 TAA18418 for ; Fri, 15 Sep 2000 19:29:01 -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 TAA02473 for ; Fri, 15 Sep 2000 19:30:10 -0400 (EDT) Message-ID: <39C2B101.70815E84@mediaone.net> Date: Fri, 15 Sep 2000 19:30:09 -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] Amicus brief general question References: <4.1.20000915081350.015d1ae0@law.harvard.edu> <39C29F8D.159BD867@travel-net.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg wrote: > > Well said Wendy. And to tell the truth Ive been here all week and havent been > able to keep up with the postings. I have 133 unread messages in my inbox > today, most from this list. > I also want to comment on Jim (the gentleman formerly known as James) Tyre's > work especially last night. Excellent reading, every one. Very insightful. > > Back to the subject at hand, if we are all agreed that the brief should focus > on the points that most affect us in our capacity of amici, what are they? I > read the 'interest of the amici' in v3 and I dont have any strong feeling on > which of the points best reflects what *our* interest is, that answer to teh > important question a judge will always (hopefully) ask "why are these people > cluttering up my desk with more paper. oh! thats why. they are interested > because..." > > Can someone help me? After reading all of Jim's work last night Im feeling > guily, like I'm not pulling my weight and if I can get focused maybe I can > help. > > dan ... Well... It seems to me that a lot of us here speak in code. Maybe even speak in code better than in English. Not to put too fine a point on it, we're scared shitless by this ruling. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 19:40:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18746 for dvd-discuss-outgoing; Fri, 15 Sep 2000 19:40:02 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18743 for ; Fri, 15 Sep 2000 19:40:01 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 15 Sep 2000 16:40:40 -0700 Subject: Re: [dvd-discuss] Amicus brief general question To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 15 Sep 2000 16:40:38 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/15/2000 04:40:39 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You have an excellent point and one that should be presented to Congress as well. This is AMERICA. We have whole areas of the population that do for fun on their own time what others do for a living: Programming, automobile repair, amateur radio, computer designers, furniture making, metalworking, electronics repair, building and designing electronics and guess what...encryption and even frequency hopping radios (Hedy Lamarr !)...tinkering is a cherished American pasttime. Speaking for myself, I really don't want to buy ANYTHING that I can not tinker with or fix if it gets broken. How then is the state of the art to advance if only the anointed and chosen can do any work ? How many tinkerers will get done if the tinkerers have to pay license fees of $10,000. Or if they discuss what they tinker, the MPAA takes them to court and they have to pay their lawyers. Quite frankly, if the CSS were REALLY any good, then people could tinker all they want and never get anywhere. But it isn't and now they want to stop people from doing any tinkering.....I am beginning to positively loath Jack Valenti and Bernard Sorkin "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Amicus brief general arvard.edu question 09/15/00 04:00 PM Please respond to dvd-discuss Dan Steinberg writes: > Back to the subject at hand, if we are all agreed that the brief > should focus on the points that most affect us in our capacity of > amici, what are they? I read the 'interest of the amici' in v3 and > I dont have any strong feeling on which of the points best reflects > what *our* interest is, that answer to teh important question a > judge will always (hopefully) ask "why are these people cluttering > up my desk with more paper. oh! thats why. they are interested > because..." Well, speaking only for myself, here's my motivation: I'm a software developer who likes to build new tools, and tinker with and improve existing ones. The MPAA claims a right to stop us from doing that, by imposing a licensing regime which is incompatible in a variety of ways with what I'd want to do --- both by imposing undesirable requirements (region coding, "no digital output") which impair the functions of a device, and by imposing a fee structure and nondisclosure requirements which are incompatible with some forms of development. These same legal strictures also distort commercial development, keeping legitimate, useful devices out of the hands of the public, contrary to expressed legislative intent (Kohl says "product design by ... engineers, not ... lawyers"). I think we as techies may be well positioned to say how this all distorts the market for DVD players, and how the public is ill-served by the distortion. On a more personal level, that's why my attempts to grapple with the law have concentrated on the particular (mis)interpretation of 1201(a) which lets them claim the right to authorize devices --- a right which, it seems clear to me at least, Congress never meant to grant as part of the DMCA. On another topic: if we don't do an omnibus brief, some arguments will have to be left out. Would it make sense for people to do brief writeups of the relevant points of law anyway, as a resource for other amici? rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 19:42:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18879 for dvd-discuss-outgoing; Fri, 15 Sep 2000 19:42:16 -0400 Received: from web511.mail.yahoo.com (web511.mail.yahoo.com [216.115.104.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA18876 for ; Fri, 15 Sep 2000 19:42:15 -0400 Message-ID: <20000915234255.24673.qmail@web511.mail.yahoo.com> Received: from [64.81.25.37] by web511.mail.yahoo.com; Fri, 15 Sep 2000 16:42:55 PDT Date: Fri, 15 Sep 2000 16:42:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus brief general 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 --- Dan Steinberg wrote: > Bryan Taylor wrote: > > I don't see any reason why a Court should get peeved if two > > different parties who happen to work closely together in > > some common forums submit briefs on separate subjects. > > ummmmmmmm if I were a judge or tribunal participant and I was smart > (which Im not) and having a bad day I would find an appropriate > place for both documents, one that was close to, but not on my desk.. > theres a word for what you are proposing. It's..................... > circumvention > > seriously there would have to be a *lot* of work put into the > 'interest of the amici* and cooperation to make sure taht the > two were easily identifiable as different. and that kinda > cooperation would be........ circumvention I don't see why you think so if different people worked on each brief. If the ACM and the EFF were both interested in being amici, would they have to file together if they discovered their common interest through member's participation in a mailing list. Having discovered their common interest, wouldn't they be doing the court a favor by checking with each other to avoid overlap? Why would this be any different for private individuals? It's not like Copyright's Commons doesn't have a legitimate interest that would discriminate them from this list. They are a party in a case that is _focused_ on Congressional power limits under the Copyright Clause. If we decided to create group A and group B and each submit, that might be different. Copyrights Commons has some participants that show up here (Eric, Wendy) and some that don't. Don't get me wrong -- I'm not planning on working on a brief there -- I don't think that would be my place. But several people have voiced the desire to get into the Congressional Powers question, but we cut it from our outline. Anyway, I'm not going to worry too much more about this, since my work will be directed towards the outline we have, but I don't think that because we have a mailing list we have some duty to merge all briefs that might be discussed here. __________________________________________________ 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 Sep 15 20:20:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19773 for dvd-discuss-outgoing; Fri, 15 Sep 2000 20:20:37 -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 UAA19770 for ; Fri, 15 Sep 2000 20:20:36 -0400 Message-ID: <20000916002117.25479.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Fri, 15 Sep 2000 17:21:17 PDT Date: Fri, 15 Sep 2000 17:21:17 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Software speech is not 'technology' under statue To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 DMCA outlaws devices and technology that have certain circumvention uses. Kaplan has included within the somewhat vague category called 'technology' what he freely admits is a class of speech, namely software. Given that Congress talked repeatedly about 'black boxes' and even wrote down 1201(c)(4), which says speech using computer products is not diminished, it seems like we have a case to be made that software may safely be interpreted as not being under the scope of the prohibition. Congress could have easily avoided this by listing software among the list of naughties, which would eliminate any ambiguity. Should the court rule on these grounds, Congress could easily add the word back if that was it's true intent. Given two valid statutory interpretations, there is a principle of law that says Courts should choose the meaning that avoids unsettled Constitutional questions. Here's some caselaw to back this up. ______________________ PUBLIC CITIZEN v. DEPARTMENT OF JUSTICE 491 U.S. 440 (1989) http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=491&page=440 "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible [491 U.S. 440, 466] by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62 (1932) (footnote collecting citations omitted). It has long been an axiom of statutory interpretation that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988). See also St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 -501 (1979); Machinists v. Street, 367 U.S. 740, 749 -750 (1961). This approach, we said recently, "not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution." Edward J. DeBartolo Corp., supra, at 575. Our reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of government. See American Foreign Service Assn. v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam). Hence, we are loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils. __________________________________________________ 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 Sep 15 20:25:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19958 for dvd-discuss-outgoing; Fri, 15 Sep 2000 20:25:05 -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 UAA19955 for ; Fri, 15 Sep 2000 20:25:03 -0400 Received: from travel-net.com (trj130.travel-net.com [207.176.160.130]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id UAA06396 for ; Fri, 15 Sep 2000 20:27:21 -0400 Message-ID: <39C2BB86.A75F6790@travel-net.com> Date: Fri, 15 Sep 2000 20:15:02 -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] Amicus brief general question References: <20000915234255.24673.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: > > Bryan Taylor wrote: > > > > I don't see any reason why a Court should get peeved if two > > > different parties who happen to work closely together in > > > some common forums submit briefs on separate subjects. > > > > > ummmmmmmm if I were a judge or tribunal participant and I was smart > > (which Im not) and having a bad day I would find an appropriate > > place for both documents, one that was close to, but not on my desk.. > > theres a word for what you are proposing. It's..................... > > circumvention > > > > seriously there would have to be a *lot* of work put into the > > 'interest of the amici* and cooperation to make sure taht the > > two were easily identifiable as different. and that kinda > > cooperation would be........ circumvention > > I don't see why you think so if different people worked on each brief. > If the ACM and the EFF were both interested in being amici, would they > have to file together if they discovered their common interest through > member's participation in a mailing list. Having discovered their > common interest, wouldn't they be doing the court a favor by checking > with each other to avoid overlap? Why would this be any different for > private individuals? > > It's not like Copyright's Commons doesn't have a legitimate interest > that would discriminate them from this list. They are a party in a case > that is _focused_ on Congressional power limits under the Copyright > Clause. If we decided to create group A and group B and each submit, > that might be different. Copyrights Commons has some participants that > show up here (Eric, Wendy) and some that don't. > > Don't get me wrong -- I'm not planning on working on a brief there -- I > don't think that would be my place. But several people have voiced the > desire to get into the Congressional Powers question, but we cut it > from our outline. > > Anyway, I'm not going to worry too much more about this, since my work > will be directed towards the outline we have, but I don't think that > because we have a mailing list we have some duty to merge all briefs > that might be discussed here. > well its all a matter of perception. In the above example the ACM and EFF have highly visible, yet separate organizations. We are not quite in the same boat. I think if we were even close my question on 'interest of the amici' wouldnt have been posted. I would have looked up a mission statement to refresh my memory, and gotten to work... -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 21:01:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA20678 for dvd-discuss-outgoing; Fri, 15 Sep 2000 21:01:51 -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 VAA20675 for ; Fri, 15 Sep 2000 21:01:49 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id VAA08132; Fri, 15 Sep 2000 21:02:59 -0400 Date: Fri, 15 Sep 2000 21:02:59 -0400 From: Jim Bauer Message-Id: <200009160102.VAA08132@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Newsgroups: local.dvd-discuss In-Reply-To: <20000915163016.14408.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 wrote: > >--- Harold Eaton wrote: > >> Well, at least for the forth language, there is a hardware processor >> (FRISC) that directly executes ascii forth source code with no >> intermediaries, no compilation, NO OBJECT CODE. I know, I work with >> the folks who designed that chip for spacecraft control. > >OK, for this peculiar platform, the source is executable 'object' code. >I think we can all agree that there are many possibilities under the >sun. > >The key question is: WHEN does a particular combination of files become >executable? On many/most systems an executable binary file is not really executable until shortly after one tries to execute it. What I mean is that many programs need a bit on linking with shared/dynamic libraries before they can actually begin executing. This is a fairly transparent operation (unless something goes wrong). These run-time linking changes stay only in memory. >I would argue that the completion of installation is the earlies act >that has 'non-speech' elements of a course of conduct. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 21:45:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA21528 for dvd-discuss-outgoing; Fri, 15 Sep 2000 21:45:08 -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 VAA21525 for ; Fri, 15 Sep 2000 21:45:07 -0400 Received: from jy01 (user-2inihj7.dialup.mindspring.com [165.121.70.103]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id VAA00776 for ; Fri, 15 Sep 2000 21:46:16 -0400 (EDT) Message-Id: <200009160146.VAA00776@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 15 Sep 2000 21:37:31 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Odd Docs In-Reply-To: <200009160102.VAA08132@emperor.hwrd1.md.home.com> References: <20000915163016.14408.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 We offer the court docket for MPAA v. 2600, listing some 250 actions (the timeclock ticking, fees raging -- remember to $upport EFF): http://cryptome.org/mpaa-v-2600-dkt.htm We also offer the copyright jackal agenda for the Special Session of the Copy Protection Technical Working Group on September 20 run by MPAA: http://cryptome.org/cptwg092000.htm Agenda items include: A System Approach to Prevent the Napsterization of Video Beyond Copy Protection-Connecting Users Through Watermark Content Content Protection & Rights Enforcement Using Intel Software Integrity From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 22:02:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22275 for dvd-discuss-outgoing; Fri, 15 Sep 2000 22:02:09 -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 WAA22272 for ; Fri, 15 Sep 2000 22:02:07 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id WAA08304; Fri, 15 Sep 2000 22:03:18 -0400 Date: Fri, 15 Sep 2000 22:03:18 -0400 From: Jim Bauer Message-Id: <200009160203.WAA08304@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Regulating violence in the media Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael.A.Rolenz@aero.org wrote: > >Having copyright only held by people won't work...Intellectual property can >be bought and sold. That needs to be stopped as well. What is IP becides facts. It defies logic to my that someone can own a fact. > Corporations are recognized as legal entities with some >rights. Do we need an amendment that says the Rights belong exclusively to people and not to business/organization? And furthermore, business must be treated as an extension of the government that created them. > Therefore corporattions can buy it and sell it (under the 14 >amendment). BUT you do have a point that the lifetime of a corporation is >longer than the lifetime of most persons. (Warner Bros has been around >since the 20s.) and can hold the copyright longer. With the recent >increases in copyright duration, corporate monopolies, changes in law and >the fact that even a small group of individuals cannot muster the resources >of a large corporation, TOGETHER they have created an extreme imbalance of >the "intellectual property" laws that is NOT serving the intent of the >having them in the first place >BTW, it's not just the DMCA. Check out the fact that songwriters are now >"working for hire" for the RIAA members thanks to a congressional staffer >who slipped that one in as a rider on a bill and now works for the RIAA. I >think that this is only the beginning. > > >A comment: "Information want to be free"...there is no information in just >about 99% of the films released by Hollywierd. Information dosn't want to be free, it dosn't want anything. However, it must be set free. There is no fundemental difference between locking up all the information and locking up all the people. Ok, I am finished with my rants (for now). -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 15 23:26:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24306 for dvd-discuss-outgoing; Fri, 15 Sep 2000 23:26:59 -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 XAA24303 for ; Fri, 15 Sep 2000 23:26:57 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 16 Sep 2000 05:19:28 +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, 16 Sep 2000 04:39:31 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 16 Sep 2000 04:39:31 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus brief general question Message-ID: <20000916043931.A14089@lemuria.org> References: <4.1.20000915081350.015d1ae0@law.harvard.edu> <39C29F8D.159BD867@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C29F8D.159BD867@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: > Can someone help me? After reading all of Jim's work last night Im feeling > guily, like I'm not pulling my weight and if I can get focused maybe I can > help. here's my "why", in as short as I can put it: the MPAA wants to make it illegal that I understand and modify technology, because my ABILITY to do so poses a THEORETICAL threat (piracy) to their revenue model. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 16 01:28:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26759 for dvd-discuss-outgoing; Sat, 16 Sep 2000 01:28:21 -0400 Received: from mail2.rdc3.on.home.com (mail2.rdc3.on.home.com [24.2.9.41]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA26756 for ; Sat, 16 Sep 2000 01:28:20 -0400 From: classical_guitar@hotmail.com Received: from cr1006943-a.etob1.on.wave.home.com ([24.114.22.128]) by mail2.rdc3.on.home.com (InterMail vM.4.01.03.00 201-229-121) with SMTP id <20000916052926.JWFY22521.mail2.rdc3.on.home.com@cr1006943-a.etob1.on.wave.home.com> for ; Fri, 15 Sep 2000 22:29:26 -0700 Message-ID: <969066661@cr1006943-a.etob1.on.wave.home.com> Date: Sat, 16 Sep 2000 01:11:00 -0700 Subject: [dvd-discuss] Classical Guitar To: dvd-discuss@eon.law.harvard.edu Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hello, I am just curious. Do you like classical guitar? If you do then maybe you will find my music interesting. Here you can download my CDs for free: http://www.mp3.com/yaroslav All music arranged and recorded by myself. And it is free for download. Thank you for your time. All the best. Yaroslav. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 16 02:00:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA27453 for dvd-discuss-outgoing; Sat, 16 Sep 2000 02:00:17 -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 CAA27450 for ; Sat, 16 Sep 2000 02:00:16 -0400 Received: from swbell.net ([64.216.209.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G0Y00F03U0TUI@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sat, 16 Sep 2000 01:00:29 -0500 (CDT) Date: Sat, 16 Sep 2000 00:51:51 -0500 From: Jolley Subject: [dvd-discuss] Statement of Senator Patrick Leahy To: dvd-discuss Message-id: <39C30A77.BF2EE11A@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=iso-8859-1 Content-transfer-encoding: 8BIT X-Accept-Language: en Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I saw a statement from Senator Leahy that looked interesting. http://www.senate.gov/~judiciary/7112000_pjl.htm In 1998, the Chairman and I worked closely together on the Digital Millennium Copyright Act, “DMCA,” to advance the complementary goals of protecting intellectual property rights in a digitally-networked world and promoting the continued growth of electronic commerce and development of innovative technologies. As new online services are launched and new websites created, the DMCA is helping order the online environment. For example, earlier this year a federal court relied on the DMCA to shut down websites that were used to post a computer program permitting users to break the encryption used to protect copyrighted motion pictures on DVDs, and copy the movies without permission. See Universal City Studios, Inc. v. Reimerdes, 82 F. Supp.2d 211 (S.D.N.Y. 2000). Looks like the Senator has a different view of the DMCA and how it has been used. How does the DMCA promote the development of innovative technologies? I really like the continuum of posting -> encryption breaking -> copying (illegal?) without permission. I also like the Senator's quote from The Continental Congress, “Nothing is more properly a man’s own than the fruit of his study.” (Unless you have studied CSS encryption and developed an innovative technology.) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 16 02:59:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA28580 for dvd-discuss-outgoing; Sat, 16 Sep 2000 02:59:02 -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 CAA28577 for ; Sat, 16 Sep 2000 02:59:00 -0400 Received: (from daemon@localhost) by smtp02.primenet.com (8.9.3/8.9.3) id XAA28156 for ; Fri, 15 Sep 2000 23:57:32 -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 smtpdAAAFsaO.2; Fri Sep 15 23:57:24 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 XAA14761 for ; Fri, 15 Sep 2000 23:59:59 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Date: Fri, 15 Sep 2000 23:54:44 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000915175603.8113.qmail@web511.mail.yahoo.com> In-Reply-To: <20000915175603.8113.qmail@web511.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00091600000200.01312@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 Hypothetically, consider DeCSS translated into a language syntactically distinct from C but semantically identical. (Say, using the German equivalents for the the English if, for, case, etc. reserved words.) This 'code' is today totally NON-functional, since there are no compilers which will accept it. And yet any idiot can translate it into DeCSS, or with a few keystrokes convert gcc to parse it. Is 'functionality' then inherent in the words or in the context? Is it a property of the text under discussion, of a larger scope (unexamined at trial) or a complete red herring? -- | 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 Sep 16 05:15:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA31594 for dvd-discuss-outgoing; Sat, 16 Sep 2000 05:15:37 -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 FAA31591 for ; Sat, 16 Sep 2000 05:15:35 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13aE5W-0007GD-00 for dvd-discuss@eon.law.harvard.edu; Sat, 16 Sep 2000 11:16:46 +0200 Date: Sat, 16 Sep 2000 11:16:45 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: <00091600000200.01312@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 How about doing something even simpler, include an #error directive into the source code. It will then NOT compile on any decent C compiler, yet all the speech is intact. 100 % speech 0 % functionality: (Again I am tempted to show exactly how this can be done with the DeCSS source, as found on http://thefrog.8k.com, but will refrain from so.) On Fri, 15 Sep 2000, D. C. Sessions wrote: > Hypothetically, consider DeCSS translated into a language syntactically > distinct from C but semantically identical. (Say, using the German > equivalents for the the English if, for, case, etc. reserved words.) 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 Sat Sep 16 08:45:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA02795 for dvd-discuss-outgoing; Sat, 16 Sep 2000 08:45:12 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA02792 for ; Sat, 16 Sep 2000 08:45:11 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id IAA07703 for ; Sat, 16 Sep 2000 08:46:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA17910; Sat, 16 Sep 2000 08:46:23 -0400 (EDT) Date: Sat, 16 Sep 2000 08:46:23 -0400 (EDT) Message-Id: <200009161246.IAA17910@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" In-Reply-To: <00091600000200.01312@frankenstein.lumbercartel.com> References: <20000915175603.8113.qmail@web511.mail.yahoo.com> <00091600000200.01312@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: > Hypothetically, consider DeCSS translated into a language syntactically > distinct from C but semantically identical. (Say, using the German > equivalents for the the English if, for, case, etc. reserved words.) This is one of the examples in Touretzky's gallery of CSS descramblers (though instead of using German, he changes the type declaration syntax --- "byte" for "char" --- and some of the operators --- "<>" for "!="). The gallery is http://www.cs.cmu.edu/~dst/DeCSS/Gallery/ The particular example is http://www.cs.cmu.edu/~dst/DeCSS/Gallery/new-language.txt Touretzky discusses the implications of this particular example in the trial transcript, IIRC... rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 16 11:21:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06260 for dvd-discuss-outgoing; Sat, 16 Sep 2000 11:21:23 -0400 Received: from hotmail.com (f304.law9.hotmail.com [64.4.8.179]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06257 for ; Sat, 16 Sep 2000 11:21:20 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sat, 16 Sep 2000 08:22:02 -0700 Received: from 38.38.24.155 by lw9fd.law9.hotmail.msn.com with HTTP; Sat, 16 Sep 2000 15:22:02 GMT X-Originating-IP: [38.38.24.155] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] What is missing? Date: Sat, 16 Sep 2000 11:22:02 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 16 Sep 2000 15:22:02.0017 (UTC) FILETIME=[DCE86110:01C01FF1] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > No. "Trafficking" in circumvention devices that can decrypt the > > CSS-protected copyrighted works is still illegal, and thus any > > distribution of the "device" is illegal--according to Kaplan, > > you have a right to access and copy, you just can't exercise > > it by getting the "device" from another person. > >It is a circumvention only if you access w/o the permission >of the copyright holder. If there is no copyright holder, >how can it be a circumvention? Well, until you've "accessed" the work - how do you know what it is even? Until then, how do you tell whether it is protected by copyright or not?? It seems to me that either access w/o PUBLISHER permission is either always a risky activity (in case it IS copyrighted), or you can always access once - in order to determine that what is there really is copyrighted. _________________________________________________________________________ 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 Sat Sep 16 13:30:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09119 for dvd-discuss-outgoing; Sat, 16 Sep 2000 13:30:53 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09116 for ; Sat, 16 Sep 2000 13:30:52 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 16 Sep 2000 10:31:28 -0700 Subject: Re: [dvd-discuss] Regulating violence in the media To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Sat, 16 Sep 2000 10:31:26 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/16/2000 10:31:26 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Facts are not IP. Facts cannot be copyrighted, patented, or trademarked. The supreme court has ruled so on many occassions. To paraphrase James McNeil Whistler - the laws are not protecting the IP, they are protecting the time and money that goes into creating IP. Jim Bauer To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Regulating violence arvard.edu in the media 09/15/00 07:04 PM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > >Having copyright only held by people won't work...Intellectual property can >be bought and sold. That needs to be stopped as well. What is IP becides facts. It defies logic to my that someone can own a fact. > Corporations are recognized as legal entities with some >rights. Do we need an amendment that says the Rights belong exclusively to people and not to business/organization? And furthermore, business must be treated as an extension of the government that created them. > Therefore corporattions can buy it and sell it (under the 14 >amendment). BUT you do have a point that the lifetime of a corporation is >longer than the lifetime of most persons. (Warner Bros has been around >since the 20s.) and can hold the copyright longer. With the recent >increases in copyright duration, corporate monopolies, changes in law and >the fact that even a small group of individuals cannot muster the resources >of a large corporation, TOGETHER they have created an extreme imbalance of >the "intellectual property" laws that is NOT serving the intent of the >having them in the first place >BTW, it's not just the DMCA. Check out the fact that songwriters are now >"working for hire" for the RIAA members thanks to a congressional staffer >who slipped that one in as a rider on a bill and now works for the RIAA. I >think that this is only the beginning. > > >A comment: "Information want to be free"...there is no information in just >about 99% of the films released by Hollywierd. Information dosn't want to be free, it dosn't want anything. However, it must be set free. There is no fundemental difference between locking up all the information and locking up all the people. Ok, I am finished with my rants (for now). -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 16 19:04:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19109 for dvd-discuss-outgoing; Sat, 16 Sep 2000 19:04:14 -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 TAA19106 for ; Sat, 16 Sep 2000 19:04:12 -0400 Received: from swbell.net ([64.216.209.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G10004UT4QQEG@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sat, 16 Sep 2000 17:49:38 -0500 (CDT) Date: Sat, 16 Sep 2000 17:40:34 -0500 From: Jolley Subject: Re: [dvd-discuss] 1201(b)(1) Claims To: dvd-discuss@eon.law.harvard.edu Message-id: <39C3F6E2.868612A5@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: <20000913164626.12687.qmail@web513.mail.yahoo.com> <200009131715.NAA04502@soggy-fibers.ai.mit.edu> <20000913170924.C11829@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > > On Wed, Sep 13, 2000 at 01:15:33PM -0400, Robert S. Thau wrote: > > Bryan Taylor writes: > > > Given that Kaplan doesn't mention 1201(b)(1) explicitly in his opinion > > > and the plaintiffs didn't mention it either, other than implicitly in > > > their complaint, my recomendation is that we take the attitue that "of > > > course" it wasn't part of the proceeding, which we can support with the > > > Kaplan "but it isn't" quote from the PI hearing that Sam provided. See > > > below. > > > > But it may be enough to note that, pace Ashcroft, an otherwise > > legitimate article of commerce (like the LiVid player) does not become > > a 1201(b) violation just because it exposes a work to the *potential* > > of unauthorized copying, and that if that were Johansen's purpose, he > > could have used the "ripper" tools that were already out there (and > > which he examined and rejected because they *can't* be used to build a > > player). > > > However, the movie studios took that and twisted it into a form > of "rights management" scheme that goes far beyond the Constitution > and is meant (by at least some legislators) to take away the rights > of fair use of legally acquired products. That is, the "rights of > the copyright holder" in 1201(b) for copy control are understood > by MPAA to mean they can prohibit ANY copying (along with other > uses not specifically AUTHORIZED or CONSENTED TO by copyright > holders). So, reading the copy control part of this case > separately, one can easily make the case for the statute being > overbroad, directly conflicting with fair use insofar as statute > prohibits fair use in making one archival copy of product, and > preventing consumer after first sale from ever obtaining the > means to exercise fair use. If exceptions in 1201 cannot be > applied because of the separation of "trafficking" from the > other parts of the statute, then the statute is unconstitutional. > > What I am arguing is that copy control in 1201(b) is clearly > an issue we can argue against. CSS is not copy control technology, > in spite of using encryption and keys. We can also argue that > access control is similarly unconstitutional, but we still have > to answer the point that circumvention of access control is > allowed by Kaplan in order to circumvent copy control in the > cases of fair use. What I am arguing is that if copy control > is interpreted this way it is clearly unconstitutional. There > are no grounds for a separate CONSENT of copyright holder as > in the case of making an archival copy. No matter what is > ruled on appeal about access control and hyperlinks, I believe > the copy control part of the statute needs to be found > unconstitutional. > > Defendants can be found not guilty without this matter being > addressed. I think it is up to amici to raise it, but I am > open to discussion on the matter. Maybe the length of the > brief is becoming excessive. > > I was looking at HR105-796 at http://www.senate.gov/~judiciary/105rept.htm On page 68 it says about 1201(b): The conferees emphasize that this particular provision is being included in this bill in order to deal with a very specific situation involving the protection of analog television programming and prerecorded movies and other audiovisual works in relation to recording capabilities of ordinary consumer analog video cassette recorders. It looks like copy control is defined to be something put on the analog output that will prevent current analog video cassette recorders from recording the signal (macrovision). The report also goes on to say that digital copy control mechanisms, when developed, are also covered. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 17 00:01:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28544 for dvd-discuss-outgoing; Sun, 17 Sep 2000 00:01:49 -0400 Received: from nospam.com (c07-090.015.popsite.net [64.24.78.90]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA28493 for ; Sun, 17 Sep 2000 00:00:59 -0400 Date: Sun, 17 Sep 2000 00:00:59 -0400 From: nospam@nospam.com Message-Id: <200009170400.AAA28493@eon.law.harvard.edu> Subject: Re: [dvd-discuss] Outline for Appellate Amicus Version 3 To: dvd-discuss@eon.law.harvard.edu References: <20000914220817.18763.qmail@web514.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > OK, Here's Version 3. This one doesn't have any placeholders. > > I added a short "Interest of the Amici" section. I copied Robert's > outline into the section IV "Access with Authority" 98% as-is. (I added > one bullet and made very minor formating changes). > > OK, comment away, but if you are proposing changes, try to be specific. [...] > IV) Access With Authority > A) Authority adheres to persons, not devices [...] > B) Defendants had legitimate purposes [...] > C) Effects of "authorized device" interpretation D) Implied License Since there is no explicit license granting authorization, either there is an implied license, or none at all. If there is none, then everyone is violating 1201. Clearly that can not be the case, so there must be an implied license. Furthermore, if the disc is marked "Licensed for home viewing only" a reasonable person could conclude that implied a licence for them to view it. Even if the discs were not so marked, they were advertised and sold for that purpose, and plaintiffs know that it is common practice that one buys a movie for the purpose of viewing it. If the plaintiffs intended that the DVDs were to be used only in certain circumstances, they had a responsibility to present the buyer with a contract stating such terms and restrictions prior to or at the time of sale. They don't get to just make up whatever they want after the fact. (Since the plaintiffs like to bring up HBO, contrast the plaintiffs' behavior in this case, with that: In the case of HBO, the end-user accepts a contract which grants permission to decrypt and view certain content under certain circumstances, in exchange for a fee. There is no such contract here.) From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 17 00:49:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA29545 for dvd-discuss-outgoing; Sun, 17 Sep 2000 00:49:29 -0400 Received: from rgate3.ricochet.net (rgate3.ricochet.net [204.179.143.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA29542 for ; Sun, 17 Sep 2000 00:49:27 -0400 Received: from shannon (mg-206253202-12.ricochet.net [206.253.202.12]) by rgate3.ricochet.net (8.9.3/8.9.3) with SMTP id XAA12185 for ; Sat, 16 Sep 2000 23:50:40 -0500 (CDT) From: "John Dempsey" To: Subject: RE: [dvd-discuss] Bernstein opinion on "conduct" Date: Sat, 16 Sep 2000 21:53:46 -0700 Message-ID: <000101c02063$42ebe1a0$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3 In-Reply-To: <39C16612.321E681E@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > When I became aware of "open source/free software" there was > no distinction. The "free" was dropped when Wall Street was added. Investors were reluctant to finance the production of "free" products. I read this in 'Silicon Alley' magazine today. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 17 07:22:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA05693 for dvd-discuss-outgoing; Sun, 17 Sep 2000 07:22:27 -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 HAA05690 for ; Sun, 17 Sep 2000 07:22:26 -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 HAA07496 for ; Sun, 17 Sep 2000 07:23:40 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA24412; Sun, 17 Sep 2000 07:23:40 -0400 (EDT) Date: Sun, 17 Sep 2000 07:23:40 -0400 (EDT) Message-Id: <200009171123.HAA24412@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 1201(b)(1) Claims In-Reply-To: <39C3F6E2.868612A5@swbell.net> References: <20000913164626.12687.qmail@web513.mail.yahoo.com> <200009131715.NAA04502@soggy-fibers.ai.mit.edu> <20000913170924.C11829@eldritchpress.org> <39C3F6E2.868612A5@swbell.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu tjolley@swbell.net writes: > I was looking at HR105-796 at > http://www.senate.gov/~judiciary/105rept.htm > On page 68 it says about 1201(b): > > The conferees emphasize that this particular provision is being > included in this bill in order to deal with a very specific situation > involving the protection of analog television programming and > prerecorded movies and other audiovisual works in relation to > recording capabilities of ordinary consumer analog video cassette > recorders. I think it's actually talking about 1201(k) there --- the explicit ban on consumer VCRs which defeat Macrovision. The preceding paragraph, which refers to 1201(b), is trying to explain why (k) was added in conference; they intended for Macrovision to be considered effective copy control ("effectively protects a right..."), as defined in 1201(b), but were worried that removing the Macrovision signal could be interpreted as allowed under the general "playability" exemption, since Macrovision works by adding artifacts to the video. > It looks like copy control is defined to be something put on the analog > output that will prevent current analog video cassette recorders from > recording the signal (macrovision). The report also goes on to say that > digital copy control mechanisms, when developed, are also covered. The definition of copy control is actually in 1201(b), and doesn't refer to any specific technology at all; the Macrovision provisions, however, refer to Macrovision specifically. BTW, I did mean to say "consumer VCRs"; there's an exception in the law for professional equipment, 1201(k)(3)(B), where "professional" is defined in (4)(D) as: (D) The term `professional analog video cassette recorder' means an analog video cassette recorder that is designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for a lawful business or industrial use, including making, performing, displaying, distributing, or transmitting copies of motion pictures on a commercial scale. So, making a VCR which defeats Macrovision is illegal in general, since that would facilitate illegal copying, but is explicitly legal if that VCR is specialized for making copies in bulk ("on a commercial scale"). As I've said before, you couldn't make this stuff up if you wanted to.... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 17 12:16:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16815 for dvd-discuss-outgoing; Sun, 17 Sep 2000 12:16:33 -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 MAA16812 for ; Sun, 17 Sep 2000 12:16:32 -0400 Received: from swbell.net ([64.216.209.152]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1100L42GZZQY@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Sun, 17 Sep 2000 11:11:59 -0500 (CDT) Date: Sun, 17 Sep 2000 11:02:32 -0500 From: Jolley Subject: Re: [dvd-discuss] 1201(b)(1) Claims To: dvd-discuss@eon.law.harvard.edu Message-id: <39C4EB18.B2587EAB@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: <20000913164626.12687.qmail@web513.mail.yahoo.com> <200009131715.NAA04502@soggy-fibers.ai.mit.edu> <20000913170924.C11829@eldritchpress.org> <39C3F6E2.868612A5@swbell.net> <200009171123.HAA24412@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > > tjolley@swbell.net writes: > > I was looking at HR105-796 at > > http://www.senate.gov/~judiciary/105rept.htm > > On page 68 it says about 1201(b): > > > > The conferees emphasize that this particular provision is being > > included in this bill in order to deal with a very specific situation > > involving the protection of analog television programming and > > prerecorded movies and other audiovisual works in relation to > > recording capabilities of ordinary consumer analog video cassette > > recorders. > > I think it's actually talking about 1201(k) there --- the explicit ban > on consumer VCRs which defeat Macrovision. The preceding paragraph, > which refers to 1201(b), is trying to explain why (k) was added in > conference; they intended for Macrovision to be considered effective > copy control ("effectively protects a right..."), as defined in > 1201(b), but were worried that removing the Macrovision signal could > be interpreted as allowed under the general "playability" exemption, > since Macrovision works by adding artifacts to the video. > You're right. When I read it the first time I thought it was about 1201(b). It's hard (for me) to swim through this stuff. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 17 19:59:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28794 for dvd-discuss-outgoing; Sun, 17 Sep 2000 19:59:31 -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 TAA28791 for ; Sun, 17 Sep 2000 19:59:19 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA02417 for dvd-discuss@eon.law.harvard.edu; Sun, 17 Sep 2000 20:00:36 -0400 Date: Sun, 17 Sep 2000 20:00:30 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bernstein opinion on "conduct" Message-ID: <20000917200030.D990@eldritchpress.org> References: <20000915163016.14408.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000915163016.14408.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Sep 15, 2000 at 09:30:16AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 15, 2000 at 09:30:16AM -0700, Bryan Taylor wrote: > > --- Harold Eaton wrote: > > > Well, at least for the forth language, there is a hardware processor > > (FRISC) that directly executes ascii forth source code with no > > intermediaries, no compilation, NO OBJECT CODE. I know, I work with > > the folks who designed that chip for spacecraft control. > > OK, for this peculiar platform, the source is executable 'object' code. > I think we can all agree that there are many possibilities under the > sun. > > The key question is: WHEN does a particular combination of files become > executable? > > I would argue that the completion of installation is the earlies act > that has 'non-speech' elements of a course of conduct. We can talk about this endlessly. Trying to get the thread back to the subject of the brief, I think it fits into the "authority" argument. As I pointed out long ago, Barbara Simons of the ACM in her deposition explained that the ACM didn't want to have "technologies" made illegal--criminal acts can be performed only by individuals under the law. Source code, object code, hyperlinks, don't "do" anything in and of themselves--they only do what people make them do. It is a user who "circumvents," not a piece of software code. If a black box "circumvents," it is only at a time and place where a user uses it in a deliberate attempt to avoid paying for the content or service. The fact that code can be conduct does not eliminate First Amendment scrutiny. Software code can never be entirely "functional"--we should never agree with that definition, as it takes away both the responisibility of the user, and the First Amendment scrutiny. Once we attain the proper level of scrutiny, then it should be impossible for Kaplan to rule that DeCSS is illegal--unless the user obtains it without some form of "trafficking"--or that "functional" hyperlinks to it are illegal. But that is just what MPAA wants, to move the situation away from the common legal situation of copyright infringement, that Congress and the courts can well understand, and instead make it into a technical argument that even the techies don't agree on. Let's try to prevent that from happening. Robert, is there some way to refer to this point in the authority argument? From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 17 20:27:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28990 for dvd-discuss-outgoing; Sun, 17 Sep 2000 20:27:30 -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 UAA28987 for ; Sun, 17 Sep 2000 20:27:18 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA02501 for dvd-discuss@eon.law.harvard.edu; Sun, 17 Sep 2000 20:28:35 -0400 Date: Sun, 17 Sep 2000 20:28:30 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus brief general question Message-ID: <20000917202830.E990@eldritchpress.org> References: <20000915234255.24673.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000915234255.24673.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Sep 15, 2000 at 04:42:55PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 15, 2000 at 04:42:55PM -0700, Bryan Taylor wrote: >.. > > > I don't see any reason why a Court should get peeved if two > > > different parties who happen to work closely together in > > > some common forums submit briefs on separate subjects. >... > I don't see why you think so if different people worked on each brief. > If the ACM and the EFF were both interested in being amici, would they > have to file together if they discovered their common interest through > member's participation in a mailing list. Having discovered their > common interest, wouldn't they be doing the court a favor by checking > with each other to avoid overlap? Why would this be any different for > private individuals? > > It's not like Copyright's Commons doesn't have a legitimate interest > that would discriminate them from this list. They are a party in a case > that is _focused_ on Congressional power limits under the Copyright > Clause. If we decided to create group A and group B and each submit, > that might be different. Copyrights Commons has some participants that > show up here (Eric, Wendy) and some that don't. Wendy, is Professor Nesson interested in another amicus brief, going beyond his one before the trial, that could focus on fair use and first sale and the arguments that law professors need to be able to descramble in order to teach? Does he want help? Bryan, I like your suggestion that Nesson and Copyright's Commons and the Berkman Center (of which Nesson is a director) take on a role here with the too-long amicus brief. If one substantial part of it were separated, then the rest could be developed better. In the end, it might be possible to publish all of the separate briefs as articles in a sort of anthology, casebook, book, or just online. This is the sort of thing that the Berkman Center is good at. The Harvard Law students who have just started classes this term could play a very useful role too. I was visiting Professor Zittrain last week and hordes of them were invading his office to try to enroll in his Internet law course. Well, kids, here is the real world, and it is online and we sure need you before it's too late! And Jim (James Tyre), thanks for the positive reaction on behalf of the ACM committee. Any possibility of persuading the committee to file a brief, persuant to the ACM deposition from Simons, that takes on the RE part of the outline? If it's overlong, I see no problem in having ACM do it instead of this group; we could help, but surely the ACM has enough experts so they don't need us. We just want somebody to put these ideas right in front of the appeals court judges. TIA for any help. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 05:52:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA17365 for dvd-discuss-outgoing; Mon, 18 Sep 2000 05:52:03 -0400 Received: from emeagbrbh1.cdsemea.baltimore.com ([195.152.140.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA17362 for ; Mon, 18 Sep 2000 05:52:01 -0400 Received: by emeagbrbh1.cdsemea.baltimore.com with Internet Mail Service (5.5.2650.21) id ; Mon, 18 Sep 2000 10:53:08 +0100 Message-ID: <61922E6DA745D311A42000508B2CFD14F02DCB@emeagbrms1.cdsemea.baltimore.com> From: Postmaster To: dvd-discuss@eon.law.harvard.edu Date: Mon, 18 Sep 2000 10:53:06 +0100 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Please can you remove akoumparos@baltimore.com from your mailing lists as he is no longer with the company. Thank you From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 12:16:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23768 for dvd-discuss-outgoing; Mon, 18 Sep 2000 12:16:27 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA23765 for ; Mon, 18 Sep 2000 12:16:26 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA15613 for ; Mon, 18 Sep 2000 09:17:42 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma014885; Mon, 18 Sep 00 09:16:21 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA19588; Mon, 18 Sep 2000 10:16:20 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Candidate draft: The Interests of the Amici Date: Mon, 18 Sep 2000 10:21:29 -0600 Message-ID: <000901c0218c$8064c680$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 I was thinking about the group and what it's unique characteristics and interests would be. The following literally flew from my fingers. Please let me know if I've (a) capture the essence of it and then (b) if I have let get some specific edits (both legal and gramatical) to get this amcicus going. John Zulauf private netizen Interests of the Amici The amici are adherents to the open source philosophy and methodology. They hold that the best "progress of the useful arts and sciences" are served when information is shared, with the explicit voluntary consent of the authors and inventors in an open forum. From this voluntary commons of ideas, they believe that the best, highest quality, most honest results are derived. This commons is open to all who will share, with none excluded on the basis of background, formal education, training or opinion. As such the amici, drawn from the diverse background of engineering, law, education, writing, publishing, encryption, among others have voluntarily bonded together to bring before the court the best possible understanding of the difficult issues involved in this case. Far from the characterization of the court regarding open source developers, "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" (need citation) the amici are deeply concerned about Copyrights. The core values of open source being the free, voluntary, sharing of information protected by copyrights (cite GNU copyleft) that assure that the results of the intellectual commons cannot be usurped by those who would wrongly profit from another's work. Further the amici are deeply committed to, and concerned regarding the preservation of the Constitution balance struck by the Copyright Clause. While the amici respect and defend the exclusive rights of the copyright holders to benefit commercially from their work, they also are struck by the importance of the converse aspect of this social contract. Namely that in order to gain the legal benefits and rights over their works, that these works must be truly published, and then after the "limited times" expire, pass into the public domain. It is the concerned interest of the amici that this balance be maintain, and feel that it is currently at risk. Little was allowed into the record regarding the various rights of the copyright holders and the citizen consumers. The amici have a strong interest expanding the information available to the Court regarding the risks to that traditional balance posed by the "horribles" endemic in strong technological controls. Said succinctly, it is in the interest of the amici that encrypted work be understood as rightly not being published. As to publish is to "make public" the amici cannot understand how encryption content (by it's nature to keep information private) can be understood as fulfulling the copyright holders half of the social contract as it is not readily understood and cannot "promote progress" and as it will not lapse into the public domain after limited times. That said, the amici are tinkerers, explorers, inventors, creators, writers, and innovators. When presented with a problem, a limitation, a reduction in quality, a difficulty in user experience, their first instinct is to solve, to improve, to understand, to explain, and to improve. The amici see these abilities being steadily eroded and restricted by those who would ignore the traditional balance of the Copyright and claim unlimited authority over their creative works. While the amici respect the rights to publish and vend, they strenously object the intrusion of the copyright holders beyond the first sale of the copyright works. They see the legal emcumbrances which impose quality and user experience restrictions upon DVD manufacturers as the equivalent of a publisher requiring that a book be read only in poor light. The amici seek to defend the freedom not to steal the book, but to replace the light bulb. Beyond this the amici are concerned that these initial technological intrusions beyond the first sale of published works are only the "nose of the camel." Given (arguendo?) a positive legal outcome in the case before the court, and the enormous economic incentive to further control the use of published media, the amici fear comprehensive, complete control over all uses of digital media. Thus achieved, the intellectual commons becomes barren. All creative content corporately chained to the business models of the copyright holders becomes unavailable for fair use, parody, or any further intellectual discoure. The amici are further interested in the rights of open intellectual discourse. The plaintiffs and the lower courts would restrain the rights of open source software developer to exchange information in public the fora which form the basis for the open source community. Further they would restrain the press from reporting, or even linking to the products of these open communities, base soley on the content -- specifically that it regards the decryption of CSS encoded media. This chilling effect thus extends the control of the copyright holders beyond just the works which they publish to include control over the works which others would create and publish. The chilling effect of the lower courts decision are (by neccesity of being after the fact of the ruling) are "de novo" but the amici seek to show that there interests are already being threatened subsequent to the ruling. Finally, many of the amici are scientist, academics, engineers, and educators. They are concerned about factual accuracy, complete honesty, and open disclosure. As such the issues of "spin" and "understanding" are of the concern. Throughout the record various statements were asserted by the plaintiffs and the court. Examples include that encryption is copy protection, that decryption is circumvention, and that publication is trafficking. Given the careful spin given these assertions and the only partial understanding of technical matter demonstrated (and admitted) by the Court, the amici have strong interest in removing the element of spin, addressing these assertions factual, and aiding the understanding of the complicated technical matters involved. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 12:32:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA24073 for dvd-discuss-outgoing; Mon, 18 Sep 2000 12:32:22 -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 MAA24070 for ; Mon, 18 Sep 2000 12:32:21 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA23914 for ; Mon, 18 Sep 2000 09:33:36 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma023207; Mon, 18 Sep 00 09:31:54 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA21394; Mon, 18 Sep 2000 10:31:53 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Potentially different items for the amicus brief Date: Mon, 18 Sep 2000 10:37:02 -0600 Message-ID: <000a01c0218e$ac62c280$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 As I was writing the "interests of the amici" candidate draft I thought a bit about what it is we should really be saying. Let's assume that the D's are going to cover berstein et. al. pretty well. What unique voice do we have? This isn't an attempt at a whole outline. Just an outline of stuff I'm thinking about. John M. Zulauf private netizen ----- I. The Traditional Balance of the Copyright A. Encrypted works are not published B. Post first sale restraints implied by DMCA 1. Not stealing the book, changing the lightbulb 2. The possible horribles 3. Restraint affect individual citizens -- not professionals (discriminatory -- civil rights angle?) C. The difference twixt PPV and publish (unlimited view) D. Authority models wrongly excluded must be explored 1. To see if 1201 is applicable (should be P's burden) a. authority != consent b. authority theories 2. Authority models are facts in dispute a. P's claim of circumvent implies lack of authority b. D's claim authority based on first sale 3. Authority models must in the record a. they have constitutional limits which must be subject to challenge b. to be exact regarding the what is enjoined c. future potential D's need to know extent of 1201 impact II. Factual errors of the lower court A. Encryption is not copy protection B. Decryption is not circuvemention C. CSS is not a 1201 "effective" TPM from RST's excellent work D. Open sourcers are a bunch of thieving pirates cite positive impact of hacks cite Eric Raymond cite GNU copyleft (open source depends on copyrights) From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 12:40:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25182 for dvd-discuss-outgoing; Mon, 18 Sep 2000 12:40:46 -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 MAA25179 for ; Mon, 18 Sep 2000 12:40:41 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA21749 for ; Mon, 18 Sep 2000 11:41:27 -0500 Message-ID: <39C64792.5DE5C977@mninter.net> Date: Mon, 18 Sep 2000 11:49:22 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Potentially different items for the amicus brief References: <000a01c0218e$ac62c280$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 I may be a little rusty, but I thought that it was decided by Kaplan that II.A, B, and C were all legal conclusions, not factual ones. Being legal errors is what means the appeals court will reconsider them. I don't know what to do about factual conclusion D other than it was an abuse of discretion and not supported by the record. Maybe separating legal errors and abuses of discretion will make it clear to us and the appeals court why we're bringing things to their attention. John Zulauf wrote: > II. Factual errors of the lower court > A. Encryption is not copy protection > B. Decryption is not circuvemention > C. CSS is not a 1201 "effective" TPM > from RST's excellent work > D. Open sourcers are a bunch of thieving pirates > cite positive impact of hacks > cite Eric Raymond > cite GNU copyleft (open source depends on copyrights) -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 13:41:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26345 for dvd-discuss-outgoing; Mon, 18 Sep 2000 13:41:20 -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 NAA26342 for ; Mon, 18 Sep 2000 13:41:19 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id KAA25983 for ; Mon, 18 Sep 2000 10:42:34 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma025667; Mon, 18 Sep 00 10:41:28 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id LAA29920; Mon, 18 Sep 2000 11:41:28 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] White House Report recommends OSS Date: Mon, 18 Sep 2000 11:46:38 -0600 Message-ID: <001201c02198$65120800$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 This might be some reasonably cited antidote for Kaplan's OSS diss. "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" and that's why the gov't want to use us for there most important work?!?!?! NOT! http://linuxtoday.com/news_story.php3?ltsn=2000-09-14-006-21-OP-CY-SW What do **you** think the NSA wants to DO with all that great hacking SW? John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 14:02:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27431 for dvd-discuss-outgoing; Mon, 18 Sep 2000 14:02:05 -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 OAA27427 for ; Mon, 18 Sep 2000 14:02:03 -0400 Message-ID: <20000918180320.13099.qmail@web6403.mail.yahoo.com> Received: from [207.1.61.238] by web6403.mail.yahoo.com; Mon, 18 Sep 2000 11:03:20 PDT Date: Mon, 18 Sep 2000 11:03:20 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 little nitpick: Kaplan said, "[t]he defendants ... are adherents of a movement ..." He did not say explicitly which movement he meant. He could reasonably claim that he was talking about the hacker/cracker movement, not the open source movement. > Far from the characterization of the court regarding open source > developers, > "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" (need citation) the amici > are > deeply concerned about Copyrights. The core values of open source __________________________________________________ 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 Sep 18 14:16:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27819 for dvd-discuss-outgoing; Mon, 18 Sep 2000 14:16:52 -0400 Received: from waltz.rahul.net (postfix@waltz.rahul.net [192.160.13.9]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27816 for ; Mon, 18 Sep 2000 14:16:51 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 15CE699C82; Mon, 18 Sep 2000 11:18:07 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id DCA2B938C0 for ; Mon, 18 Sep 2000 11:18:07 -0700 (PDT) Date: Mon, 18 Sep 2000 11:18:07 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici In-Reply-To: <20000918180320.13099.qmail@web6403.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, 18 Sep 2000, Pete Broule wrote: > Kaplan said, "[t]he defendants ... are adherents of a movement ..." > He did not say explicitly which movement he meant. He could reasonably > claim that he was talking about the hacker/cracker movement, not > the open source movement. The claims about the Open Source movement are not from Kaplan, they are from the MPAA's opposition brief: "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". From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 14:20:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27931 for dvd-discuss-outgoing; Mon, 18 Sep 2000 14:20:20 -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 OAA27928 for ; Mon, 18 Sep 2000 14:20:18 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13b5Xm-0003rb-00; Mon, 18 Sep 2000 20:21:30 +0200 Received: from localhost by sites.inka.de with local id 13b5Xo-00042B-00; Mon, 18 Sep 2000 20:21:32 +0200 Date: Mon, 18 Sep 2000 20:21:32 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici Message-ID: <20000918202131.A12334@inka.de> References: <20000918180320.13099.qmail@web6403.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from arromdee@rahul.net on Mon, Sep 18, 2000 at 11:18:07AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 18, 2000 at 11:18:07AM -0700, Ken Arromdee wrote: > On Mon, 18 Sep 2000, Pete Broule wrote: > > Kaplan said, "[t]he defendants ... are adherents of a movement ..." > > He did not say explicitly which movement he meant. He could reasonably > > claim that he was talking about the hacker/cracker movement, not > > the open source movement. > > The claims about the Open Source movement are not from Kaplan, they are from > the MPAA's opposition brief: > > "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 from the California case (i.e. the DVDCCA, not the MPAA) isn't it? 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 Sep 18 14:39:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA28237 for dvd-discuss-outgoing; Mon, 18 Sep 2000 14:39:16 -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 OAA28234 for ; Mon, 18 Sep 2000 14:39:14 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 8E73999C83; Mon, 18 Sep 2000 11:40:30 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 40B37938C0 for ; Mon, 18 Sep 2000 11:40:30 -0700 (PDT) Date: Mon, 18 Sep 2000 11:40:29 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici In-Reply-To: <20000918202131.A12334@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 Mon, 18 Sep 2000, Sham Gardner wrote: > > > Kaplan said, "[t]he defendants ... are adherents of a movement ..." > > > He did not say explicitly which movement he meant. He could reasonably > > > claim that he was talking about the hacker/cracker movement, not > > > the open source movement. > > The claims about the Open Source movement are not from Kaplan, they are from > > the MPAA's opposition brief: > > > > "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 from the California case (i.e. the DVDCCA, not the MPAA) isn't it? Oops. Yes, you're right. But this is probably the origin of the idea that "Kaplan" mischaracterized the open source movement. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 15:47:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA30618 for dvd-discuss-outgoing; Mon, 18 Sep 2000 15:47:39 -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 PAA30615 for ; Mon, 18 Sep 2000 15:47:37 -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 PAA12095 for ; Mon, 18 Sep 2000 15:48:51 -0400 Date: Mon, 18 Sep 2000 15:48:51 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici In-Reply-To: <000901c0218c$8064c680$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 09/18/00 at 10:21, 'twas brillig and John Zulauf scrobe: > I was thinking about the group and what it's unique characteristics and > interests would be. The following literally flew from my fingers. Please > let me know if I've (a) capture the essence of it and then (b) if I have let > get some specific edits (both legal and gramatical) to get this amcicus > going. John - I think this is an excellent stab at describing who we are and our reasons for submitting a brief. Nitpicker that I am (you should have seen the chaffing I gave Ed Hernstadt and company for the errors they introduced to my Declaration :-) I've taken the liberty of cleaning up a few grammatical niceties, and reworded a couple of sentences. I did not try to edit for brevity, however. I hope you'll forgive my mucking about; here's the result. --- Interests of the Amici The amici are adherents to the Open Source philosophy and methodology. They hold that "progress of the useful arts and sciences" is best served when information is shared -- with the explicit voluntary consent of the requisite authors and inventors -- in an open forum. >From this voluntary commons of ideas, they believe that the best, highest quality, most honest results are derived. This commons is open to all who will share, with none excluded on the basis of background, formal education, training or opinion. As such, the amici -- drawn from the diverse background of engineering, law, education, writing, publishing, and encryption, among others -- have bonded together to share with the court their best possible understanding of the difficult issues involved in this case. Far from the characterization of the court regarding open source developers "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", (need citation) the amici are deeply concerned with Copyrights. The core values of Open Source are the free, voluntary, sharing of information protected by copyrights (cite GNU copyleft) that assure that the results of the intellectual commons cannot be usurped by those who would wrongly profit from another's work. Further, the amici are deeply committed to -- and concerned regarding -- the preservation of the Constitutional balance struck by the Copyright Clause. While the amici respect and defend the exclusive rights of copyright holders to benefit commercially from their work, they also are struck by the importance of the converse aspect of this social contract: namely, that in order to gain the legal benefits and rights over works that publication confers, authors must truly publish; and that after the "limited [time]" stipulated expires, their works must pass into the public domain. It is the concerned interest of the amici that this balance be maintained, and they feel that it is currently at risk. Little was allowed into the record regarding the various responsibilities and rights of the copyright holders and the citizen consumers. The amici have a strong interest in expanding the information available to the Court regarding the risks to that traditional balance posed by the "horribles" endemic in strong technological controls. Said succinctly, it is in the interest of the amici that encrypted work be understood as rightly not being published. As to publish is to "make public" the amici cannot understand how encryption (which by its nature keeps information private) can be understood as fulfulling the copyright holders' half of the social contract: it is not readily understood and therefore cannot "promote progress", and it will not lapse into the public domain after a "limited [time]." That said, the amici are tinkerers, explorers, inventors, creators, writers, and innovators. When presented with a problem, a limitation, a reduction in quality, a difficulty in user experience, their first instincts are to understand, to solve, to explain, and to improve. The amici see their ability to indulge in these activities steadily eroded and restricted by those who would ignore the traditional balance of the Copyright and claim unlimited authority over their creative works. While the amici respect the rights to publish and vend, they strenously object to any intrusion of the copyright holder beyond the first sale of the copyrighted work. They see the legal emcumbrances which impose quality (and user experience) restrictions upon DVD manufacturers as the equivalent of a publisher requiring that a book be read only in poor light, or only in a certain room sitting in a certain chair. The amici seek to defend the freedom not to steal the book, but to replace the light bulb, or to read in the location, manner, and conditions of their choice. Beyond this, the amici are concerned that these initial technological intrusions beyond the first sale of published works are only the "nose of the camel." Given, arguendo, a finding upheld for the plaintiffs in the case before the court, and the enormous economic incentive for "publishers" to further control the use of "published" works, the amici fear comprehensive, complete control over all uses of digital media. Thus achieved, the intellectual commons becomes barren. All creative content corporately chained to the business models of the copyright holders becomes unavailable for fair use, parody, or any further intellectual discourse. The amici are further interested in the rights of open intellectual discourse. The plaintiffs and the lower court would restrain the rights of an Open Source software developer to exchange information in public -- the fora which form the basis for the Open Source community. Further, they would restrain the press from reporting -- or even linking to -- the products of these open communities, based soley on the content; specifically that it regards the decryption of CSS-encoded media. This chilling effect thus extends the control of the copyright holders beyond just the works which they "publish" to include control over the works which others would create and publish. The chilling effects of the lower court's decision are (by necessity of existing after the fact of the ruling) "de novo" but the amici seek to show that their interests are already being threatened subsequent to the ruling. Finally, many of the amici are scientist, academics, engineers, and educators. They are concerned about factual accuracy, complete honesty, and open disclosure. As such the issues of "spin" and "understanding" are of concern. Throughout the record various statements were asserted by the plaintiffs and the court. Examples include that encryption is copy protection, that decryption is circumvention, and that publication is trafficking. Given the careful spin given these assertions and the only partial understanding of technical matter demonstrated (and admitted) by the Court, the amici have strong interest in removing the element of spin, addressing these assertions factually, and aiding the understanding of the complicated technical matters involved. --- 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 Sep 18 16:01:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA32018 for dvd-discuss-outgoing; Mon, 18 Sep 2000 16:01:20 -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 QAA32015 for ; Mon, 18 Sep 2000 16:01:17 -0400 Received: from mit.edu (h0050049ab7a5.ne.mediaone.net [24.147.217.192]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id QAA17923; Mon, 18 Sep 2000 16:02:29 -0400 (EDT) Message-ID: <39C6757F.2780132B@mit.edu> Date: Mon, 18 Sep 2000 16:05:19 -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] Candidate draft: The Interests of the Amici 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 Ken Arromdee wrote: > > should be made available over the Internet for free". > > That's from the California case (i.e. the DVDCCA, not the MPAA) isn't it? > > Oops. Yes, you're right. > > But this is probably the origin of the idea that "Kaplan" mischaracterized > the open source movement. Depressingly, it is not. Quoting from the conclusion of Kaplan's opinion (the very last page): "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 pssible impact on traditional fair use of access control measures in the digital era." - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 16:19:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA00447 for dvd-discuss-outgoing; Mon, 18 Sep 2000 16:19:33 -0400 Received: from mail.inka.de (mail@quechua.inka.de [212.227.14.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA00444 for ; Mon, 18 Sep 2000 16:19:31 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13b7PE-0007Qe-00; Mon, 18 Sep 2000 22:20:48 +0200 Received: from localhost by sites.inka.de with local id 13b7PG-0004k5-00; Mon, 18 Sep 2000 22:20:50 +0200 Date: Mon, 18 Sep 2000 22:20:50 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici Message-ID: <20000918222050.B12334@inka.de> References: <39C6757F.2780132B@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39C6757F.2780132B@mit.edu>; from ravi_n@mit.edu on Mon, Sep 18, 2000 at 04:05:19PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 18, 2000 at 04:05:19PM -0400, Ravi Nanavati wrote: > Ken Arromdee wrote: > > > should be made available over the Internet for free". > > > That's from the California case (i.e. the DVDCCA, not the MPAA) isn't it? > > > > Oops. Yes, you're right. > > > > But this is probably the origin of the idea that "Kaplan" mischaracterized > > the open source movement. > > Depressingly, it is not. Quoting from the conclusion of Kaplan's > opinion (the very last page): > > "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 > pssible impact on traditional fair use of access control measures in the > digital era." The quote I was referring to is this one: > "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". Which is from the DVDCCA in the California case. As someone mentioned Kaplan doesn't state that it's the Open Source movement he's referring to, but merely that "defendants [...] are adherents of a movement", which could well refer to the hacker/cracker movement. 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 Sep 18 18:43:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03631 for dvd-discuss-outgoing; Mon, 18 Sep 2000 18:43:29 -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 SAA03628 for ; Mon, 18 Sep 2000 18:43:28 -0400 Message-ID: <20000918224411.21816.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Mon, 18 Sep 2000 15:44:11 PDT Date: Mon, 18 Sep 2000 15:44:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 Zulauf wrote: > I was thinking about the group and what it's unique characteristics > and interests would be. The following literally flew from > my fingers. Please let me know if I've (a) capture the essence > of it and then (b) if I have let get some specific edits > (both legal and gramatical) to get this amcicus going. I definitely think you've captured the essence of it. I'm starting to freak out over length, though. I've been playing around with drafting some of the First Amendment stuff (I'll post it pretty soon), and I'm finding it really difficult to see how we're going to get this all in 15 pages. Those are double spaced pages, too, at 28 lines per page in an 11-width fixed font (Courier). I counted about 100 lines in the Interest of the Amici section. That's about 3.5 pages! I'm finding my own initial drafts to be of similar overage, so I'm worried. Based on my own gut feel about the "fair share" each section in outline 3 should get, I'd throw this out as a straw man: I) Interests of Amici 1 page 28 lines II) First Amendment 6 pages 168 lines III) Reverse Engineering 3 pages 84 lines IV) Authority 4 pages 112 lines V) Overbroad Injunction 1 page 28 lines TOTAL 15 pages 420 lines 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 Mon Sep 18 19:30:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA05471 for dvd-discuss-outgoing; Mon, 18 Sep 2000 19:30:18 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA05468 for ; Mon, 18 Sep 2000 19:30:17 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id QAA03730 for ; Mon, 18 Sep 2000 16:31:32 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma003428; Mon, 18 Sep 00 16:30:05 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id RAA10022; Mon, 18 Sep 2000 17:30:01 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici Date: Mon, 18 Sep 2000 17:35:11 -0600 Message-ID: <002701c021c9$163837a0$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 Three items re: my draft. First off thanks to Ole Craig for an excellent initial editorial pass Second: there has been some contention as to whether the judge was tarring 2600 as pirates or open source in general. given his treatment of JJ's and MP's testimony "if in fact is was one of their goal" (speaking of interoperability vs. piracy) that kaplan clearly is smearing all of open source with a broad brush. Reclaiming that name is both a legtimate interest of the amici and sound rethoric. Kaplan clearly wants portray any supporters of deCSS as criminal riff-raff. That is the last impression left by his opinion -- that impression needs to be countered early and often within the amicus. A good sense of outrage up front truly reflects the feelings I've gotten from many posters regarding the judge's slur on open source development -- and thus is part and parcel of interests and spirit of the amici. Third: From: Bryan Taylor Date: Mon, 18 Sep 2000 15:44:11 -0700 (PDT) stated: >I definitely think you've captured the essence of it. > I'm starting to freak out over length, though. ... > I counted about 100 lines in the Interest of the Amici > section. That's about 3.5 pages! Well I must admit the document was stream of consciousness and not written for length. It has the following problems that I would appeal to one of the writers or lawyers in our group to take a crack at. 1. It's not written tersely. My intensely loquacious self escaped again (think about the material I got out of the 11 CPSA axioms for my LOC comments) -- sorry. Also there are probably redundant sections, but as it's my own writing it's harder for me to see them. 2. It mixes in some of the argument. If this were stricken, it would probably help the length alot, but I'm not sure how to strike the argument and still state the interests. Probably the whole section on encryption v. publication could be moved to the A1 section or authority sections. Nothing else comes to mind. Anybody else want to take a crack at a more violent blue-pencil edit of my interests (as revised by Olegario in http://eon.law.harvard.edu/archive/dvd-discuss/msg08394.html If I don't see one by tomorrow, I'll take another crack at it Wed. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 20:23:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA08273 for dvd-discuss-outgoing; Mon, 18 Sep 2000 20:23:30 -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 UAA08270 for ; Mon, 18 Sep 2000 20:23:28 -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 UAA05966 for ; Mon, 18 Sep 2000 20:24:39 -0400 (EDT) Message-ID: <39C6B247.3AD5DF85@mediaone.net> Date: Mon, 18 Sep 2000 20:24:39 -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] Candidate draft: The Interests of the Amici 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 Snippers out... No new words. Stopped at 20 lines I think fit the font. What needs in, and what leaves? Ole Craig wrote: > > On 09/18/00 at 10:21, 'twas brillig and John Zulauf scrobe: > > I was thinking about the group and what it's unique characteristics and > > interests would be. The following literally flew from my fingers. Please > > let me know if I've (a) capture the essence of it and then (b) if I have let > > get some specific edits (both legal and gramatical) to get this amcicus > > going. > > John - > I think this is an excellent stab at describing who we are and > our reasons for submitting a brief. Nitpicker that I am (you should > have seen the chaffing I gave Ed Hernstadt and company for the errors > they introduced to my Declaration :-) I've taken the liberty of > cleaning up a few grammatical niceties, and reworded a couple of > sentences. I did not try to edit for brevity, however. I hope you'll > forgive my mucking about; here's the result. > > --- Interests of the Amici 1 The amici adhere to the Open Source philosophy. 2 They hold that "progress of the useful arts" is best 3 served when information is shared in an open forum. 4 This commons is open to all, with none excluded. 5 Drawn from the diverse background of engineering, law, 6 education, writing, publishing, and encryption, etc., 7 the amici have bonded together to share with the court 8 their best understanding of the issues involved in this case. 9 The court characterized open source developers as "adherents 10 of a movement that believes that information should be 11 available without charge to anyone clever enough to break 12 into the computer systems or data storage media in which it is 13 located" (need citation). The amici are deeply concerned with 14 Copyrights. The core values of Open Source are the free, voluntary, 15 sharing of information protected by copyrights (cite GNU copyleft) 16 that assure that the results of the intellectual commons cannot be 17 usurped by those who would wrongly profit from another's work. 18 The amici are deeply committed to the preservation of the 19 Constitutional balance struck by the 20 Copyright Clause. ... While the amici respect and defend the exclusive > rights of copyright holders to benefit commercially from their work, > they also are struck by the importance of the converse aspect of this > social contract: namely, that in order to gain the legal benefits and > rights over works that publication confers, authors must truly > publish; and that after the "limited [time]" stipulated expires, their > works must pass into the public domain. It is the concerned interest > of the amici that this balance be maintained, and they feel that it is > currently at risk. Little was allowed into the record regarding the > various responsibilities and rights of the copyright holders and the > citizen consumers. The amici have a strong interest in expanding the > information available to the Court regarding the risks to that > traditional balance posed by the "horribles" endemic in strong > technological controls. Said succinctly, it is in the interest of the > amici that encrypted work be understood as rightly not being > published. As to publish is to "make public" the amici cannot > understand how encryption (which by its nature keeps information > private) can be understood as fulfulling the copyright holders' half > of the social contract: it is not readily understood and therefore > cannot "promote progress", and it will not lapse into the public > domain after a "limited [time]." > > That said, the amici are tinkerers, explorers, inventors, creators, > writers, and innovators. When presented with a problem, a limitation, > a reduction in quality, a difficulty in user experience, their first > instincts are to understand, to solve, to explain, and to improve. The > amici see their ability to indulge in these activities steadily eroded > and restricted by those who would ignore the traditional balance of > the Copyright and claim unlimited authority over their creative works. > While the amici respect the rights to publish and vend, they > strenously object to any intrusion of the copyright holder beyond the > first sale of the copyrighted work. They see the legal emcumbrances > which impose quality (and user experience) restrictions upon DVD > manufacturers as the equivalent of a publisher requiring that a book > be read only in poor light, or only in a certain room sitting in a > certain chair. The amici seek to defend the freedom not to steal the > book, but to replace the light bulb, or to read in the location, > manner, and conditions of their choice. > > Beyond this, the amici are concerned that these initial technological > intrusions beyond the first sale of published works are only the "nose > of the camel." Given, arguendo, a finding upheld for the plaintiffs in > the case before the court, and the enormous economic incentive for > "publishers" to further control the use of "published" works, the > amici fear comprehensive, complete control over all uses of digital > media. Thus achieved, the intellectual commons becomes barren. All > creative content corporately chained to the business models of the > copyright holders becomes unavailable for fair use, parody, or any > further intellectual discourse. > > The amici are further interested in the rights of open intellectual > discourse. The plaintiffs and the lower court would restrain the > rights of an Open Source software developer to exchange information in > public -- the fora which form the basis for the Open Source community. > Further, they would restrain the press from reporting -- or even > linking to -- the products of these open communities, based soley on > the content; specifically that it regards the decryption of > CSS-encoded media. This chilling effect thus extends the control of > the copyright holders beyond just the works which they "publish" to > include control over the works which others would create and publish. > The chilling effects of the lower court's decision are (by necessity > of existing after the fact of the ruling) "de novo" but the amici seek > to show that their interests are already being threatened subsequent > to the ruling. > > Finally, many of the amici are scientist, academics, engineers, and > educators. They are concerned about factual accuracy, complete > honesty, and open disclosure. As such the issues of "spin" and > "understanding" are of concern. Throughout the record various > statements were asserted by the plaintiffs and the court. Examples > include that encryption is copy protection, that decryption is > circumvention, and that publication is trafficking. Given the careful > spin given these assertions and the only partial understanding of > technical matter demonstrated (and admitted) by the Court, the amici > have strong interest in removing the element of spin, addressing these > assertions factually, and aiding the understanding of the complicated > technical matters involved. > > --- > > 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);' -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 20:24:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA08290 for dvd-discuss-outgoing; Mon, 18 Sep 2000 20:24:24 -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 UAA08287 for ; Mon, 18 Sep 2000 20:24:21 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA22679; Mon, 18 Sep 2000 20:25:35 -0400 Date: Mon, 18 Sep 2000 20:25:35 -0400 From: Jim Bauer Message-Id: <200009190025.UAA22679@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici Newsgroups: local.dvd-discuss In-Reply-To: <000901c0218c$8064c680$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A few comments/correction/suggestions below. John Zulauf wrote: > >Interests of the Amici > > >The amici are adherents to the open source philosophy and methodology. They >hold that the best "progress of the useful arts and sciences" are served >when information is shared, with the explicit voluntary consent of the >authors and inventors in an open forum. From this voluntary commons of >ideas, they believe that the best, highest quality, most honest results are >derived. This commons is open to all who will share, with none excluded on >the basis of background, formal education, training or opinion. As such the >amici, drawn from the diverse background of engineering, law, education, >writing, publishing, encryption, among others have voluntarily bonded >together to bring before the court the best possible understanding of the >difficult issues involved in this case. > >Far from the characterization of the court regarding open source developers, >"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" (need citation) the amici are >deeply concerned about Copyrights. The core values of open source being the >free, voluntary, sharing of information protected by copyrights (cite GNU >copyleft) http://www.fsf.org/copyleft/gpl.html > that assure that the results of the intellectual commons cannot be >usurped by those who would wrongly profit from another's work. Further the >amici are deeply committed to, and concerned regarding the preservation of >the Constitution balance struck by the Copyright Clause. While the amici >respect and defend the exclusive rights of the copyright holders to benefit >commercially from their work, they also are struck by the importance of the >converse aspect of this social contract. Namely that in order to gain the >legal benefits and rights over their works, that these works must be truly >published, and then after the "limited times" expire, pass into the public ^^^^^ s/pass/and pass/ >domain. It is the concerned interest of the amici that this balance be >maintain, and feel that it is currently at risk. Little was allowed into >the record regarding the various rights of the copyright holders and the >citizen consumers. The amici have a strong interest expanding the >information available to the Court regarding the risks to that traditional >balance posed by the "horribles" endemic in strong technological controls. >Said succinctly, it is in the interest of the amici that encrypted work be >understood as rightly not being published. As to publish is to "make >public" the amici cannot understand how encryption content (by it's nature >to keep information private) can be understood as fulfulling the copyright >holders half of the social contract as it is not readily understood and >cannot "promote progress" and as it will not lapse into the public domain s/lapse into the public domain/effectivly lapse into the public domain/ >after limited times. > >That said, the amici are tinkerers, explorers, inventors, creators, writers, >and innovators. When presented with a problem, a limitation, a reduction in >quality, a difficulty in user experience, their first instinct is to solve, >to improve, to understand, to explain, and to improve. The amici see these >abilities being steadily eroded and restricted by those who would ignore the >traditional balance of the Copyright and claim unlimited authority over >their creative works. While the amici respect the rights to publish and >vend, they strenously object the intrusion of the copyright holders beyond s/object the/object to the/ >the first sale of the copyright works. They see the legal emcumbrances >which impose quality and user experience restrictions upon DVD manufacturers >as the equivalent of a publisher requiring that a book be read only in poor >light. The amici seek to defend the freedom not to steal the book, but to >replace the light bulb. Beyond this the amici are concerned that these >initial technological intrusions beyond the first sale of published works >are only the "nose of the camel." Given (arguendo?) a positive legal >outcome in the case before the court, and the enormous economic incentive to >further control the use of published media, the amici fear comprehensive, >complete control over all uses of digital media. Thus achieved, the >intellectual commons becomes barren. All creative content corporately >chained to the business models of the copyright holders becomes unavailable >for fair use, parody, or any further intellectual discoure. > >The amici are further interested in the rights of open intellectual >discourse. The plaintiffs and the lower courts would restrain the rights of >open source software developer to exchange information in public the fora >which form the basis for the open source community. Further they would >restrain the press from reporting, or even linking to the products of these >open communities, base soley on the content -- specifically that it regards >the decryption of CSS encoded media. This chilling effect thus extends the >control of the copyright holders beyond just the works which they publish to >include control over the works which others would create and publish. The >chilling effect of the lower courts decision are (by neccesity of being >after the fact of the ruling) are "de novo" but the amici seek to show that >there interests are already being threatened subsequent to the ruling. s/there/their/ > >Finally, many of the amici are scientist, academics, engineers, and >educators. They are concerned about factual accuracy, complete honesty, and >open disclosure. As such the issues of "spin" and "understanding" are of >the concern. Throughout the record various statements were asserted by the s/the concern/concern/ >plaintiffs and the court. Examples include that encryption is copy >protection, that decryption is circumvention, and that publication is >trafficking. Given the careful spin given these assertions and the only >partial understanding of technical matter demonstrated (and admitted) by the >Court, the amici have strong interest in removing the element of spin, >addressing these assertions factual, and aiding the understanding of the s/factual/factually/ ? >complicated technical matters involved. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 21:03:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09918 for dvd-discuss-outgoing; Mon, 18 Sep 2000 21:03:45 -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 VAA09915 for ; Mon, 18 Sep 2000 21:03:44 -0400 Message-ID: <20000919010432.26267.qmail@web511.mail.yahoo.com> Received: from [64.81.25.37] by web511.mail.yahoo.com; Mon, 18 Sep 2000 18:04:32 PDT Date: Mon, 18 Sep 2000 18:04:32 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] First Draft of Part II (First Amendment) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I mentioned I'd been whittling on the First Amendment section. Here's my draft (there's one w/o line numbers in the same directory): http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_II_numbered.txt Note to John, it appears there is no monopoly on going over length. I even *tried* to be short and still wrote 272 lines, where I estimated 168 should be the upper limit. Uggh... __________________________________________________ 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 Sep 18 21:22:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10619 for dvd-discuss-outgoing; Mon, 18 Sep 2000 21:22:57 -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 VAA10616 for ; Mon, 18 Sep 2000 21:22:56 -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 VAA17745 for ; Mon, 18 Sep 2000 21:24:11 -0400 (EDT) Message-ID: <39C6BC2D.8DDE73CB@mediaone.net> Date: Mon, 18 Sep 2000 21:06:53 -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] Candidate draft: The Interests of the Amici References: <39C6B247.3AD5DF85@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 Sphere wrote: ... > > 18 The amici are deeply committed to the preservation of the > 19 Constitutional balance struck by the > 20 Copyright Clause. > 18 The amici are committed to the constitutional balance of 19 the Copyright clause, but the law of the land is, by amendment, 20 freedom of speech. Copyright must serve society, not a 21 privileged elite. (21... Oh well....) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 22:00:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12599 for dvd-discuss-outgoing; Mon, 18 Sep 2000 22:00:34 -0400 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA12596 for ; Mon, 18 Sep 2000 22:00:32 -0400 Received: from jy01 (user-2inig0o.dialup.mindspring.com [165.121.64.24]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id WAA23510 for ; Mon, 18 Sep 2000 22:01:49 -0400 (EDT) Message-Id: <200009190201.WAA23510@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Mon, 18 Sep 2000 21:52:53 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Attachments to Kaplan's Latest Amendment In-Reply-To: <20000919010432.26267.qmail@web511.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 We offer the attached corrected pages 6, 58-62 to Kaplan's amended opinion of September 8: http://cryptome.org/mpaa-v-2600-lk3.htm From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 22:02:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12764 for dvd-discuss-outgoing; Mon, 18 Sep 2000 22:02:08 -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 WAA12760 for ; Mon, 18 Sep 2000 22:02:07 -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 WAA19546 for ; Mon, 18 Sep 2000 22:03:23 -0400 (EDT) Message-ID: <39C6C96C.62A49C94@mediaone.net> Date: Mon, 18 Sep 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] First Draft of Part II (First Amendment) References: <20000919010432.26267.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: > > I mentioned I'd been whittling on the First Amendment section. Here's > my draft (there's one w/o line numbers in the same directory): > > http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_II_numbered.txt > > Note to John, it appears there is no monopoly on going over length. I > even *tried* to be short and still wrote 272 lines, where I estimated > 168 should be the upper limit. Uggh... > I got no where trying to lose words. Try combining paragraphs and I might be able to cut the lines. You've got a lot to say here. Finding a lot of punch to replace words isn't simple. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 22:12:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13719 for dvd-discuss-outgoing; Mon, 18 Sep 2000 22:12:42 -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 WAA13716 for ; Mon, 18 Sep 2000 22:12:40 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id WAA21679 for ; Mon, 18 Sep 2000 22:13:28 -0400 Date: Mon, 18 Sep 2000 22:13:27 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici In-Reply-To: <000901c0218c$8064c680$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 Mon, 18 Sep 2000, John Zulauf wrote: > Interests of the Amici > > > The amici are adherents to the open source philosophy and methodology. They > hold that the best "progress of the useful arts and sciences" are served > when information is shared, with the explicit voluntary consent of the > authors and inventors in an open forum. From this voluntary commons of > ideas, they believe that the best, highest quality, most honest results are cut 'highest quality' > derived. This commons is open to all who will share, with none excluded on > the basis of background, formal education, training or opinion. As such the > amici, drawn from the diverse background of engineering, law, education, > writing, publishing, encryption, among others have voluntarily bonded 'publishing and encryption' > together to bring before the court the best possible understanding of the > difficult issues involved in this case. > > Far from the characterization of the court regarding open source developers, > "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" (need citation) the amici are > deeply concerned about Copyrights. The core values of open source being the lowercase copyrights > free, voluntary, sharing of information protected by copyrights (cite GNU 'free and voluntary' (been working with comma-delimited files? ;) > copyleft) that assure that the results of the intellectual commons cannot be > usurped by those who would wrongly profit from another's work. Further the 'Further,' > amici are deeply committed to, and concerned regarding the preservation of > the Constitution balance struck by the Copyright Clause. While the amici 'Constitutional' > respect and defend the exclusive rights of the copyright holders to benefit > commercially from their work, they also are struck by the importance of the > converse aspect of this social contract. Namely that in order to gain the > legal benefits and rights over their works, that these works must be truly > published, and then after the "limited times" expire, pass into the public > domain. It is the concerned interest of the amici that this balance be > maintain, and feel that it is currently at risk. Little was allowed into 'maintained' > the record regarding the various rights of the copyright holders and the > citizen consumers. The amici have a strong interest expanding the > information available to the Court regarding the risks to that traditional > balance posed by the "horribles" endemic in strong technological controls. > Said succinctly, it is in the interest of the amici that encrypted work be 'works are' (it can stand as is, but it's odd) > understood as rightly not being published. As to publish is to "make > public" the amici cannot understand how encryption content (by it's nature 'encrypted' > to keep information private) can be understood as fulfulling the copyright > holders half of the social contract as it is not readily understood and 'holders' half' 'readily understood, cannot' > cannot "promote progress" and as it will not lapse into the public domain 'and will not' > after limited times. 'after a limited time.' > That said, the amici are tinkerers, explorers, inventors, creators, writers, > and innovators. When presented with a problem, a limitation, a reduction in > quality, a difficulty in user experience, their first instinct is to solve, 'quality or a difficulty' > to improve, to understand, to explain, and to improve. The amici see these you said improve twice. > abilities being steadily eroded and restricted by those who would ignore the > traditional balance of the Copyright and claim unlimited authority over lowercase copyright; or 'of the Copyright Clause and' > their creative works. While the amici respect the rights to publish and > vend, they strenously object the intrusion of the copyright holders beyond 'object to the' > the first sale of the copyright works. They see the legal emcumbrances > which impose quality and user experience restrictions upon DVD manufacturers > as the equivalent of a publisher requiring that a book be read only in poor > light. The amici seek to defend the freedom not to steal the book, but to > replace the light bulb. Beyond this the amici are concerned that these 'seek to defend not the theft of the book, but the freedom to replace the light bulb.' > initial technological intrusions beyond the first sale of published works > are only the "nose of the camel." Given (arguendo?) a positive legal > outcome in the case before the court, and the enormous economic incentive to > further control the use of published media, the amici fear comprehensive, > complete control over all uses of digital media. Thus achieved, the 'fear absolute control' > intellectual commons becomes barren. All creative content corporately > chained to the business models of the copyright holders becomes unavailable > for fair use, parody, or any further intellectual discoure. > > The amici are further interested in the rights of open intellectual > discourse. The plaintiffs and the lower courts would restrain the rights of > open source software developer to exchange information in public the fora > which form the basis for the open source community. Further they would 'in the public forums which' > restrain the press from reporting, or even linking to the products of these > open communities, base soley on the content -- specifically that it regards 'based' > the decryption of CSS encoded media. This chilling effect thus extends the > control of the copyright holders beyond just the works which they publish to > include control over the works which others would create and publish. The > chilling effect of the lower courts decision are (by neccesity of being > after the fact of the ruling) are "de novo" but the amici seek to show that > there interests are already being threatened subsequent to the ruling. > > Finally, many of the amici are scientist, academics, engineers, and 'scientists' > educators. They are concerned about factual accuracy, complete honesty, and > open disclosure. As such the issues of "spin" and "understanding" are of 'As such, the' > the concern. Throughout the record various statements were asserted by the cut the first 'the' > plaintiffs and the court. Examples include that encryption is copy > protection, that decryption is circumvention, and that publication is > trafficking. Given the careful spin given these assertions and the only > partial understanding of technical matter demonstrated (and admitted) by the > Court, the amici have strong interest in removing the element of spin, > addressing these assertions factual, and aiding the understanding of the 'assertions factually, and' > complicated technical matters involved. > From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 22:49:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA19124 for dvd-discuss-outgoing; Mon, 18 Sep 2000 22:49:03 -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 WAA19054 for ; Mon, 18 Sep 2000 22:48:50 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA03909 for dvd-discuss@eon.law.harvard.edu; Mon, 18 Sep 2000 22:50:21 -0400 Date: Mon, 18 Sep 2000 22:50:16 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici Message-ID: <20000918225016.F2708@eldritchpress.org> References: <002701c021c9$163837a0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <002701c021c9$163837a0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Mon, Sep 18, 2000 at 05:35:11PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 18, 2000 at 05:35:11PM -0600, John Zulauf wrote: > Three items re: my draft. > > First off thanks to Ole Craig for an excellent initial editorial pass > > Second: there has been some contention as to whether the judge was tarring > 2600 as pirates or open source in general. given his treatment of JJ's and > MP's testimony "if in fact is was one of their goal" (speaking of > interoperability vs. piracy) that kaplan clearly is smearing all of open > source with a broad brush. Reclaiming that name is both a legtimate > interest of the amici and sound rethoric. Kaplan clearly wants portray any > supporters of deCSS as criminal riff-raff. That is the last impression left > by his opinion -- that impression needs to be countered early and often > within the amicus. A good sense of outrage up front truly reflects the > feelings I've gotten from many posters regarding the judge's slur on open > source development -- and thus is part and parcel of interests and spirit of > the amici. I certainly don't agree with Kaplan's tarring of the "movement." But how much space should we really allot to refuting it? For example, I am not one of those who believes that all information should be free (even in the free speech rather than free beer way). Nevertheless, I am glad to join with the Free Speech or Open Source movement against Kaplan. The legal response to Kaplan's decision should not be sidetracked by his mischaracterization. It should only be necessary, I think, to correct his misstatement that the defendants are part of a movement that is trying to open and make "free" trade secrets. It is important to point out that DMCA is a copyright law, that copyright law and DMCA should not protect trade secrets, and that defendants are not charged with the offense of infringing copyright, that if it is a trade secret matter then another court case would have to be necessary to resolve that, and that if it were an ordinary copyright dispute there would be no case at all. All this I believe could be mentioned by defendant's counsel-- and amici, only briefly, to state the origin of our interests. But we do not need to try to represent Open Source or Free Software in general here--we are only participants in the OpenLaw discussion, from which the brief arises. The reason Kaplan and MPAA raise this red flag is not to influence the appeals judges, but as propaganda in a larger PR war. It is standard in such wars to dehumanize the enemy and accuse him of all sorts of crimes and misdeeds that can never be proved in court. But we should focus on the points that need to be raised in court for this law to be declared unconstitutional. I would be very brief and direct in one sentence or two, with a footnote so that the judges could learn more if they wished to follow up on the point. From dvd-discuss-owner@eon.law.harvard.edu Mon Sep 18 23:11:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20068 for dvd-discuss-outgoing; Mon, 18 Sep 2000 23:11:48 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA20065 for ; Mon, 18 Sep 2000 23:11:46 -0400 Received: from ppp.anonymizer.com (c05-027.015.popsite.net [64.24.76.27]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA21437 for ; Mon, 18 Sep 2000 20:14:55 -0700 (PDT) Message-Id: <4.3.2.7.2.20000918195624.00e6ac60@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 18 Sep 2000 20:12:55 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] John Zulauf/Bryan Taylor Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu {In a big hurry, so one quick post to raise a few quick points.) John, excellent statement of why we're here - but way too long. FRAP 29(c)(3) provides that the brief should contain: "3) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file" I don't think I recall ever seeing a statement of interest longer than one page, they're usually less. Bryan, I've barely glanced at your draft, but it immediately popped out how you refer to "Judge Kaplan", "Kaplan", etc. Never. Always refer to "the Court". About the only time you name a judge (obviously not applicable here) is if you are citing to a concurring or dissenting opinion. ("In his concurring opinion in Good v. Evil, Judge Dread wrote ....") Gotta run. -------------------------------------------------------------------- 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 Sep 18 23:22:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA20873 for dvd-discuss-outgoing; Mon, 18 Sep 2000 23:22:59 -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 XAA20869 for ; Mon, 18 Sep 2000 23:22:42 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA03973 for dvd-discuss@eon.law.harvard.edu; Mon, 18 Sep 2000 23:24:12 -0400 Date: Mon, 18 Sep 2000 23:24:07 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Attachments to Kaplan's Latest Amendment Message-ID: <20000918232407.G2708@eldritchpress.org> References: <20000919010432.26267.qmail@web511.mail.yahoo.com> <200009190201.WAA23510@smtp6.mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0i In-Reply-To: <200009190201.WAA23510@smtp6.mindspring.com>; from jya@pipeline.com on Mon, Sep 18, 2000 at 09:52:53PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Sep 18, 2000 at 09:52:53PM -0400, John Young wrote: > We offer the attached corrected pages 6, 58-62 to Kaplan's > amended opinion of September 8: > > http://cryptome.org/mpaa-v-2600-lk3.htm ++My comments preceded by plus signs. I haven't compared this new text against the old one, but I did want to sound off on some ideas. 58 .... Nor is the incidental restraint on protected expression -- the prohibition of trafficking in means that would circumvent controls limiting access to unprotected materials or to copyrighted materials for noninfringing purposes -- broader than is necessary to accomplish Congress' goals of preventing infringement and promoting the availability of content in digital form.206 ++here is where we need to attack his argument for the overbroad issue. "Availability" is as far as Kaplan can go--it certains does not imply "publication" does it--yet that is the true Constitutional purpose, not the goal of Congress here to protect trade secrets ("unprotected materials" = unpublished trade secrets?). ____________________ ... 206 It is conceivable that technology eventually will provide means of limiting access only to copyrighted materials and only for uses that would infringe the rights of the copyright holder. See, e.g., Travis, 15 BERKELEY TECH. L.J. at 835-36; Mark Gimbel, Note, Some Thoughts on the Implications of Trusted Systems for Intellectual Propcrty Law, 50 Stan. L. Rev. 1671, 1875-78 (1998); Mark Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing, 12 BERKELEY TECH. L.J. 137, 138- 40 (1997). We have not yet come so far. ++Kaplan here turns copyright law around on its back: because he doesn't know of a technology that can restrict itself to allowing access only in cases where access is covered by regular copyright rights, he is willing to extend copyright law to grant holders as many rights as they wish, until they decide to restrict themselves and use such technology. It should be the other way around--circumvention in cases where the copyright holder has no rights should not be denied, nor should trafficking in such technology be banned, because it is fair use under copyright law. It is easy to see how banning all such technology could be overbroad: if a power cord is necessary for copying, then ban power cords. If a TPM is used to "protect" illegal copying of works, then don't use the same TPM to "protect" public domain works, else it's overbroad. It's not a technical problem at all--it's a legal one. 60 ... Society increasingly depends upon technological means of controlling access to digital files and systems, whether they are military computers, bank records, academic records, copyrighted works or something else entirely. There are far too many who, given any opportunity, will bypass those security measures, some for the sheer joy of doing it, some for innocuous reasons, and others for more malevolent purposes. Given the virtually instantaneous and worldwide dissemination wlle!y available via the Internet, the only rational assumption is that once a computer program capable of bypassing such an access control system is disseminated, it will be used. [and then Kaplan goes into his sick disease analogy...] ++Kaplan here argues that copyright infringement is naturally a criminal act such as invading military computers. After all, the "intellectual property" industry should get this protecton because of the "significance to our economy in trade"... 58 ... The substantiality of that interest is evident both from the fact that the Constitution specifically empowers Congress to provide for copyright protection203 and from the significance to our economy of trade in copyrighted materials.204 203 U.S. CONST., art. 1, § 8 (Copyright Clause) 204 COMMERCE COMM. REP. 94-95; SENATE REP. 21-22,143. ++Here the Constitutional interest in promoting "the progress of science and useful arts" and thus the public domain is ignored--the Copyright Clause is twisted to some natural rights theory that the works are "property" that need "protection" going far beyond "publish and vend" rights. And Kaplan misuses this citation: Indeed, the Supreme Court has made clear that copyright protection itself is "the engine of free expression."205 205 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) ++The Harper case does contain language that seems to favor this extension of rights to copyright holders--but only if you take some quotations out of the entire context of the decision--the decision as a whole only reaffirms the role of the Copyright Clause to promote the public domain, and not an extension to Berne Convention rights. The Supreme Court has not recognized this covert extension, as Kaplan would wish, and which he needs to make his case. Again, instead of what Kaplan says, it should be true that the Internet is a great "engine of free expression" and hyperlinks should never be banned to promote separate interest of copyright holders--copyright was meant to promote publication, not suppress it, and not forbid publication of future works such as DeCSS or the like for sure. Kaplan's logic here is very very weak and needs to be destroyed. I hope we or somebody else has the space to do that. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 00:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24668 for dvd-discuss-outgoing; Tue, 19 Sep 2000 00:38:22 -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 AAA24665 for ; Tue, 19 Sep 2000 00:38:21 -0400 Received: from swbell.net ([64.216.209.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1400BE0A6P06@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Mon, 18 Sep 2000 23:37:38 -0500 (CDT) Date: Mon, 18 Sep 2000 23:28:14 -0500 From: Jolley Subject: [dvd-discuss] A short interests of the amici To: dvd-discuss Message-id: <39C6EB5E.E3F1C360@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 know it's painful, but here is a very short interests of the amici. Let's not loose our readers with a long rant. Perhaps someone can add in the "source of its authority to file" that Jim mentioned. ---- The amici are an eclectic group of engineers, scientists, journalists lawyers, programmers, publishers, teachers, hobbyists, authors, consumers, inventors, and more. We are deeply disturbed by the Court's ruling in that it directly affects our livelihoods by restricting our freedom to express and share our ideas, our rights to fair use of copyrighted works that we have purchased, and obvious abuses of technology to extend to an unlimited time a copyright holders control of a work. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 00:39:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA24756 for dvd-discuss-outgoing; Tue, 19 Sep 2000 00:39:31 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA24753 for ; Tue, 19 Sep 2000 00:39:30 -0400 Message-ID: <20000919044018.17038.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Mon, 18 Sep 2000 21:40:18 PDT Date: Mon, 18 Sep 2000 21:40:18 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 certainly don't agree with Kaplan's tarring of the "movement." > But how much space should we really allot to refuting it? Is it really part of the definitional statement of the interest of the amici? I'd say we should concentrate on what we are for when we state our interest. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 00:56:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25389 for dvd-discuss-outgoing; Tue, 19 Sep 2000 00:56:22 -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 AAA25386 for ; Tue, 19 Sep 2000 00:56:21 -0400 Received: from swbell.net ([64.216.209.152]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1400DUJAUZ5C@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Mon, 18 Sep 2000 23:52:12 -0500 (CDT) Date: Mon, 18 Sep 2000 23:42:48 -0500 From: Jolley Subject: Re: [dvd-discuss] First Draft of Part II (First Amendment) To: dvd-discuss@eon.law.harvard.edu Message-id: <39C6EEC8.CE54940A@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: <20000919010432.26267.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: > > I mentioned I'd been whittling on the First Amendment section. Here's > my draft (there's one w/o line numbers in the same directory): > > http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_II_numbered.txt > If a judge reads this is he going to be insulted? 160 In order to sustain a regulation under Intermediate Scrutiny, the Judiciary must 161 re-examine (that is what scrutiny means) the reasoning of Congress and find a 162 substantial government interest and a record that supports that the regulation 163 'furthers' it. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 01:07:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26132 for dvd-discuss-outgoing; Tue, 19 Sep 2000 01:07:31 -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 BAA26129 for ; Tue, 19 Sep 2000 01:07:29 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 9A41A108 for ; Mon, 18 Sep 2000 23:27:53 -0500 (CDT) Date: Mon, 18 Sep 2000 23:27:53 -0500 (CDT) From: tim To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Attachments to Kaplan's Latest Amendment In-Reply-To: <200009190201.WAA23510@smtp6.mindspring.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Interesting... Note another "glaring" ommission. (I didn't see if this was in the original - so this might have been there all along). 58 202 The anti-trafficking provision of the DMCA furthers an important governmental interest-the protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in this electronic age. The substantiality of that interest is evident both from the fact that the Constitution specifically empowers Congress to provide for copyright protection 203 and from the significance ... ^^^^^^^^^^^^^^^^^^^^ No mention of "limited times" here. Obviously, the fact that the DMCA allows perpetual control of copyrighted works is no concern to Kaplan. I wonder if the prosecution could have written Kaplan's decision any better than he did? I think not. ... to our economy of trade in copyrighted materials. 204 Indeed, the Supreme Court has made clear that copyright protection itself is "the engine of free expression."205 ... etc, etc.. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 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 / <_/ / / < / (_; Tue, 19 Sep 2000 01:08:41 -0400 Message-ID: <20000919050929.19839.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Mon, 18 Sep 2000 22:09:29 PDT Date: Mon, 18 Sep 2000 22:09:29 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] John Zulauf/Bryan Taylor To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Bryan, I've barely glanced at your draft, but it immediately popped > out how you refer to "Judge Kaplan", "Kaplan", etc. I plead ignorance. Dooh! > Never. > > Always refer to "the Court". Is "the lower Court" ok? Are there any other ways to refer to the ruling? > About the only time you name a judge (obviously not applicable > here) is if you are citing to a concurring or dissenting opinion. If I read you correctly, then something like line 252 is also no good. I refer to "Justice O'Connor, in contrast, says <>, Harper & Row ...". What about line 269's referenec to Justice Souter? __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 02:06:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA29760 for dvd-discuss-outgoing; Tue, 19 Sep 2000 02:06:59 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA29717 for ; Tue, 19 Sep 2000 02:06:52 -0400 Received: from ppp.anonymizer.com (c05-027.015.popsite.net [64.24.76.27]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA06872 for ; Mon, 18 Sep 2000 23:10:01 -0700 (PDT) Message-Id: <4.3.2.7.2.20000918230013.00aacba0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 18 Sep 2000 23:08:02 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici In-Reply-To: <20000919044018.17038.qmail@web512.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 CAA29758 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:40 PM 9/18/2000 -0700, Bryan Taylor wrote: >--- Eric Eldred wrote: > > > I certainly don't agree with Kaplan's tarring of the "movement." > > But how much space should we really allot to refuting it? > >Is it really part of the definitional statement of the interest of the >amici? I'd say we should concentrate on what we are for when we state >our interest. It can be a bit longer than what Jolley just posted on another thread, but here are two examples for reference. The first is from the napster law prof amicus which has been mentioned here: "I. Interests of Amici This brief is submitted by 18 American law professors who teach and write about copyright law. Amici are deeply concerned with the integrity of copyright law, and with assuring that enforcement of copyright owners' rights is consistent with, rather than in conflict with, the copyright laws' goals of promoting innovation and encouraging the broad dissemination of protected works. This case raises a number of important issues, several of them issues of first impression. We believe that this case will have a critical impact on the application of copyright law to the Internet. Napster has raised substantial questions about the application of § 1008 to its users' behavior and Napster's eligibility for the statutory safe harbor established in § 512(d). Both arguments merit serious consideration. Amici will limit this brief, however, to questions related to fair use and contributory infringement. We are particularly concerned that the District Court's approach to these issues would, if followed by other courts, significantly impede the deployment of useful technology that could greatly enhance the value of the Internet for copyright owners as well as consumers." The second is from the amicus by Lessig and friends, joined by ACM Law, in the cp4break case: "STATEMENT OF INTEREST Charles R. Nesson is the William F. Weld Professor of Law and Di­ rector of the Berkman Center for Internet & Society at Harvard Law School. Lawrence Lessig is the Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School. Jonathan Zittrain is the Executive Director of the Berkman Center. Diane Cabell is a Berkman fellow in Intellectual Property studies and is a practitioner in that field of law. Professor Nesson has di­ rected the Berkman Center's research and activities studying Internet speech issues. Professor Lessig has authored many articles and essays relating to the regulation of access of children to material deemed harmful to minors. Pro­ fessor Zittrain has lectured extensively on Internet free speech issues. These amici file this brief in their individual, not institutional, capacities. Joining in this brief as well is the Association for Computing Ma­ chinery (``ACM'')'s Committee on Law and Computing Technology (``ACM Law''). Founded in 1947, ACM is the world's first educational and scientific computing society. Today, ACM is an international scientific and educa­ tional organization dedicated to advancing the arts, sciences, and applica­ tions of information technology. With a world­wide membership of 80,000, ACM functions as a locus for computing professionals and students working in the various fields of Information Technology. ACM has long advocated against censorship on the Internet. ACM studies, and expresses its opinion on, legal issues through ACM Law." Each is short. Ours should be a bit longer and more explanatory perhaps, because we're not names, a traditional group such as ACM; but it shouldn't be a whole lot longer. -------------------------------------------------------------------- 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 Sep 19 02:38:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA30448 for dvd-discuss-outgoing; Tue, 19 Sep 2000 02:38:48 -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 CAA30445 for ; Tue, 19 Sep 2000 02:38:46 -0400 Received: (qmail 3030 invoked by uid 60001); 19 Sep 2000 06:40:01 -0000 Message-ID: <20000919064001.3029.qmail@web116.yahoomail.com> Received: from [128.122.253.144] by web116.yahoomail.com; Mon, 18 Sep 2000 23:40:01 PDT Date: Mon, 18 Sep 2000 23:40:01 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] A short interests of the amici To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > I know it's painful, but here is a very short > interests of the amici. > Let's not loose our readers with a long rant. > Perhaps someone can add > in the "source of its authority to file" that Jim > mentioned. > > -- > The amici are an eclectic group of engineers, > scientists, journalists > lawyers, programmers, publishers, teachers, > hobbyists, authors, > consumers, > inventors, and more. We are deeply disturbed by the > Court's ruling > in that it directly affects our livelihoods by > restricting our freedom > to express and share our ideas, our rights to fair > use of copyrighted > works that we have purchased, and obvious abuses of > technology to > extend to an unlimited time a copyright holders > control of a work. --------------------- This is a slightly re-worked version of the above. Pls. add or change as needed as I may not necessarily grasp the concept. # The amici represent a cross-section of engineers, scientists, lawyers, professors, technologists, students, and inventors, to name just a few. We are profoundly disturbed by the Court's decision to uphold unlimited time control of copyright owners through extraneous technological application while adversely threatened our basic rights to express and exchange ideas; denying access to fair use of works obtained through purchase.# (60) __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 03:16:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA30957 for dvd-discuss-outgoing; Tue, 19 Sep 2000 03:16:22 -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 DAA30954 for ; Tue, 19 Sep 2000 03:16:21 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 1657D99C82; Tue, 19 Sep 2000 00:17:34 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id D5012938C0 for ; Tue, 19 Sep 2000 00:17:34 -0700 (PDT) Date: Tue, 19 Sep 2000 00:17:34 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici In-Reply-To: <20000918225016.F2708@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 Mon, 18 Sep 2000, Eric Eldred wrote: > The legal response to Kaplan's decision should not be sidetracked > by his mischaracterization. It should only be necessary, I think, > to correct his misstatement that the defendants are part of a > movement that is trying to open and make "free" trade secrets. Uh-uh. The defendant is from 2600 magazine. If you've ever read 2600, it's not hard to see that 2600 *really is* part of such a movement (or at least heavily promotes such ideas). Kaplan's not mischaracterizing it; it was the DVD-CCA that said that about open-source, not Kaplan. Kaplan's actual mischaracterization is more subtle: he's trying to imply that because 2600 is like this (true), the anti-MPAA side in general is like this (not true). But if you're going to address that, it's not a good idea to act like Kaplan wrote that out explicitly, because he didn't. If you write in a brief that Kaplan mischaracterized open-source and someone who reads that brief then reads Kaplan's decision, they'll probably just think we're a bunch of liars. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 03:20:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA31108 for dvd-discuss-outgoing; Tue, 19 Sep 2000 03:20:53 -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 DAA31105 for ; Tue, 19 Sep 2000 03:20:47 -0400 Received: from ppp.anonymizer.com (c05-027.015.popsite.net [64.24.76.27]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id AAA05319 for ; Tue, 19 Sep 2000 00:23:56 -0700 (PDT) Message-Id: <4.3.2.7.2.20000919001416.00aada30@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 19 Sep 2000 00:21:58 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] John Zulauf/Bryan Taylor In-Reply-To: <20000919050929.19839.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 10:09 PM 9/18/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > Bryan, I've barely glanced at your draft, but it immediately popped > > out how you refer to "Judge Kaplan", "Kaplan", etc. > >I plead ignorance. Dooh! What? You don't yet know everything? ;-) > > Never. > > > > Always refer to "the Court". > >Is "the lower Court" ok? Are there any other ways to refer to the >ruling? lower Court is OK, though it could be a wasted word. The Opinion, the decision, etc. > > About the only time you name a judge (obviously not applicable > > here) is if you are citing to a concurring or dissenting opinion. > >If I read you correctly, then something like line 252 is also no good. >I refer to "Justice O'Connor, in contrast, says <>, Harper & Row >...". Yes. O'Connor, as the author of the majority Opinion, was writing for the Court, not herself. Judges are big on institutional identity. >What about line 269's referenec to Justice Souter? Same, he's writing for the Court. BTW, it's Campbell v. Acuff-Rose Music, Inc., __ U.S. __ (1994), not Cambell v. Acuff-Rose, No. 92-1292, (1994) at 7. (I don't have the volume and page number handy, but easy enough to get long before the brief is finalized.) -------------------------------------------------------------------- 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 Sep 19 05:21:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA00516 for dvd-discuss-outgoing; Tue, 19 Sep 2000 05:21:15 -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 FAA00513 for ; Tue, 19 Sep 2000 05:21:14 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id DAA14022 for ; Tue, 19 Sep 2000 03:22:32 -0600 Date: Tue, 19 Sep 2000 03:22:32 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Candidate draft: The Interests of the Amici 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 So who cares where the quote came from? The DVDCCA is one of the P's in the SDNY case as of the "eleventh hour amendment", so they can eat their words on both coasts. Either way, the DVDCCA and the MPAA are hand-in-glove, and if we can backhandedly slam the unholy alliance, all the better. Just get the attribution right and maybe take a small tangent explaining the significance, and go on. On Mon, 18 Sep 2000, Ken Arromdee wrote: > On Mon, 18 Sep 2000, Sham Gardner wrote: > > > > Kaplan said, "[t]he defendants ... are adherents of a movement ..." > > > > He did not say explicitly which movement he meant. He could reasonably > > > > claim that he was talking about the hacker/cracker movement, not > > > > the open source movement. > > > The claims about the Open Source movement are not from Kaplan, they are from > > > the MPAA's opposition brief: > > > > > > "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 from the California case (i.e. the DVDCCA, not the MPAA) isn't it? > > Oops. Yes, you're right. > > But this is probably the origin of the idea that "Kaplan" mischaracterized > the open source movement. > -- 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 Tue Sep 19 05:27:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA00697 for dvd-discuss-outgoing; Tue, 19 Sep 2000 05:27:16 -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 FAA00694 for ; Tue, 19 Sep 2000 05:27:15 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id DAA14361 for ; Tue, 19 Sep 2000 03:28:34 -0600 Date: Tue, 19 Sep 2000 03:28:34 -0600 (MDT) From: John Galt To: dvd-discuss Subject: Re: [dvd-discuss] A short interests of the amici In-Reply-To: <39C6EB5E.E3F1C360@swbell.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I still think the OSS movement has to fall in here--mostly as an indication that the DVDCCA is on it's logical last legs: name calling is the last refuge of the incompetent and all that... On Mon, 18 Sep 2000, Jolley wrote: > I know it's painful, but here is a very short interests of the amici. > Let's not loose our readers with a long rant. Perhaps someone can add > in the "source of its authority to file" that Jim mentioned. > > ---- > The amici are an eclectic group of engineers, scientists, journalists > lawyers, programmers, publishers, teachers, hobbyists, authors, > consumers, > inventors, and more. We are deeply disturbed by the Court's ruling > in that it directly affects our livelihoods by restricting our freedom > to express and share our ideas, our rights to fair use of copyrighted > works that we have purchased, and obvious abuses of technology to > extend to an unlimited time a copyright holders control of a work. > -- 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 Tue Sep 19 07:22:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA02383 for dvd-discuss-outgoing; Tue, 19 Sep 2000 07:22:32 -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 HAA02380 for ; Tue, 19 Sep 2000 07:22:31 -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 HAA07523 for ; Tue, 19 Sep 2000 07:23:50 -0400 (EDT) Message-ID: <39C74CC6.D0DDA2EB@mediaone.net> Date: Tue, 19 Sep 2000 07:23:50 -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] A short interests of the amici References: <20000919064001.3029.qmail@web116.yahoomail.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 "Tuyet A. Ngoc Tran" wrote: ... > # > The amici represent a cross-section of engineers, > scientists, lawyers, professors, technologists, > students, and inventors, to name just a few. We are > profoundly disturbed by the Court's decision to uphold > unlimited time control of copyright owners through > extraneous technological application while adversely > threatened our basic rights to express and exchange "theatening" > ideas; denying access to fair use of works obtained > through purchase.# (60) > I agree to some extent with John Gault. We need to at least allude to the "open movement" here. "inventers, and other believers in the open exchange of knowledge." ? -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 10:33:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11963 for dvd-discuss-outgoing; Tue, 19 Sep 2000 10:33:01 -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 KAA11959 for ; Tue, 19 Sep 2000 10:32:59 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Tue, 19 Sep 2000 17:31:58 +0200 Message-ID: <39C7DDD2.14393A23@easybase.com> Date: Tue, 19 Sep 2000 17:42:42 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-0.23mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Pavlovich quash motion 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 KAA11961 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Any news on ruling on Pavlovich motion to quash? I haven't seen any news on EFF for long time... Rgrds, Moshe Vainer moshev@easybase.com From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 13:51:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22514 for dvd-discuss-outgoing; Tue, 19 Sep 2000 13:51:31 -0400 Received: from web515.mail.yahoo.com (web515.mail.yahoo.com [216.115.104.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA22511 for ; Tue, 19 Sep 2000 13:51:28 -0400 Message-ID: <20000919175218.2961.qmail@web515.mail.yahoo.com> Received: from [63.79.228.253] by web515.mail.yahoo.com; Tue, 19 Sep 2000 10:52:18 PDT Date: Tue, 19 Sep 2000 10:52:18 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Musis is Functional To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 re-read the defense brief and came across a paragraph they made that I thought proves the point about functionality not lessening the protection afforded to speech. We could probably incorporate this into our argument. Music is functional, just like software. Music, for example, is speech protected under the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). The music inscribed in code on the roll of a player piano is no less protected for being wholly functional. Like source code converted to object code, it "communicates" to and directs the instrument itself, rather than the musician, to produce the music. That does not mean it is not speech. Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 13:57:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22686 for dvd-discuss-outgoing; Tue, 19 Sep 2000 13:57:10 -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 NAA22683 for ; Tue, 19 Sep 2000 13:57:08 -0400 Received: from jy01 (user-2inigds.dialup.mindspring.com [165.121.65.188]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id NAA04615 for ; Tue, 19 Sep 2000 13:58:24 -0400 (EDT) Message-Id: <200009191758.NAA04615@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 19 Sep 2000 13:49:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Pavlovich quash motion In-Reply-To: <39C7DDD2.14393A23@easybase.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Judge Elfving denied the Pavlovich motion to quash on August 29. Pavlovich has appealed that decision with a filing by his attorney Allonn Levy on September 11 to the California Court of Appeal, Sixth Appellate District. We got the 39-page appeal from EFF yesterday in hardcopy and will have it up in a day or so. There were also about 250 pages of Exhibits A-F. Exhibits E and F are the order denying the quash motion and the related 19-page hearing transcript -- which we will also offer. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 16:54:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06400 for dvd-discuss-outgoing; Tue, 19 Sep 2000 16:54:15 -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 QAA06395 for ; Tue, 19 Sep 2000 16:54:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA04856 for dvd-discuss@eon.law.harvard.edu; Tue, 19 Sep 2000 16:55:43 -0400 Date: Tue, 19 Sep 2000 16:55:38 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A short interests of the amici Message-ID: <20000919165538.J2708@eldritchpress.org> References: <20000919064001.3029.qmail@web116.yahoomail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000919064001.3029.qmail@web116.yahoomail.com>; from tatn2000@yahoo.com on Mon, Sep 18, 2000 at 11:40:01PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu another try?.... STATEMENT OF INTEREST --------------------- The amici represent engineers, scientists, lawyers, professors, technologists, students, and inventors, all of whom come together voluntarily on OpenLaw, a unique public forum for discussing law and the Internet and preparing briefs openly and cooperatively online. Our interest is in helping the Court understand technology and how to apply copyright law to technology and the Internet. We are all profoundly disturbed by the Court's decision to extend almost unlimited copyright and patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests who seek to lock up technology, but instead we belong to the Open Source or Free Software movement wrongly maligned by plaintiffs and the Court. The lower court's decision profoundly threatens our rights and freedom and community--without this environment the current Internet would not have been invented, and the next Internet or equivalent technology will not arise. We do not seek to steal any "property" of plaintiffs; instead, we object to plaintiffs stealing from the public domain and locking it up forever. We hope that the Courts will agree that the Constitution will not permit this. Although OpenLaw is kindly hosted by the Berkman Center for Internet and Society at Harvard Law School, we do not represent the Center's position, but instead write as individuals and as an independent community. On Mon, Sep 18, 2000 at 11:40:01PM -0700, Tuyet A. Ngoc Tran wrote: > --- Jolley wrote: > > I know it's painful, but here is a very short > > interests of the amici. > > Let's not loose our readers with a long rant. > > Perhaps someone can add > > in the "source of its authority to file" that Jim > > mentioned. > > > > -- > > The amici are an eclectic group of engineers, > > scientists, journalists > > lawyers, programmers, publishers, teachers, > > hobbyists, authors, > > consumers, > > inventors, and more. We are deeply disturbed by the > > Court's ruling > > in that it directly affects our livelihoods by > > restricting our freedom > > to express and share our ideas, our rights to fair > > use of copyrighted > > works that we have purchased, and obvious abuses of > > technology to > > extend to an unlimited time a copyright holders > > control of a work. > --------------------- > This is a slightly re-worked version of the above. > Pls. add or change as needed as I may not necessarily > grasp the concept. > # > The amici represent a cross-section of engineers, > scientists, lawyers, professors, technologists, > students, and inventors, to name just a few. We are > profoundly disturbed by the Court's decision to uphold > unlimited time control of copyright owners through > extraneous technological application while adversely > threatened our basic rights to express and exchange > ideas; denying access to fair use of works obtained > through purchase.# (60) > > > > __________________________________________________ > Do You Yahoo!? > Send instant messages & get email alerts with Yahoo! Messenger. > http://im.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 Tue Sep 19 18:11:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28961 for dvd-discuss-outgoing; Tue, 19 Sep 2000 18:11:34 -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 SAA28943 for ; Tue, 19 Sep 2000 18:11:32 -0400 Message-ID: <20000919221222.21117.qmail@web510.mail.yahoo.com> Received: from [64.81.25.37] by web510.mail.yahoo.com; Tue, 19 Sep 2000 15:12:22 PDT Date: Tue, 19 Sep 2000 15:12:22 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] First Draft of Part II (First Amendment) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jolley wrote: > Bryan Taylor wrote: > If a judge reads this is he going to be insulted? > > 160 In order to sustain a regulation under Intermediate Scrutiny, > the Judiciary must > 161 re-examine (that is what scrutiny means) the reasoning of > Congress and find a > 162 substantial government interest and a record that supports > that the regulation > 163 'furthers' it. This should be rephrased. I'm trying to say that intermediate scrutiny actually does mean that judges have to independently review the four questions that the standard asks them to. Checks and Balances absolutely require that they cannot just defer to Congress. Otherwise, the judiciary would never strike down an Unconstitutional law. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 18:51:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01900 for dvd-discuss-outgoing; Tue, 19 Sep 2000 18:51:30 -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 SAA01897 for ; Tue, 19 Sep 2000 18:51:28 -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 SAA22280 for ; Tue, 19 Sep 2000 18:52:48 -0400 (EDT) Message-ID: <39C7EE40.CE5E2B6E@mediaone.net> Date: Tue, 19 Sep 2000 18:52:48 -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] A short interests of the amici References: <20000919064001.3029.qmail@web116.yahoomail.com> <20000919165538.J2708@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: > > another try?.... > 1 > STATEMENT OF INTEREST 2 > --------------------- 3 > The amici represent engineers, scientists, lawyers, professors, technologists, 4 > students, and inventors, all of whom come together voluntarily on OpenLaw, a 5 > unique public forum for discussing law and the Internet and preparing briefs 6 > openly and cooperatively online. 7 > 8 > Our interest is in helping the Court understand technology and how to apply 9 > copyright law to technology and the Internet. We are all profoundly disturbed 10 > by the Court's decision to extend almost unlimited copyright and patent-like 11 > control over digital media to movie studios and other big publishers. We do 12 > not represent commercial interests who seek to lock up technology, but instead 13 > we belong to the Open Source or Free Software movement wrongly maligned by 14 > plaintiffs and the Court. The lower court's decision profoundly threatens our 15 > rights and freedom and community--without this environment the current Internet 16 > would not have been invented, and the next Internet or equivalent technology 17 > will not arise. We do not seek to steal any "property" of plaintiffs; instead, 18 > we object to plaintiffs stealing from the public domain and locking it up 19 > forever. We hope that the Courts will agree that the Constitution will not 20 > permit this. 21 > 22 > Although OpenLaw is kindly hosted by the Berkman Center for Internet and 23 > Society at Harvard Law School, we do not represent the Center's position, but 24 > instead write as individuals and as an independent community. 25 > ... > -- > "Eric" Eric Eldred Eldritch Press > mailto:Eldred@EldritchPress.org > http://www.eldritchpress.org/EricEldred.vcf Going to be hard to lose words here... 5,6 -- "public forum for discussing law and the Internet openly online." 8 -- lose "technology and " 13 -- pick one of "open source" or "free software" 14 -- mention just the plaintiffs, not the court. 15 -- "rights, freedom and community" Would have to lose more to get under 20... -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 20:12:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04718 for dvd-discuss-outgoing; Tue, 19 Sep 2000 20:12:48 -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 UAA04715 for ; Tue, 19 Sep 2000 20:12:46 -0400 Received: from swbell.net ([64.216.209.134]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1500ETMRN6VU@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 19 Sep 2000 18:52:18 -0500 (CDT) Date: Tue, 19 Sep 2000 18:55:20 -0500 From: Jolley Subject: Re: [dvd-discuss] A short interests of the amici To: dvd-discuss@eon.law.harvard.edu Message-id: <39C7FCE8.29E794BC@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: <20000919064001.3029.qmail@web116.yahoomail.com> <20000919165538.J2708@eldritchpress.org> <39C7EE40.CE5E2B6E@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > > Eric Eldred wrote: > > > > another try?.... > > > 1 > STATEMENT OF INTEREST > 2 > --------------------- > 3 > The amici represent engineers, scientists, lawyers, professors, > technologists, > 4 > students, and inventors, all of whom come together voluntarily on > OpenLaw, a > 5 > unique public forum for discussing law and the Internet and > preparing briefs > 6 > openly and cooperatively online. > 7 > > 8 > Our interest is in helping the Court understand technology and how > to apply > 9 > copyright law to technology and the Internet. We are all > profoundly disturbed > 10 > by the Court's decision to extend almost unlimited copyright and > patent-like > 11 > control over digital media to movie studios and other big > publishers. We do > 12 > not represent commercial interests who seek to lock up technology, > but instead > 13 > we belong to the Open Source or Free Software movement wrongly > maligned by > 14 > plaintiffs and the Court. The lower court's decision profoundly > threatens our > 15 > rights and freedom and community--without this environment the > current Internet > 16 > would not have been invented, and the next Internet or equivalent > technology > 17 > will not arise. We do not seek to steal any "property" of > plaintiffs; instead, > 18 > we object to plaintiffs stealing from the public domain and locking > it up > 19 > forever. We hope that the Courts will agree that the Constitution > will not > 20 > permit this. > 21 > > 22 > Although OpenLaw is kindly hosted by the Berkman Center for > Internet and > 23 > Society at Harvard Law School, we do not represent the Center's > position, but > 24 > instead write as individuals and as an independent community. > 25 > > ... > > -- > > "Eric" Eric Eldred Eldritch Press > > mailto:Eldred@EldritchPress.org > > http://www.eldritchpress.org/EricEldred.vcf > > Going to be hard to lose words here... > > 5,6 -- "public forum for discussing law and the Internet openly > online." > > 8 -- lose "technology and " > > 13 -- pick one of "open source" or "free software" > > 14 -- mention just the plaintiffs, not the court. > > 15 -- "rights, freedom and community" > > Would have to lose more to get under 20... > > -- > Sphere. > > Government has no legitimate interest in > protecting a monopoly from free speech. A good try and the length is looking good. And of course, a few comments. 5 -- Remove "and the Internet". This group is not limited to discussion of the Internet. 10 -- There is nothing "almost" about it. 12 - 20 -- Not everyone in this discussion is part of the Open source movement. (Not that there's anything wrong with that.) Most of this doesn't sit right with me yet. I need to think about it a little more. Perhaps a little more towards how our various backgrounds can help the court in making a correct decision. It seems a little defensive. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 20:18:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05015 for dvd-discuss-outgoing; Tue, 19 Sep 2000 20:18:01 -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 UAA05012 for ; Tue, 19 Sep 2000 20:18:00 -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 UAA06984 for ; Tue, 19 Sep 2000 20:19:18 -0400 (EDT) Message-ID: <39C80284.CF33A095@mediaone.net> Date: Tue, 19 Sep 2000 20:19:16 -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] STATEMENT OF INTEREST Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is just Eric Eldred's statement -- somewhat gutted. [With cheating] this fits in twenty 12 point Courier lines on an 8 1/2 by 11 with 1" margines... STATEMENT OF INTEREST The amici represent engineers, scientists, lawyers, professors, technologists, students, and inventors, all of whom come together voluntarily on OpenLaw[1], a public forum for discussing law and the Internet openly online. Our interest is in helping the Court understand how to apply copyright law to the Internet. We are all deeply disturbed by the Court's decision to extend almost unlimited patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests, but instead we belong to the Open Source movement wrongly maligned by plaintiffs. The lower court's decision threatens our rights, freedom, and community--without this community the current Internet would not have been invented, and the next Internet will not arise. We do not seek to steal any "property"; instead, we object to plaintiffs stealing from the public domain. We hope the Courts will agree that the Constitution does not permit this. --- [1]Although OpenLaw is kindly hosted by the Berkman Center for Internet and Society at Harvard Law School, we do not represent the Center's position, but instead write as individuals and as an independent community. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 20:32:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05786 for dvd-discuss-outgoing; Tue, 19 Sep 2000 20:32:19 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05783 for ; Tue, 19 Sep 2000 20:32:16 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id UAA24745 for ; Tue, 19 Sep 2000 20:33:06 -0400 Date: Tue, 19 Sep 2000 20:33:06 -0400 (EDT) From: Joshua Stratton To: dvd-discuss Subject: Re: [dvd-discuss] STATEMENT OF INTEREST In-Reply-To: <39C80284.CF33A095@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 Tue, 19 Sep 2000, Sphere wrote: > > STATEMENT OF INTEREST > > The amici represent engineers, scientists, lawyers, professors, > technologists, students, and inventors, all of whom come together > voluntarily on OpenLaw[1], a public forum for discussing law and the > Internet openly online. 'a public online forum for discussing law and the Internet openly.' Though I would suggest 'technology' as a replacement for the Internet. > Our interest is in helping the Court understand how to apply copyright > law to the Internet. We are all deeply disturbed by the Court's again wrt the Internet perhaps 'newly developed mediums and technologies' ? > decision to extend almost unlimited patent-like control over digital > media to movie studios and other big publishers. We do not represent > commercial interests, but instead we belong to the Open Source movement > wrongly maligned by plaintiffs. The lower court's decision threatens > our rights, freedom, and community--without this community the current > Internet would not have been invented, and the next Internet will not _that_ is a good place to put the Internet. > arise. We do not seek to steal any "property"; instead, we object to I wouldn't put property in quotes here; we can best attack the argument that we're all a bunch of thieves by temporarily conceeding on the 'copyrighted material as property' issue. otherwise we run the risk of portraying ourselves as 'respectful of property, we just don't think there is any' which I'm sure the P's would like us to do. > plaintiffs stealing from the public domain. We hope the Courts will > agree that the Constitution does not permit this. > --- > [1]Although OpenLaw is kindly hosted by the Berkman Center for Internet > and Society at Harvard Law School, we do not represent the Center's > position, but instead write as individuals and as an independent > community. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 20:35:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA06038 for dvd-discuss-outgoing; Tue, 19 Sep 2000 20:35:43 -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 UAA06035 for ; Tue, 19 Sep 2000 20:35:42 -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 UAA19295 for ; Tue, 19 Sep 2000 20:37:00 -0400 (EDT) Message-ID: <39C806AB.DF9B15DE@mediaone.net> Date: Tue, 19 Sep 2000 20:36:59 -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] A short interests of the amici References: <20000919064001.3029.qmail@web116.yahoomail.com> <20000919165538.J2708@eldritchpress.org> <39C7EE40.CE5E2B6E@mediaone.net> <39C7FCE8.29E794BC@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: > Sphere wrote: > > Eric Eldred wrote: ... [I deleted all Eric's original text. The formatting had made it unreadable.] ... > > > > Going to be hard to lose words here... > > > > 5,6 -- "public forum for discussing law and the Internet openly > > online." > > > > 8 -- lose "technology and " > > > > 13 -- pick one of "open source" or "free software" > > > > 14 -- mention just the plaintiffs, not the court. > > > > 15 -- "rights, freedom and community" > > > > Would have to lose more to get under 20... > > > > -- > > Sphere. > > > > Government has no legitimate interest in > > protecting a monopoly from free speech. > > A good try and the length is looking good. And of course, a few > comments. It's too long. See my butchering of the original; which has the only socially redeeming value that it fits. > 5 -- Remove "and the Internet". This group is not limited to > discussion of the Internet. I lost "technology and" in my make it fit at all costs version, but they are about the same size -- so either way is ok. > 10 -- There is nothing "almost" about it. Yes, "almost" could go. > 12 - 20 -- Not everyone in this discussion is part of the Open > source movement. (Not that there's anything wrong with > that.) Most of this doesn't sit right with me yet. I > need to think about it a little more. Perhaps a little > more towards how our various backgrounds can help the court > in making a correct decision. It seems a little defensive. I'm a bit troubled by this too, in that OpenLaw is not exactly open source, but still holds the same ideals. Truth is to be found through open discussion, not trade secrets. I don't want to use the word "Free" for obvious political reasons. How do we capture "open source/law/universe" in 11 characters or less? -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 21:07:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06934 for dvd-discuss-outgoing; Tue, 19 Sep 2000 21:07:08 -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 VAA06931 for ; Tue, 19 Sep 2000 21:07:06 -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 VAA26972 for ; Tue, 19 Sep 2000 21:08:26 -0400 (EDT) Message-ID: <39C80E0A.9A664A10@mediaone.net> Date: Tue, 19 Sep 2000 21:08:26 -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] STATEMENT OF INTEREST 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: > > On Tue, 19 Sep 2000, Sphere wrote: > > > > > STATEMENT OF INTEREST > > > > The amici represent engineers, scientists, lawyers, professors, > > technologists, students, and inventors, all of whom come together > > voluntarily on OpenLaw[1], a public forum for discussing law and the > > Internet openly online. > > 'a public online forum for discussing law and the Internet openly.' > > Though I would suggest 'technology' as a replacement for the Internet. That's two calls for technology, in slightly different locations. Do we home on technology? Right at the moment, losing "online" doesn't win any lines, but I've removed it from my draft anyway. I expect Eric to rewrite this after we've spit on it enough. > > Our interest is in helping the Court understand how to apply copyright > > law to the Internet. We are all deeply disturbed by the Court's > > again wrt the Internet > > perhaps 'newly developed mediums and technologies' ? I'm not accepting any expanding grammars. If it ain't as small it's out the door. If I can buy a couple of lines then we can reconsider. "to technology" is smaller than "to the Internet". That's how I've got it at the moment. > > decision to extend almost unlimited patent-like control over digital > > media to movie studios and other big publishers. We do not represent > > commercial interests, but instead we belong to the Open Source movement > > wrongly maligned by plaintiffs. The lower court's decision threatens > > our rights, freedom, and community--without this community the current > > Internet would not have been invented, and the next Internet will not > > _that_ is a good place to put the Internet. I'm not sure of your point. > > arise. We do not seek to steal any "property"; instead, we object to > > I wouldn't put property in quotes here; we can best attack the argument > that we're all a bunch of thieves by temporarily conceeding on the > 'copyrighted material as property' issue. otherwise we run the risk of > portraying ourselves as 'respectful of property, we just don't think there > is any' which I'm sure the P's would like us to do. Two quotes gone, and I just had the line count decrease. I've got a footnote which doesn't fit yet... > > plaintiffs stealing from the public domain. We hope the Courts will > > agree that the Constitution does not permit this. > > --- > > [1]Although OpenLaw is kindly hosted by the Berkman Center for Internet > > and Society at Harvard Law School, we do not represent the Center's > > position, but instead write as individuals and as an independent > > community. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 22:22:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09936 for dvd-discuss-outgoing; Tue, 19 Sep 2000 22:22:38 -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 WAA09933 for ; Tue, 19 Sep 2000 22:22:36 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id WAA24921 for ; Tue, 19 Sep 2000 22:23:26 -0400 Date: Tue, 19 Sep 2000 22:23:26 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST In-Reply-To: <39C80E0A.9A664A10@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 Tue, 19 Sep 2000, Sphere wrote: > > > decision to extend almost unlimited patent-like control over digital > > > media to movie studios and other big publishers. We do not represent > > > commercial interests, but instead we belong to the Open Source movement > > > wrongly maligned by plaintiffs. The lower court's decision threatens > > > our rights, freedom, and community--without this community the current > > > Internet would not have been invented, and the next Internet will not > > > > _that_ is a good place to put the Internet. > > > I'm not sure of your point. I don't like pushing the list as having an intimate connection to the Internet. While the 'net is important in this case, ultimately it comes down to DVDs, CSS and DeCSS as far as the realm of technologies go. Without legitimate RE'd decryption software we're going to be upset regardless of whether or not we can distribute them on the net; I think that we have a much easier time getting the linking injunction overturned than we do DeCSS getting legitimized. (just as bomb making instructions are legal and bombs are not) But it is good to point to a specific example of something important that could not have been developed in an environment such as the P's would like to see. And that's why the Internet makes a great example, even though we're all concerned with events and technologies both on and off the net. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 22:35:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10389 for dvd-discuss-outgoing; Tue, 19 Sep 2000 22:35:29 -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 WAA10386 for ; Tue, 19 Sep 2000 22:35:23 -0400 Received: from swbell.net ([64.216.209.134]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1500FS3YUZYM@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Tue, 19 Sep 2000 21:28:12 -0500 (CDT) Date: Tue, 19 Sep 2000 21:30:21 -0500 From: Jolley Subject: Re: [dvd-discuss] STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu Message-id: <39C8213D.E5BCA996@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: <39C80E0A.9A664A10@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > > Joshua Stratton wrote: > > > > On Tue, 19 Sep 2000, Sphere wrote: > > > > > > > > STATEMENT OF INTEREST > > > > > > The amici represent engineers, scientists, lawyers, professors, > > > technologists, students, and inventors, all of whom come together > > > voluntarily on OpenLaw[1], a public forum for discussing law and the > > > Internet openly online. > > > > 'a public online forum for discussing law and the Internet openly.' > > > > Though I would suggest 'technology' as a replacement for the Internet. > > That's two calls for technology, in slightly different > locations. Do we home on technology? > OpenLaw is an online public forum for discussing law. It's not a matter of substituting technology for internet in the sentance. Neither one belongs here. Try this: The amici represent engineers, scientists, lawyers, professors, technologists, students, and inventors, all of whom come together voluntarily on OpenLaw[1], an online public forum for discussing law. From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 19 22:56:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10952 for dvd-discuss-outgoing; Tue, 19 Sep 2000 22:56:55 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10949 for ; Tue, 19 Sep 2000 22:56:54 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA00235 for ; Tue, 19 Sep 2000 23:05:54 -0400 (EDT) Message-ID: <39C827C7.15CBC847@mediaone.net> Date: Tue, 19 Sep 2000 22:58:15 -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] STATEMENT OF INTEREST References: <39C80E0A.9A664A10@mediaone.net> <39C8213D.E5BCA996@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: > > Sphere wrote: > > > > Joshua Stratton wrote: > > > > > > On Tue, 19 Sep 2000, Sphere wrote: > > > > > > > > > > > STATEMENT OF INTEREST > > > > > > > > The amici represent engineers, scientists, lawyers, professors, > > > > technologists, students, and inventors, all of whom come together > > > > voluntarily on OpenLaw[1], a public forum for discussing law and the > > > > Internet openly online. > > > > > > 'a public online forum for discussing law and the Internet openly.' > > > > > > Though I would suggest 'technology' as a replacement for the Internet. > > > > That's two calls for technology, in slightly different > > locations. Do we home on technology? > > > > OpenLaw is an online public forum for discussing law. It's not a matter > of substituting technology for internet in the sentance. Neither one > belongs here. > > Try this: > > The amici represent engineers, scientists, lawyers, professors, > technologists, students, and inventors, all of whom come together > voluntarily on OpenLaw[1], an online public forum for discussing law. I've no problems with this. With dropping "technologists"; whixh I don't know what it means, I even gain a line. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 00:30:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13465 for dvd-discuss-outgoing; Wed, 20 Sep 2000 00:30:47 -0400 Received: from web113.yahoomail.com (web113.yahoomail.com [205.180.60.84]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA13462 for ; Wed, 20 Sep 2000 00:30:44 -0400 Received: (qmail 18921 invoked by uid 60001); 20 Sep 2000 04:31:56 -0000 Message-ID: <20000920043156.18920.qmail@web113.yahoomail.com> Received: from [216.165.4.35] by web113.yahoomail.com; Tue, 19 Sep 2000 21:31:56 PDT Date: Tue, 19 Sep 2000 21:31:56 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu To my mind, it's simply a general term for those who are Net architects, in planning, visual artist, sound designer and other area of new media but not necessarily programmers. Although this only one voice but I'm from the techno-art who happens to also understand open source. --- Sphere wrote: > With dropping > "technologists"; whixh > I don't know what it means, > > Jolley wrote: > > > > Sphere wrote: > > > > > > Joshua Stratton wrote: > > > > > > > > On Tue, 19 Sep 2000, Sphere wrote: > > > > > > > > > > > > > > STATEMENT OF INTEREST > > > > > > > > > > The amici represent engineers, scientists, > lawyers, professors, > > > > > technologists, students, and inventors, all > of whom come together > > > > > voluntarily on OpenLaw[1], a public forum > for discussing law and the > > > > > Internet openly online. > > > > > > > > 'a public online forum for discussing law and > the Internet openly.' > > > > > > > > Though I would suggest 'technology' as a > replacement for the Internet. > > > > > > That's two calls for technology, in slightly > different > > > locations. Do we home on technology? > > > > > > > OpenLaw is an online public forum for discussing > law. It's not a matter > > of substituting technology for internet in the > sentance. Neither one > > belongs here. > > > > Try this: > > > > The amici represent engineers, scientists, > lawyers, professors, > > technologists, students, and inventors, all of > whom come together > > voluntarily on OpenLaw[1], an online public forum > for discussing law. > > > > I've no problems with this. I even gain a line. > > > > -- > Sphere. > > Government has no legitimate interest in > protecting a monopoly from free speech. > > > __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 01:03:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14236 for dvd-discuss-outgoing; Wed, 20 Sep 2000 01:03:34 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA14233 for ; Wed, 20 Sep 2000 01:03:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA05588 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 01:05:08 -0400 Date: Wed, 20 Sep 2000 01:04:58 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Message-ID: <20000920010458.B5168@eldritchpress.org> References: <39C80E0A.9A664A10@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39C80E0A.9A664A10@mediaone.net>; from sphere1952@mediaone.net on Tue, Sep 19, 2000 at 09:08:26PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 19, 2000 at 09:08:26PM -0400, Sphere wrote: >... > I expect Eric to rewrite this after we've spit on > it enough. Well, it would be better if when you suggest an edit you just edit the old into a new, complete form. I think it might be better if you and Jolley look back at James Tyre's quoting of the earlier amicus and note its length and Jim's suggestion of how to approach it. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 01:12:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14539 for dvd-discuss-outgoing; Wed, 20 Sep 2000 01:12:14 -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 BAA14536 for ; Wed, 20 Sep 2000 01:12:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA05604 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 01:13:49 -0400 Date: Wed, 20 Sep 2000 01:13:39 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Message-ID: <20000920011339.C5168@eldritchpress.org> References: <39C80E0A.9A664A10@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from cpt@gryphon.auspice.net on Tue, Sep 19, 2000 at 10:23:26PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Sep 19, 2000 at 10:23:26PM -0400, Joshua Stratton wrote: > On Tue, 19 Sep 2000, Sphere wrote: > > > > > decision to extend almost unlimited patent-like control over digital > > > > media to movie studios and other big publishers. We do not represent > > > > commercial interests, but instead we belong to the Open Source movement > > > > wrongly maligned by plaintiffs. The lower court's decision threatens > > > > our rights, freedom, and community--without this community the current > > > > Internet would not have been invented, and the next Internet will not > > > > > > _that_ is a good place to put the Internet. > > > > > > I'm not sure of your point. > > I don't like pushing the list as having an intimate connection to the > Internet. While the 'net is important in this case, ultimately it comes > down to DVDs, CSS and DeCSS as far as the realm of technologies go. The Internet is important in one respect. Without the Internet it would be difficult for ordinary folks to share copies of digital media. The plaintiffs' argument that this is now so easy that they need strong protection is one we need to address. If we don't, then the Internet will be made safe for e-commerce and the open folks will be excluded. For example, the decision greatly affects how hyperlinks can be made on the Internet--it is biased toward e-commerce and away from open file sharing. Yet the Internet now makes it possible for everyperson to be her own publisher--will everyperson get the First Amendment rights of free speech and free press, or will the media giants use copyright law to suppress it, and convert the Internet into a giant pay-per-view channel device for content they now own? > Without legitimate RE'd decryption software we're going to be upset > regardless of whether or not we can distribute them on the net; True, but this decision really affects "trafficking" and not the RE itself. >I think > that we have a much easier time getting the linking injunction overturned > than we do DeCSS getting legitimized. (just as bomb making instructions > are legal and bombs are not) I don't think it will be in our interest to have the appeals court try to fine tune Kaplan's decision about linking--I agree it should be thrown out--but this doesn't rest on a distinction between instructions and function. > But it is good to point to a specific example of something important that > could not have been developed in an environment such as the P's would like > to see. And that's why the Internet makes a great example, even though > we're all concerned with events and technologies both on and off the net. Yes, we are concerned about all the implications of technology here. We need to be able to explain it in terms the judges can easily comprehend. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 01:37:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA15788 for dvd-discuss-outgoing; Wed, 20 Sep 2000 01:37:01 -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 BAA15785 for ; Wed, 20 Sep 2000 01:37:00 -0400 Received: from swbell.net ([64.216.209.134]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G16007IJ7BAEF@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 00:30:47 -0500 (CDT) Date: Wed, 20 Sep 2000 00:33:48 -0500 From: Jolley Subject: Re: [dvd-discuss] STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu Message-id: <39C84C3C.F992E2FC@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: <39C80E0A.9A664A10@mediaone.net> <39C8213D.E5BCA996@swbell.net> <39C827C7.15CBC847@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Looking back at previous postings, http://eon.law.harvard.edu/archive/dvd-discuss/msg08094.html, Paul Fenimore wrote: >> 4) Prior Restraints forbidden >> a) 1203(b)(1) vs Kaplan ellipses > >I think this ought to be the very first thing in the brief. Intellectually >hitting people on head with an exquisitly simple anvil gets their >attention and holds it. "Look, Kaplan covered 'no prior restraint' with >ellipses in his quote, and proceeded to do exactly the thing that is >forbidden by the censored part of his quote." There is simply no wiggle >room. If we don't get and hold the audience's attention with that opening >line, then we have demonstrated brain-death and can remove them from >life-support. Is this a big club that we would want to use in the statement of interest? From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 06:51:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA23757 for dvd-discuss-outgoing; Wed, 20 Sep 2000 06:51:26 -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 GAA23754 for ; Wed, 20 Sep 2000 06:51:24 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13bhUU-00024Z-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 12:52:38 +0200 Date: Wed, 20 Sep 2000 12:52:38 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Forrester: Content Out Of Control In-Reply-To: <39C84C3C.F992E2FC@swbell.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.forrester.com/ER/Press/Release/0,1769,397,FF.html PRESS RELEASE - FOR IMMEDIATE RELEASE Music And Book Industries To Lose $4.6 Billion By 2005 As Control Of Digital Content Collapses, According To Forrester Research ... "Consumers have spoken -- they demand access to content by any means necessary," said Eric Scheirer, Ph.D., analyst at Forrester. "Neither digital security nor lawsuits will stop Internet theft of content. Regardless of whether they consider Napster right or wrong, traditional publishers must focus on beating Napster at its own game. They must create compelling services with the content consumers want, in the formats they want, using the business models they want." ... "DRM can't prevent filesharing, nor will business models that depend on the control of content ever reap sustainable revenues," continued Scheirer. "Consumers don't want business rules or restrictive technology -- and it only takes one person to break down the security barriers and share content on the Net. Lawsuits will only succeed in driving consumers to underground Internet services like Gnutella and Freenet." Forrester uses the term "collapse of control" to refer to the chaos that ensues in a content industry when viral filesharing satisfies consumer demand for content and transforms distribution-based businesses. Collapse of control won't destroy the music and publishing industries, but it will cause a major shift in their power structures. "There will always be a market for content. But as control over distribution slips away from major publishers, a lot of the money they're making today will instead be earned by artists and service vendors," Scheirer added. According to the Report, musicians will gain $1 billion, authors $1.3 billion, and third-party service companies $2.8 billion by 2005 in a historic transfer of revenues. ... frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 08:29:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA25899 for dvd-discuss-outgoing; Wed, 20 Sep 2000 08:29:28 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA25896 for ; Wed, 20 Sep 2000 08:29:28 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id IAA07532 for ; Wed, 20 Sep 2000 08:30:50 -0400 (EDT) Message-ID: <39C8ADF6.DE275A4F@mediaone.net> Date: Wed, 20 Sep 2000 08:30:46 -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] STATEMENT OF INTEREST Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu STATEMENT OF INTEREST The amici represent engineers, scientists, lawyers, professors, students, and inventors, all of whom come together voluntarily on OpenLaw, an online public forum for discussing law. Our interest is in helping the Court understand how to apply copyright law to technology. We are all deeply disturbed by the Court's decision to extend unlimited patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests, but instead we belong to the Open Source movement wrongly maligned by plaintiffs. The lower court's decision threatens our rights, freedom, and community--without this community the current Internet would not have been invented, and the next Internet will not arise. We do not seek to steal any property; instead, we object to plaintiffs stealing from the public domain. We hope the Courts will agree that the Constitution does not permit this. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 09:33:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA27390 for dvd-discuss-outgoing; Wed, 20 Sep 2000 09:33:34 -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 JAA27387 for ; Wed, 20 Sep 2000 09:33:31 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Wed, 20 Sep 2000 16:32:27 +0200 Message-ID: <39C92151.7988C498@easybase.com> Date: Wed, 20 Sep 2000 16:42:57 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-0.23mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich quash motion References: <200009191758.NAA04615@smtp10.atl.mindspring.net> 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 JAA27388 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: > Judge Elfving denied the Pavlovich motion to quash on > August 29. Pavlovich has appealed that decision with a > filing by his attorney Allonn Levy on September 11 to the > California Court of Appeal, Sixth Appellate District. > > We got the 39-page appeal from EFF yesterday in hardcopy > and will have it up in a day or so. There were also about > 250 pages of Exhibits A-F. Exhibits E and F are the order > denying the quash motion and the related 19-page hearing > transcript -- which we will also offer. Thank you, would you please post the links here when you get this online? Rgrds, Moshe Vainer moshev@easybase.com From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 10:05:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA28154 for dvd-discuss-outgoing; Wed, 20 Sep 2000 10:05:25 -0400 Received: from hotmail.com (f184.law3.hotmail.com [209.185.241.184]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA28151 for ; Wed, 20 Sep 2000 10:05:24 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 20 Sep 2000 07:06:15 -0700 Received: from 192.38.120.172 by lw3fd.law3.hotmail.msn.com with HTTP; Wed, 20 Sep 2000 14:06:15 GMT X-Originating-IP: [192.38.120.172] From: "Claus Adamsen" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] 4C entity Date: Wed, 20 Sep 2000 16:06:15 CEST Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 20 Sep 2000 14:06:15.0998 (UTC) FILETIME=[F0EBEDE0:01C0230B] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From: mickeym >Date: Fri, 15 Sep 2000 14:11:52 -0400 > > > But you would agree it would be a simple matter to have RMI that could >not > > be (resonably) copied with the work as well as a more robust watermark >to > > ID where the copy came from? It could even be argued that by not >keeping > > the tracking barcode from the center of the disc when you rip a CD you >are > > in breach of the law. > > > >You are correct. When I submitted my comments to LOC that supported the >RMI portion of the law, I wasn't thinking watermarks or barcodes. I >(wrongly) assumed they were referring to a standard copyright notice, >and I replied that I had no problem with maintaining attribution notices >for the original author. > >Any RMI data on the container gets left behind when the content is >shifted to another media, and could easily be claimed as 'removing RMI.' > Check out Kelly v. Arriba: http://pub.bna.com/ptcj/99-560.htm - not every instance of RMI being "left behind" qualifies as removal... _________________________________________________________________________ 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 Wed Sep 20 11:20:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30066 for dvd-discuss-outgoing; Wed, 20 Sep 2000 11:20:53 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA30063 for ; Wed, 20 Sep 2000 11:20:52 -0400 From: Michael.A.Rolenz@aero.org Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 08:21:51 -0700 Subject: Re: [dvd-discuss] STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 20 Sep 2000 08:21:48 -0700 X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/20/2000 08:21:50 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes the issue is "trafficking" in decryption devices which is a brand new crime and not actually doing anything illegal with them.....which makes me ask the question , "has anybody actually seen ANY economic studies regarding how much "lost revenue" is due to copy sharing? (and I don't mean the MPAA press releases).if the amounts can be show to be so small then the "P"s arguments become speculative...has anybody seen anything like this..[this is beginnning to remind me more of a P.K.Dick novel...]. wrt to filesharing.....The copy protection and access control the "P"s and others espouse are legal "self help" performed in advance of any copyright infringement. My own belief is that they should be ultimately limited to going after large abusers of this. If they want to monitor chat rooms on their own nickel fine. Having the Government do it for them is not to be allowed. Eric Eldred To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] STATEMENT OF INTEREST arvard.edu 09/19/00 10:15 PM Please respond to dvd-discuss On Tue, Sep 19, 2000 at 10:23:26PM -0400, Joshua Stratton wrote: > On Tue, 19 Sep 2000, Sphere wrote: > > > > > decision to extend almost unlimited patent-like control over digital > > > > media to movie studios and other big publishers. We do not represent > > > > commercial interests, but instead we belong to the Open Source movement > > > > wrongly maligned by plaintiffs. The lower court's decision threatens > > > > our rights, freedom, and community--without this community the current > > > > Internet would not have been invented, and the next Internet will not > > > > > > _that_ is a good place to put the Internet. > > > > > > I'm not sure of your point. > > I don't like pushing the list as having an intimate connection to the > Internet. While the 'net is important in this case, ultimately it comes > down to DVDs, CSS and DeCSS as far as the realm of technologies go. The Internet is important in one respect. Without the Internet it would be difficult for ordinary folks to share copies of digital media. The plaintiffs' argument that this is now so easy that they need strong protection is one we need to address. If we don't, then the Internet will be made safe for e-commerce and the open folks will be excluded. For example, the decision greatly affects how hyperlinks can be made on the Internet--it is biased toward e-commerce and away from open file sharing. Yet the Internet now makes it possible for everyperson to be her own publisher--will everyperson get the First Amendment rights of free speech and free press, or will the media giants use copyright law to suppress it, and convert the Internet into a giant pay-per-view channel device for content they now own? > Without legitimate RE'd decryption software we're going to be upset > regardless of whether or not we can distribute them on the net; True, but this decision really affects "trafficking" and not the RE itself. >I think > that we have a much easier time getting the linking injunction overturned > than we do DeCSS getting legitimized. (just as bomb making instructions > are legal and bombs are not) I don't think it will be in our interest to have the appeals court try to fine tune Kaplan's decision about linking--I agree it should be thrown out--but this doesn't rest on a distinction between instructions and function. > But it is good to point to a specific example of something important that > could not have been developed in an environment such as the P's would like > to see. And that's why the Internet makes a great example, even though > we're all concerned with events and technologies both on and off the net. Yes, we are concerned about all the implications of technology here. We need to be able to explain it in terms the judges can easily comprehend. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 11:26:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30279 for dvd-discuss-outgoing; Wed, 20 Sep 2000 11:26:26 -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 LAA30276 for ; Wed, 20 Sep 2000 11:26:25 -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 LAA17735 for ; Wed, 20 Sep 2000 11:27:44 -0400 Date: Wed, 20 Sep 2000 11:27:44 -0400 (EDT) From: Ole Craig To: dvd-discuss Subject: Re: [dvd-discuss] STATEMENT OF INTEREST In-Reply-To: <39C8ADF6.DE275A4F@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 09/20/00 at 08:30, 'twas brillig and Sphere scrobe: A few nits, that coincidentally cut a few letters. :-) > STATEMENT OF INTEREST > > The amici represent engineers, scientists, lawyers, professors, > students, and inventors, all of whom come together voluntarily on > OpenLaw, an online public forum for discussing law. The amici are engineers, scientists, lawyers, professors, students, and inventors, all of whom collaborate voluntarily on OpenLaw, an online public forum for discussing law. > Our interest is in helping the Court understand how to apply copyright > law to technology. We are all deeply disturbed by the Court's decision > to extend unlimited patent-like control over digital media to movie > studios and other big publishers. We do not represent commercial > interests, but instead we belong to the Open Source movement wrongly > maligned by plaintiffs. The lower court's decision threatens our > rights, freedom, and community--without this community the current > Internet would not have been invented, and the next Internet will not > arise. We do not seek to steal any property; instead, we object to > plaintiffs stealing from the public domain. We hope the Courts will > agree that the Constitution does not permit this. We are interested in helping the Court decide how to apply copyright law to technology. We are all deeply disturbed by the Court's decision to extend unlimited patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests, but instead we belong to the Open Source movement wrongly maligned by plaintiffs. The lower court's decision threatens our rights, freedom, and community; without these, the current Internet would not have been invented, and the next Internet will not arise. We do not seek to steal any property; rather, we object to plaintiffs' theft from the public domain. We feel the Courts will agree that the Constitution does not permit this. 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 Sep 20 11:36:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30633 for dvd-discuss-outgoing; Wed, 20 Sep 2000 11:36:26 -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 LAA30630 for ; Wed, 20 Sep 2000 11:36:25 -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 e8KFbFX12794 for ; Wed, 20 Sep 2000 11:37:16 -0400 (EDT) Message-ID: <39C8D9AB.BF4EE44B@mindspring.com> Date: Wed, 20 Sep 2000 11:37:16 -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] Removal of RMI (was: 4C entity) Content-Type: text/plain; charset=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: mickeym > >Date: Fri, 15 Sep 2000 14:11:52 -0400 > > > > > But you would agree it would be a simple matter to have RMI that could > >not > > > be (resonably) copied with the work as well as a more robust watermark > >to > > > ID where the copy came from? It could even be argued that by not > >keeping > > > the tracking barcode from the center of the disc when you rip a CD you > >are > > > in breach of the law. > > > > > > >You are correct. When I submitted my comments to LOC that supported the > >RMI portion of the law, I wasn't thinking watermarks or barcodes. I > >(wrongly) assumed they were referring to a standard copyright notice, > >and I replied that I had no problem with maintaining attribution notices > >for the original author. > > > >Any RMI data on the container gets left behind when the content is > >shifted to another media, and could easily be claimed as 'removing RMI.' > > > > Check out Kelly v. Arriba: > > http://pub.bna.com/ptcj/99-560.htm > > - not every instance of RMI being "left behind" qualifies as removal... > > I think that this is very interesting: "Section 1202(b)(1) does not apply to this case. Based on the language and structure of the statute, the Court holds this provision applies only to the removal of copyright management information on a plaintiff's product or original work." So, what this decision appears to say is that the RMI data must be "on a ... work", not somewhere nearby. Watermarks would fit this description, while barcodes on the container may not. Also interesting: "Plaintiff's images are vulnerable to copyright infringement because they are displayed on Web sites. Plaintiff has not shown users of Defendant's site were any more likely to infringe his copyrights, any of these users did infringe, or Defendant should reasonably have expected infringement." And the decision also aknowledges that there is little expectation of copyright protection when "displayed" on the Web. Tthe judge in this case has said that content providers swim at their own risk. mickeym From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 11:58:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA31175 for dvd-discuss-outgoing; Wed, 20 Sep 2000 11:58:24 -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 LAA31172 for ; Wed, 20 Sep 2000 11:58:22 -0400 Received: from ip160.bedford2.ma.pub-ip.psi.net ([38.32.10.160]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13bmHc-00029t-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 11:59:40 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] fair use ammunition Date: Wed, 20 Sep 2000 12:03:01 -0400 Message-ID: <4nnhssge2p0p174aq4oh8pmoc9jqeaqv37@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 LAA31173 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From page 86 of October Wired magazine comes an art exhibition that DMCA would render impossible: http://www.designfilms.org/ __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 12:57:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA00400 for dvd-discuss-outgoing; Wed, 20 Sep 2000 12:57:07 -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 MAA00397 for ; Wed, 20 Sep 2000 12:57:05 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 20 Sep 2000 18:48:10 +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, 20 Sep 2000 18:10:12 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 20 Sep 2000 18:10:12 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Message-ID: <20000920181012.A28094@lemuria.org> References: <39C8ADF6.DE275A4F@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C8ADF6.DE275A4F@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: > STATEMENT OF INTEREST I like this one very much. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 12:58:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA00465 for dvd-discuss-outgoing; Wed, 20 Sep 2000 12:58:31 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA00460 for ; Wed, 20 Sep 2000 12:58:30 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 09:41:00 -0700 Subject: Re: [dvd-discuss] fair use ammunition To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 20 Sep 2000 09:40:59 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 09/20/2000 09:40:59 AM MIME-Version: 1.0 Content-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 sad thing is that I doubt that JackBoots Valenti, the MPAA, TimeWarner really care. I can imagine them squeezing full theatrical fees for merely showing the titles..... BTW I've realized what the Sonny Bono Copyright Extension Act was really about...Keeping Micky Mouse out of the Pubic Domain. Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: [dvd-discuss] fair use ammunition arvard.edu 09/20/00 09:01 AM Please respond to dvd-discuss >From page 86 of October Wired magazine comes an art exhibition that DMCA would render impossible: http://www.designfilms.org/ __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 13:04:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA00724 for dvd-discuss-outgoing; Wed, 20 Sep 2000 13:04:09 -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 NAA00721 for ; Wed, 20 Sep 2000 13:04:08 -0400 Message-ID: <20000920170500.22931.qmail@web513.mail.yahoo.com> Received: from [63.79.228.253] by web513.mail.yahoo.com; Wed, 20 Sep 2000 10:05:00 PDT Date: Wed, 20 Sep 2000 10:05:00 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > Looking back at previous postings, > http://eon.law.harvard.edu/archive/dvd-discuss/msg08094.html, Paul > Fenimore wrote: > > >> 4) Prior Restraints forbidden > >> a) 1203(b)(1) vs Kaplan ellipses > > > >I think this ought to be the very first thing in the brief. > > Is this a big club that we would want to use in the statement of > interest? It's clearly important, but I don't think it's part of our "who we are, why we care, how we can help the Court" message. On the other hand, we strongly support Free Speech rights for programmers and we want to help the judiciary navigate through thorny statutes without violating them. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 13:48:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01931 for dvd-discuss-outgoing; Wed, 20 Sep 2000 13:48:51 -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 NAA01928 for ; Wed, 20 Sep 2000 13:48:48 -0400 Received: from 216-164-133-242.s242.tnt3.lnhva.md.dialup.rcn.com ([216.164.133.242]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13bo0X-0007Hk-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 13:50:09 -0400 Date: Wed, 20 Sep 2000 13:49:38 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST 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, 20 Sep 2000, Ole Craig wrote: > > We are interested in helping the Court decide how to apply copyright > law to technology. We are all deeply disturbed by the Court's decision > to extend unlimited patent-like control over digital media to movie > studios and other big publishers. We do not represent commercial > interests, but instead we belong to the Open Source movement wrongly > maligned by plaintiffs. The lower court's decision threatens our > rights, freedom, and community; without these, the current Internet > would not have been invented, and the next Internet will not arise. We > do not seek to steal any property; rather, we object to plaintiffs' > theft from the public domain. We feel the Courts will agree that the > Constitution does not permit this. I'm bothered by the phrase " plaintiffs' theft from the public domain." Is it accurate? Perhaps there is a more concise method of saying "plaintiff's attempts to diminish the public domain"... (The comparison between copyright infringement and grand theft auto is an analogy that deserves to die of neglect ) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 14:09:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02993 for dvd-discuss-outgoing; Wed, 20 Sep 2000 14:09:05 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA02990 for ; Wed, 20 Sep 2000 14:09:04 -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 OAA26332 for ; Wed, 20 Sep 2000 14:10:27 -0400 Date: Wed, 20 Sep 2000 14:10:27 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST 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 09/20/00 at 13:49, 'twas brillig and Jeremy Erwin scrobe: > On Wed, 20 Sep 2000, Ole Craig wrote: [...] > > do not seek to steal any property; rather, we object to plaintiffs' > > theft from the public domain. We feel the Courts will agree that the > > Constitution does not permit this. > > I'm bothered by the phrase " plaintiffs' theft from the public domain." Is > it accurate? > > Perhaps there is a more concise method of saying "plaintiff's attempts to > diminish the public domain"... (The comparison between copyright > infringement and grand theft auto is an analogy that deserves to die of > neglect ) Agreed. Howsabout: [..] we object to plaintiffs' co-option of the public domain. 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 Sep 20 14:17:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03255 for dvd-discuss-outgoing; Wed, 20 Sep 2000 14:17:03 -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 OAA03252 for ; Wed, 20 Sep 2000 14:17:02 -0400 Received: from ip195.bedford7.ma.pub-ip.psi.net ([38.32.77.195]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13boRs-0005hD-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 14:18:24 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Date: Wed, 20 Sep 2000 14:21:46 -0400 Message-ID: <4qvhssslmeil4ae1ptfadb58vc3r0fp9g2@4ax.com> 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 OAA03253 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 20 Sep 2000 13:49:38 EDT, Jeremy Erwin wrote: >I'm bothered by the phrase " plaintiffs' theft from the public domain." Is >it accurate? > >Perhaps there is a more concise method of saying "plaintiff's attempts to >diminish the public domain"... I would put it attempts to "render the public domain inoperable" --or maybe "capture or absorb the public domain." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 14:21:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03428 for dvd-discuss-outgoing; Wed, 20 Sep 2000 14:21:43 -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 OAA03425 for ; Wed, 20 Sep 2000 14:21:41 -0400 Received: from ip195.bedford7.ma.pub-ip.psi.net ([38.32.77.195]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13boWO-0005oN-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 14:23:04 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Date: Wed, 20 Sep 2000 14:26:26 -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 OAA03426 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 20 Sep 2000 14:10:27 -0400 (EDT), Ole Craig wrote: >[..] we object to plaintiffs' co-option of the public domain. co-opt is good. "Borg" the PD is even tempting... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 14:29:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03655 for dvd-discuss-outgoing; Wed, 20 Sep 2000 14:29:02 -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 OAA03652 for ; Wed, 20 Sep 2000 14:29:01 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13bodS-0004AD-00; Wed, 20 Sep 2000 20:30:22 +0200 Received: from localhost by sites.inka.de with local id 13bodU-0001QT-00; Wed, 20 Sep 2000 20:30:24 +0200 Date: Wed, 20 Sep 2000 20:30:24 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Message-ID: <20000920203023.C22624@inka.de> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from rongus@tiac.net on Wed, Sep 20, 2000 at 02:26:26PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 20, 2000 at 02:26:26PM -0400, Ron Gustavson wrote: > On Wed, 20 Sep 2000 14:10:27 -0400 (EDT), Ole Craig wrote: > > >[..] we object to plaintiffs' co-option of the public domain. > > co-opt is good. > > "Borg" the PD is even tempting... Are you really suggesting using a creation of one of the plaintiffs in this brief? ;) 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 Sep 20 14:33:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03901 for dvd-discuss-outgoing; Wed, 20 Sep 2000 14:33:32 -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 OAA03898 for ; Wed, 20 Sep 2000 14:33:30 -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 NAA23910 for ; Wed, 20 Sep 2000 13:34:52 -0500 (CDT) Message-ID: <39C90407.BE5C337F@uic.edu> Date: Wed, 20 Sep 2000 13:37:59 -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] STATEMENT OF INTEREST Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Let me suggest a few changes ... > STATEMENT OF INTEREST > > The amici represent engineers, scientists, lawyers, professors, > students, and inventors, all of whom come together voluntarily on > OpenLaw, an online public forum for discussing law. The amici are a volunteer group of engineers, scientists, lawyers, professors, students, and inventors, who have come together to collaborate on the dvd-discuss list on OpenLaw, an online public forum for discussing law. > Our interest is in helping the Court understand how to apply copyright > law to technology. We are all deeply disturbed by the Court's decision > to extend unlimited patent-like control over digital media to movie > studios and other big publishers. We do not represent commercial > interests, but instead we belong to the Open Source movement wrongly > maligned by plaintiffs. The lower court's decision threatens our > rights, freedom, and community--without this community the current > Internet would not have been invented, and the next Internet will not > arise. We do not seek to steal any property; instead, we object to > plaintiffs stealing from the public domain. We hope the Courts will > agree that the Constitution does not permit this. Our interest is in helping the Court to understand new technologies and to apply copyright law so as to preserve copyright's delicate balance between the rights of copyright holders and the rights of the general public. We are concerned that the Court's interpretation of the Digital Millennium Copyright Act extends perpetual patent-like control to certain copyright owners over if, when, and how the public may use -- as opposed to copy -- both copyrighted and public domain works on digital media, and that this unprecedented combination of technological and legal control threatens our individual rights and freedoms. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 15:27:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05284 for dvd-discuss-outgoing; Wed, 20 Sep 2000 15:27:05 -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 PAA05265 for ; Wed, 20 Sep 2000 15:27:04 -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 OAA05891 for ; Wed, 20 Sep 2000 14:28:27 -0500 (CDT) Message-ID: <39C91097.6C9C1A40@uic.edu> Date: Wed, 20 Sep 2000 14:31:35 -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] Suggested new STATEMENT OF INTEREST Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I just revised my suggested statement. Take two: STATEMENT OF INTEREST The amici are a volunteer group of engineers, scientists, lawyers, professors, students, and inventors, who have come together to collaborate on the dvd-discuss list on OpenLaw, an online public forum for discussing law. Our interest is in helping the Court to understand new technologies and to apply copyright law so as to preserve copyright's delicate balance between the rights of copyright holders and the rights of the general public. We are concerned that the Court's interpretation of the Digital Millennium Copyright Act extends perpetual patent-like control to certain private organizations over if, when, and how the public may use -- as opposed to copy -- both copyrighted and public domain works on digital media, and places these same organizations in a position to dictate how the public may use digital equipment and media itself. We believe that this unprecedented combination of absolute technological and legal control in private hands poses an immediate threat to our individual rights and freedoms. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 16:17:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06467 for dvd-discuss-outgoing; Wed, 20 Sep 2000 16:17:30 -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 QAA06464 for ; Wed, 20 Sep 2000 16:17:28 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id OAA01092 for ; Wed, 20 Sep 2000 14:18:50 -0600 Date: Wed, 20 Sep 2000 14:18:49 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: <39C91097.6C9C1A40@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 Do we really need a laundry list of the professions of the membership? Wouldn't "people" do just as good? If we change the laundry list of professions to a single word, we've just chopped a full line off... On Wed, 20 Sep 2000, John Schulien wrote: > I just revised my suggested statement. Take two: > > STATEMENT OF INTEREST > > The amici are a volunteer group of engineers, scientists, > lawyers, professors, students, and inventors, who have > come together to collaborate on the dvd-discuss list on > OpenLaw, an online public forum for discussing law. > > Our interest is in helping the Court to understand new > technologies and to apply copyright law so as to preserve > copyright's delicate balance between the rights of > copyright holders and the rights of the general public. > We are concerned that the Court's interpretation of the > Digital Millennium Copyright Act extends perpetual > patent-like control to certain private organizations over > if, when, and how the public may use -- as opposed > to copy -- both copyrighted and public domain works > on digital media, and places these same organizations > in a position to dictate how the public may use digital > equipment and media itself. We believe that this > unprecedented combination of absolute technological > and legal control in private hands poses an immediate > threat to our individual rights and freedoms. > > > -- Customer: "I'm running Windows '98" Tech: "Yes." Customer: "My computer isn't working now." Tech: "Yes, you said that." Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 16:23:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06700 for dvd-discuss-outgoing; Wed, 20 Sep 2000 16:23:36 -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 QAA06697 for ; Wed, 20 Sep 2000 16:23:35 -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 QAA30464 for ; Wed, 20 Sep 2000 16:24:58 -0400 Date: Wed, 20 Sep 2000 16:24:58 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST 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 09/20/00 at 14:18, 'twas brillig and John Galt scrobe: > > Do we really need a laundry list of the professions of the > membership? Wouldn't "people" do just as good? If we change the laundry > list of professions to a single word, we've just chopped a full line > off... Yes, but IMHO we've lost a part of the impact: the fact that we're a diverse group of people, many/most of whom have in-depth specialized knowledge relating to a number of the areas that make this case difficult for the judiciary to rightly apprehend. 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 Sep 20 16:25:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06759 for dvd-discuss-outgoing; Wed, 20 Sep 2000 16:25:07 -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 QAA06753 for ; Wed, 20 Sep 2000 16:25:06 -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 PAA19255 for ; Wed, 20 Sep 2000 15:26:28 -0500 (CDT) Message-ID: <39C91E32.934A70CB@uic.edu> Date: Wed, 20 Sep 2000 15:29:38 -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] Suggested new STATEMENT OF INTEREST Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Galt writes: > Do we really need a laundry list of the > professions of the membership? Wouldn't > "people" do just as good? If we change > the laundry list of professions to a single > word, we've just chopped a full line off... Well, the laundry list helps to convey our collective expertise on technology and law. Isn't that important? From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 17:37:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08392 for dvd-discuss-outgoing; Wed, 20 Sep 2000 17:37:36 -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 RAA08388 for ; Wed, 20 Sep 2000 17:37:29 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Wed, 20 Sep 2000 23:29:23 +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; Wed, 20 Sep 2000 22:45:04 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Wed, 20 Sep 2000 22:45:04 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST Message-ID: <20000920224504.A29022@lemuria.org> References: <39C91097.6C9C1A40@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C91097.6C9C1A40@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: > to copy -- both copyrighted and public domain works > on digital media, and places these same organizations > in a position to dictate how the public may use digital > equipment and media itself. We believe that this > unprecedented combination of absolute technological > and legal control in private hands poses an immediate > threat to our individual rights and freedoms. I think the "plaintiffs stealing from the public domain" part should be included, one way or the other. it is NOT "programmers vs. movie makers", it is "MPAA vs. everyone else". there's nobody in western civilization who does NOT lose something if MPAA gets their way. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 17:38:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08415 for dvd-discuss-outgoing; Wed, 20 Sep 2000 17:38:06 -0400 Received: from web514.mail.yahoo.com (web514.mail.yahoo.com [216.115.104.229]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA08412 for ; Wed, 20 Sep 2000 17:38:04 -0400 Message-ID: <20000920213854.12097.qmail@web514.mail.yahoo.com> Received: from [64.81.25.37] by web514.mail.yahoo.com; Wed, 20 Sep 2000 14:38:54 PDT Date: Wed, 20 Sep 2000 14:38:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > John Galt writes: > > Do we really need a laundry list of the > > professions of the membership? Wouldn't > > "people" do just as good? If we change > > the laundry list of professions to a single > > word, we've just chopped a full line off... > > Well, the laundry list helps to convey our > collective expertise on technology and > law. Isn't that important? I tend to agree. Actually, I'd add "programmers" into it. I think the length is pretty good. It comes in safely under a page, so one line doesn't bother me. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 18:05:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09148 for dvd-discuss-outgoing; Wed, 20 Sep 2000 18:05:38 -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 SAA09145 for ; Wed, 20 Sep 2000 18:05:37 -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 RAA10315 for ; Wed, 20 Sep 2000 17:06:59 -0500 (CDT) Message-ID: <39C935C2.B51E7587@uic.edu> Date: Wed, 20 Sep 2000 17:10:10 -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] "plaintiffs stealing from the public domain" Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I think the "plaintiffs stealing from the public > domain" part should be included, one way > or the other. it is NOT "programmers vs. movie > makers", it is "MPAA vs. everyone else" My problem is that I see it as an inflammatory and loaded statement, and if I were a judge, I think it would make me roll my eyes. For instance ... If a company releases "The Great Train Robbery" on a DVD with CSS, consumers are prohibited from decrypting the CSS not because "The Great Train Robbery" is protected by copyright, but because "You've Got Mail" is protected by copyright, and uses the same encryption system. However ... There's nothing in the world to prevent you from acquiring a 16mm or 35mm print of "The Great Train Robbery" and doing whatever you wish with it. When I hear, "stealing from the public domain", I think of people acquiring new copyrights and patents on public domain works and procedures, which is an entirely different problem, and not what is going on here. After all, you would be within your rights to spend a half million dollars on making a perfect restoration of a public domain movie from the only surviving print, and only release it theatrically. Is that stealing from the public domain also? From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 18:36:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09917 for dvd-discuss-outgoing; Wed, 20 Sep 2000 18:36:34 -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 SAA09914 for ; Wed, 20 Sep 2000 18:36:32 -0400 Received: from ip156.bedford8.ma.pub-ip.psi.net ([38.32.78.156]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13bsUw-0005UO-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 18:37:50 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" Date: Wed, 20 Sep 2000 18:41:13 -0400 Message-ID: <3teissgcgg7h3kb662e05kha5s734pp1fk@4ax.com> References: <39C935C2.B51E7587@uic.edu> In-Reply-To: <39C935C2.B51E7587@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 SAA09915 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 20 Sep 2000 17:10:10 -0500, John Schulien wrote: >After all, you would be within your rights to >spend a half million dollars on making a perfect >restoration of a public domain movie from the >only surviving print, and only release it >theatrically. Is that stealing from the public >domain also? No. But they are a theatrical business that backed into publishing, and now want to transform publishing into the theater rather than evolve themselves. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 18:44:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA10210 for dvd-discuss-outgoing; Wed, 20 Sep 2000 18:44:51 -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 SAA10207 for ; Wed, 20 Sep 2000 18:44:50 -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 RAA16019 for ; Wed, 20 Sep 2000 17:46:13 -0500 (CDT) Message-ID: <39C93EF4.D87372EB@uic.edu> Date: Wed, 20 Sep 2000 17:49:24 -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] "plaintiffs stealing from the public domain" Content-Type: text/plain; charset=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 writes: > No. But they are a theatrical business that backed > into publishing, and now want to transform publishing > into the theater rather than evolve themselves. Exactly, but the statement only makes sense to me as the conclusion of this argument. Alone and out of context, it appears to be a misconception, which is why I left it out. Just my opinion though From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 19:25:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11210 for dvd-discuss-outgoing; Wed, 20 Sep 2000 19:25:31 -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 TAA11191 for ; Wed, 20 Sep 2000 19:25:15 -0400 Received: from ppp.anonymizer.com (c01-062.015.popsite.net [64.24.72.62]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id QAA15978 for ; Wed, 20 Sep 2000 16:28:18 -0700 (PDT) Message-Id: <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 20 Sep 2000 16:26:17 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: <20000920213854.12097.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 02:38 PM 9/20/2000 -0700, Bryan Taylor wrote: >--- John Schulien wrote: > > John Galt writes: > > > Do we really need a laundry list of the > > > professions of the membership? Wouldn't > > > "people" do just as good? If we change > > > the laundry list of professions to a single > > > word, we've just chopped a full line off... > > > > Well, the laundry list helps to convey our > > collective expertise on technology and > > law. Isn't that important? > >I tend to agree. Actually, I'd add "programmers" into it. I think the >length is pretty good. It comes in safely under a page, so one line >doesn't bother me. I don't just tend to agree, I insist. ;-) The raison d'etre of the statement of interest is to tell the Court who we are, why we have an interest in the case, and why we have the qualifications/perspective to do more than just ape what the defense may say. The copyright law profs who submitted the napster amicus really didn't need to say much more about who they are than "we're a passelful of copyright law profs". We do. Odds are the Second Circuit has never seen the likes of us. And as much as I've nagged about length, I wouldn't sweat one line here or there at this stage. Let's get a draft of the full brief done, which is at least in the length ballpark, then start editing not only for length but to pull the document together as a single cohesive writing, not just a bunch of disjointed sections. It is sometimes easier to edit for length and content when one sees the full picture, knows what one has to deal with. Speaking only for my own writing, my final drafts are shorter than my first drafts about 90% of the time, even when I'm not fighting a page limit. -------------------------------------------------------------------- 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 Sep 20 19:49:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11773 for dvd-discuss-outgoing; Wed, 20 Sep 2000 19:49:41 -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 TAA11770 for ; Wed, 20 Sep 2000 19:49:39 -0400 Message-ID: <20000920235030.24369.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Wed, 20 Sep 2000 16:50:30 PDT Date: Wed, 20 Sep 2000 16:50:30 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] No Perpetual Patent-like protection - Qualitex v Jacobson To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Trade Mark law is a Federal form of intellectual property law, created via the commerce clause. (sound familiar) However, trade mark law cannot offer protection to "functional" elements of a product, since this would result in a conflict with the patent power. _________________ QUALITEX CO. v. JACOBSON PRODUCTS CO. ___ U.S. ___ (1995) , 5 No. 93-1577 http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/us/000/u10301.html The functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature. It is the province of patent law, not trademark law, to encourage invention by granting inventors a monopoly over new product designs or functions for a limited time, 35 U.S.C. 154, 173, after which competitors are free to use the innovation. If a product's functional features could be used as trademarks, however, a monopoly over such features could be obtained without regard to whether they qualify as patents and could be extended forever (because trademarks may be renewed in perpetuity). See Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 119 -120 (1938) (Brandeis, J.); Inwood Laboratories, Inc., supra, at 863 (White, J., concurring in result) __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 19:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA11906 for dvd-discuss-outgoing; Wed, 20 Sep 2000 19:52:34 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA11879 for ; Wed, 20 Sep 2000 19:52:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA06429 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 19:54:18 -0400 Date: Wed, 20 Sep 2000 19:54:13 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Message-ID: <20000920195413.B6358@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jerwin@osf1.gmu.edu on Wed, Sep 20, 2000 at 01:49:38PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 20, 2000 at 01:49:38PM -0400, Jeremy Erwin wrote: > > > > On Wed, 20 Sep 2000, Ole Craig wrote: > > > > > We are interested in helping the Court decide how to apply copyright > > law to technology. We are all deeply disturbed by the Court's decision > > to extend unlimited patent-like control over digital media to movie > > studios and other big publishers. We do not represent commercial > > interests, but instead we belong to the Open Source movement wrongly > > maligned by plaintiffs. The lower court's decision threatens our > > rights, freedom, and community; without these, the current Internet > > would not have been invented, and the next Internet will not arise. We > > do not seek to steal any property; rather, we object to plaintiffs' > > theft from the public domain. We feel the Courts will agree that the > > Constitution does not permit this. > > I'm bothered by the phrase " plaintiffs' theft from the public domain." Is > it accurate? > > Perhaps there is a more concise method of saying "plaintiff's attempts to > diminish the public domain"... (The comparison between copyright > infringement and grand theft auto is an analogy that deserves to die of > neglect ) Yes, I agree now, after seeing your comment. We should always refer to "property" in quotes. What is happening here is not so much theft, as Congressionally-authorized appropriation of the public domain to major publishers in violation of the Constitution. Yes, the congresspeople are thieves and corrupt, but we would do better to attack the campaign contribution mess as a whole rather than the separate parts of it. One gripe is that Free Software is different from Open Source and should be included also. Let's try to educate the judges a little. Here's a rewrite (without having seen any later ones in this thread): We are interested in helping the Court decide how to apply copyright law to technology. We are all deeply disturbed by the Court's decision to extend unlimited patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests, but instead we belong to the Open Source movement wrongly maligned by plaintiffs. The lower court's decision threatens our rights, freedom, and community; without these, the current Internet would not have been invented, and the next Internet will not arise. We do not seek to steal any property; rather, we object to Congress appropriating the public domain to major publishers in violation of the Constitution. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 19:55:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12079 for dvd-discuss-outgoing; Wed, 20 Sep 2000 19:55:29 -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 TAA12057 for ; Wed, 20 Sep 2000 19:55:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA06453 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 19:57:09 -0400 Date: Wed, 20 Sep 2000 19:57:04 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Message-ID: <20000920195704.C6358@eldritchpress.org> References: <39C90407.BE5C337F@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39C90407.BE5C337F@uic.edu>; from jms@uic.edu on Wed, Sep 20, 2000 at 01:37:59PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 20, 2000 at 01:37:59PM -0500, John Schulien wrote: > Let me suggest a few changes ... > > > STATEMENT OF INTEREST > > > > The amici represent engineers, scientists, lawyers, professors, > > students, and inventors, all of whom come together voluntarily on > > OpenLaw, an online public forum for discussing law. > > The amici are a volunteer group of engineers, scientists, > lawyers, professors, students, and inventors, who have > come together to collaborate on the dvd-discuss list on > OpenLaw, an online public forum for discussing law. > > > Our interest is in helping the Court understand how to apply copyright > > > law to technology. We are all deeply disturbed by the Court's > decision > > to extend unlimited patent-like control over digital media to movie > > studios and other big publishers. We do not represent commercial > > interests, but instead we belong to the Open Source movement wrongly > > maligned by plaintiffs. The lower court's decision threatens our > > rights, freedom, and community--without this community the current > > Internet would not have been invented, and the next Internet will not > > arise. We do not seek to steal any property; instead, we object to > > plaintiffs stealing from the public domain. We hope the Courts will > > agree that the Constitution does not permit this. > > Our interest is in helping the Court to understand new > technologies and to apply copyright law so as to preserve > copyright's delicate balance between the rights of > copyright holders and the rights of the general public. > We are concerned that the Court's interpretation of the > Digital Millennium Copyright Act extends perpetual > patent-like control to certain copyright owners over > if, when, and how the public may use -- as opposed > to copy -- both copyrighted and public domain works > on digital media, and that this unprecedented > combination of technological and legal control threatens > our individual rights and freedoms. I like this almost as much as the other. But I think it does focus too much on the general public, and not so much on our interests as amici, as technologists whose work will be affected in particular by this decision. But I guess in some ways it depends on how much we are able to argue the case in the limited space, and what the resulting focus will be. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:03:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12334 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:03:15 -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 UAA12331 for ; Wed, 20 Sep 2000 20:03:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA06483 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 20:04:57 -0400 Date: Wed, 20 Sep 2000 20:04:52 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" Message-ID: <20000920200452.D6358@eldritchpress.org> References: <39C935C2.B51E7587@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39C935C2.B51E7587@uic.edu>; from jms@uic.edu on Wed, Sep 20, 2000 at 05:10:10PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 20, 2000 at 05:10:10PM -0500, John Schulien wrote: > > I think the "plaintiffs stealing from the public > > domain" part should be included, one way > > or the other. it is NOT "programmers vs. movie > > makers", it is "MPAA vs. everyone else" > > My problem is that I see it as an inflammatory and > loaded statement, and if I were a judge, I think it > would make me roll my eyes. > > For instance ... > > If a company releases "The Great Train Robbery" > on a DVD with CSS, consumers are prohibited > from decrypting the CSS not because "The Great > Train Robbery" is protected by copyright, but > because "You've Got Mail" is protected by > copyright, and uses the same encryption system. > > However ... > > There's nothing in the world to prevent you > from acquiring a 16mm or 35mm print of "The > Great Train Robbery" and doing whatever you > wish with it. When I hear, "stealing from the > public domain", I think of people acquiring > new copyrights and patents on public domain > works and procedures, which is an entirely > different problem, and not what is going on > here. > > After all, you would be within your rights to > spend a half million dollars on making a perfect > restoration of a public domain movie from the > only surviving print, and only release it > theatrically. Is that stealing from the public > domain also? Note that I agree with retracting "stealing" from the statement of interest. However, I can't resist pointing out that there is a valid conception of the public domain that extends beyond just the works that were published and their copyright term expired. The public domain might include areas such as fair use, non-commercial use, educational use, library use, newspaper use, and many others. The point is that the DMCA extends control by somebody who controls a copyright, to the much larger area of what region the disc can be bought and played in, what kind of computer equipment the user can buy, and so on. It is also true that the DMCA if it is interpreted Kaplan's way will lock up current public domain works, if they use the same TPM as the others. But that is not the main point of my original "stealing from the public domain." What is happening here is that Congress blithely is adopting alien natural rights theory instead of the Constitution, when it adopts Berne Convention or WIPO treaties, and that this is destroying the public domain, the very commons that our political democracy, science, and technology require if they are to be free. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:06:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12491 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:06:13 -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 UAA12488 for ; Wed, 20 Sep 2000 20:06:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA06509 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 20:07:58 -0400 Date: Wed, 20 Sep 2000 20:07:53 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST Message-ID: <20000920200753.E6358@eldritchpress.org> References: <20000920213854.12097.qmail@web514.mail.yahoo.com> <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net>; from jstyre@jstyre.com on Wed, Sep 20, 2000 at 04:26:17PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 20, 2000 at 04:26:17PM -0700, James S. Tyre wrote: > At 02:38 PM 9/20/2000 -0700, Bryan Taylor wrote: > > >--- John Schulien wrote: > > > John Galt writes: > > > > Do we really need a laundry list of the > > > > professions of the membership? Wouldn't > > > > "people" do just as good? If we change > > > > the laundry list of professions to a single > > > > word, we've just chopped a full line off... > > > > > > Well, the laundry list helps to convey our > > > collective expertise on technology and > > > law. Isn't that important? > > > >I tend to agree. Actually, I'd add "programmers" into it. I think the > >length is pretty good. It comes in safely under a page, so one line > >doesn't bother me. > > I don't just tend to agree, I insist. ;-) > > The raison d'etre of the statement of interest is to tell the Court who we > are, why we have an interest in the case, and why we have the > qualifications/perspective to do more than just ape what the defense may > say. The copyright law profs who submitted the napster amicus really > didn't need to say much more about who they are than "we're a passelful of > copyright law profs". We do. Odds are the Second Circuit has never seen > the likes of us. Would the circuit judges be interested in the unique OpenLaw forum that brings us together? I think a little explanation would intrigue them--isn't it probably the first time they have encountered such a brief instead of from lawyers, who are mostly paid for their work? From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:17:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12825 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:17:01 -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 UAA12822 for ; Wed, 20 Sep 2000 20:17:00 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 21 Sep 2000 02:13:48 +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, 21 Sep 2000 02:02:58 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 21 Sep 2000 02:02:58 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" Message-ID: <20000921020258.A29942@lemuria.org> References: <39C935C2.B51E7587@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39C935C2.B51E7587@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: > > I think the "plaintiffs stealing from the public > > domain" part should be included, one way > > or the other. it is NOT "programmers vs. movie > > makers", it is "MPAA vs. everyone else" > > My problem is that I see it as an inflammatory and > loaded statement, and if I were a judge, I think it > would make me roll my eyes. I agree completely that the formulation needs work. but the argument should be included. > If a company releases "The Great Train Robbery" > on a DVD with CSS, consumers are prohibited > from decrypting the CSS not because "The Great > Train Robbery" is protected by copyright, but > because "You've Got Mail" is protected by > copyright, and uses the same encryption system. and that is something I don't believe the legal system supports. I'm not a burglar if I pick the lock on my own doors, or on someone else's who allows me to do so (for example because he locked himself out). and I'm still not a burglar if you happen to use the same locks. the least you will have to do is prove that I have intent to pick the locks on your door without your permission. in addition, plaintiffs ARE effectively stealing from the public domain - by ensuring that their own works do not actually enter the public domain because even after the expiration of copyright, the access control and DMCA STILL make copying it illegal. not sure if there is a special legal term for withholding what is rightfully someone elses, but I'm sure it's in the same category as stealing. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:18:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA12857 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:18:06 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA12846 for ; Wed, 20 Sep 2000 20:18:00 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 17:18:57 -0700 Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Wed, 20 Sep 2000 17:18:55 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/20/2000 05:18:56 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Excellent point. Producing DVDs, VHS or whatever and selling it in stores is PUBLISHING. It is not licensing prints to theatres or TV stations on the condition that they don't reproduce them, pay fees for each showing etc. They just don't get the idea that they are NOT licensing works but publishing them. WRT to >After all, you would be within your rights to >spend a half million dollars on making a perfect >restoration of a public domain movie from the >only surviving print, and only release it >theatrically. Is that stealing from the public >domain also? That's an interesting question. The creator of the restoration has no rights to the movie per se only the prints that they may LICENSE to theaters. By suitable protections they can insure that no copies are made and all prints are accountable. Now suppose that they do not do the latter but toss it in a dumpster or forget to pick one up at a licensee and after notification and a suitable time period the licensee tosses it as abandoned property and it is picked up by someone who knows what it is. Can they now distribute it since the movie is in the public domain? What if the print has a digital watermark? Can the creator of the restoration sue under the DMCA? What if they remove the watermark? The movie is in the public domain but the removing the watermark is illegal. In some ways this is not a hypothetical. Many of the films nominated for Oscars and Emmies are distributed to academy members in LA using video tapes these days. Also, many demo tapes are sent out to rental places. The studios and record studios don't ask for them back. Lots of them wind up in the secondary markets. They are in effect abandoned property and All of these have the "not for commercial use, not to be sold, if you bought this call 1-800-TURN_THEM_IN banners, labels, etc"..why should anyone? Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] "plaintiffs stealing arvard.edu from the public domain" 09/20/00 03:39 PM Please respond to dvd-discuss On Wed, 20 Sep 2000 17:10:10 -0500, John Schulien wrote: >After all, you would be within your rights to >spend a half million dollars on making a perfect >restoration of a public domain movie from the >only surviving print, and only release it >theatrically. Is that stealing from the public >domain also? No. But they are a theatrical business that backed into publishing, and now want to transform publishing into the theater rather than evolve themselves. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:24:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13113 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:24:39 -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 UAA13106 for ; Wed, 20 Sep 2000 20:24:38 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA32344; Wed, 20 Sep 2000 20:26:01 -0400 Date: Wed, 20 Sep 2000 20:26:01 -0400 From: Jim Bauer Message-Id: <200009210026.UAA32344@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST Newsgroups: local.dvd-discuss In-Reply-To: <39C80284.CF33A095@mediaone.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > >This is just Eric Eldred's statement -- somewhat >gutted. > >[With cheating] this fits in twenty 12 point Courier lines on >an 8 1/2 by 11 with 1" margines... > > >STATEMENT OF INTEREST > >The amici represent engineers, scientists, lawyers, professors, >technologists, students, and inventors, all of whom come together >voluntarily on OpenLaw[1], a public forum for discussing law and the >Internet openly online. > >Our interest is in helping the Court understand how to apply copyright >law to the Internet. We are all deeply disturbed by the Court's >decision to extend almost unlimited patent-like control over digital >media to movie studios and other big publishers. We do not represent >commercial interests, but instead we belong to the Open Source movement >wrongly maligned by plaintiffs. The lower court's decision threatens >our rights, freedom, and community--without this community the current >Internet would not have been invented, and the next Internet will not >arise. I would have that last sentence to just: "The lower court's decision threatens our rights, freedom, and community--without this community the Internet would never have come into existance." Or parhaps "...the Internet would not exist." > We do not seek to steal any "property"; instead, we object to >plaintiffs stealing from the public domain. We hope the Courts will >agree that the Constitution does not permit this. >--- >[1]Although OpenLaw is kindly hosted by the Berkman Center for Internet >and Society at Harvard Law School, we do not represent the Center's >position, but instead write as individuals and as an independent >community. > -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:36:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13443 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:36:50 -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 UAA13439 for ; Wed, 20 Sep 2000 20:36:48 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id RAA17817 for ; Wed, 20 Sep 2000 17:38:03 -0700 Date: Wed, 20 Sep 2000 17:38:03 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" 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, 20 Sep 2000 Michael.A.Rolenz@aero.org wrote: > Excellent point. Producing DVDs, VHS or whatever and selling it in > stores is PUBLISHING. It is not licensing prints to theatres or TV > stations on the condition that they don't reproduce them, pay fees for > each showing etc. They just don't get the idea that they are NOT > licensing works but publishing them. This is a vital point. But we have to be very careful about how we make it. We can't just come out and say "licensing isn't publishing" because we're not experts on those things. Specifically, we're claiming to be technology experts (and compared to 90% of the population and, I'd wager, 99.99% of the judicial system, are) and we need to couch ALL of our arguments in our understanding of technology and how we might help the court. I suggest that we discuss encryption and how it ONLY allows for licensing and the only way to PUBLISH encrypted works is to publish the keys... ALL the keys. This ties into the authority model (which also must be couched in terms of technology) and how the first sale doctrine applies (or cannot be applied) to the DMCA. > That's an interesting question. The creator of the restoration has no > rights to the movie per se only the prints that they may LICENSE to > theaters. Correct. And only if the license is violated does the restoration's creator have legal recourse. If, in complete accordance with the license, a copy falls into the hands of a person not bound by any license, that person has unrestricted use of the work. > What if the print has a digital watermark? Can the creator of the > restoration sue under the DMCA? What if they remove the watermark? The > movie is in the public domain but the removing the watermark is > illegal. These are the issues brought up by DMCA... issues that perhaps make it unconstitutional... issues that make this law a threat to the free trade of information. > In some ways this is not a hypothetical. Many of the films nominated > for Oscars and Emmies are distributed to academy members in LA using > video tapes these days. Also, many demo tapes are sent out to rental > places. The studios and record studios don't ask for them back. > Lots of them wind up in the secondary markets. They are in effect > abandoned property and All of these have the "not for commercial use, > not to be sold, if you bought this call 1-800-TURN_THEM_IN banners, > labels, etc"..why should anyone? Well, they usually say "this is the property of ", so you might carry the burden of proof as to showing the copy legitimately fell into your hands. Is that true? Isn't that contrary to American criminal law in general? Isn't the burden always on the prosecutor? Actually... if the original owner of the physical medium licenses it to somebody and they violate that license and give copies away, can the people who received the copies REALLY be liable for the crimes of the license violator? Anyway, curiosity is getting the better of me. I really should go to law school. J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 20:55:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13889 for dvd-discuss-outgoing; Wed, 20 Sep 2000 20:55:31 -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 UAA13886 for ; Wed, 20 Sep 2000 20:55:30 -0400 Received: from ppp.anonymizer.com (c01-062.015.popsite.net [64.24.72.62]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA17842 for ; Wed, 20 Sep 2000 17:58:45 -0700 (PDT) Message-Id: <4.3.2.7.2.20000920174407.04cbd4d0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 20 Sep 2000 17:55:24 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" In-Reply-To: References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 05:38 PM 9/20/2000 -0700, Jeme A Brelin wrote: >We can't just come out and say "licensing isn't publishing" because we're >not experts on those things. Specifically, we're claiming to be >technology experts (and compared to 90% of the population and, I'd wager, >99.99% of the judicial system, are) and we need to couch ALL of our >arguments in our understanding of technology and how we might help the >court. YES! YES! YES! OH, BABY, YES! ;-) I alluded to the point early on - one of the reasons why I suggested axing some sections from Bryan's first outline, coupled with knowledge that there was no way we could write that outline in 15 pp - but Jeme just said it better than I have. Compared to the average person on this list, I'm not a technology expert by any means, but mostly from what I've necessarily learned from my fellow (current and former) Censorware Project members, I fit that description. "Our" technology knowledge, as applied to the law, is where we can help the Court the most, it is where we should be focusing out efforts. Thank you, Jeme. Literally, I could not have said it better myself. -------------------------------------------------------------------- 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 Sep 20 21:10:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14273 for dvd-discuss-outgoing; Wed, 20 Sep 2000 21:10:31 -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 VAA14270 for ; Wed, 20 Sep 2000 21:10:30 -0400 Received: from ppp.anonymizer.com (c01-062.015.popsite.net [64.24.72.62]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA21569 for ; Wed, 20 Sep 2000 18:13:42 -0700 (PDT) Message-Id: <4.3.2.7.2.20000920175601.05022150@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 20 Sep 2000 18:11:39 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: <20000920200753.E6358@eldritchpress.org> References: <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> <20000920213854.12097.qmail@web514.mail.yahoo.com> <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:07 PM 9/20/2000 -0400, Eric Eldred wrote: >On Wed, Sep 20, 2000 at 04:26:17PM -0700, James S. Tyre wrote: > > > > > The raison d'etre of the statement of interest is to tell the Court who we > > are, why we have an interest in the case, and why we have the > > qualifications/perspective to do more than just ape what the defense may > > say. The copyright law profs who submitted the napster amicus really > > didn't need to say much more about who they are than "we're a passelful of > > copyright law profs". We do. Odds are the Second Circuit has never seen > > the likes of us. > >Would the circuit judges be interested in the unique OpenLaw >forum that brings us together? I think a little explanation >would intrigue them--isn't it probably the first time they have >encountered such a brief instead of from lawyers, who are >mostly paid for their work? Yes, but how to describe Openlaw in less than a paragraph? (Not saying it can't be done, just haven't thought through language which does it well.) BTW, while lawyers do have a bad rep, sometimes deservedly, please don't think that, especially in the kinds of cases which are of natural interest to this list, most do it for money. There are many, many net-speech cases in which academician lawyers, public service lawyers such as those at ACLU and private practice lawyers such as myself have gladly donated our time. It has been correctly pointed out that the Net is not special, at least in terms of precedent-applicability, but there is a large core of us who realize that net-speech cases are foreign to most, and do what we can to help guide in the right direction. -------------------------------------------------------------------- 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 Sep 20 21:27:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14749 for dvd-discuss-outgoing; Wed, 20 Sep 2000 21:27:24 -0400 Received: from hotmail.com (f234.law9.hotmail.com [64.4.9.234]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA14746 for ; Wed, 20 Sep 2000 21:27:22 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Wed, 20 Sep 2000 18:28:15 -0700 Received: from 209.206.24.7 by lw9fd.law9.hotmail.msn.com with HTTP; Thu, 21 Sep 2000 01:28:15 GMT X-Originating-IP: [209.206.24.7] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Shortened Bryan's First Draft of Part II (First Amendment) Date: Wed, 20 Sep 2000 21:28:15 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 21 Sep 2000 01:28:15.0533 (UTC) FILETIME=[36DD75D0:01C0236B] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Being a naturally terse writer, I've shrunk Bryan's draft. I can't compare to his great eloquence, but it is 22 lines shorter while containing substantially all of the original material. I must admit there were a few spots where I wasn't sure I "got it" so I may have accidentally changed the meaning in a spot or two. Admittedly 22 lines isn't much, but it's something. Here it is (1-4 are unchanged): 5 The Court ruled correctly that both source and object code are speech. Both 6 forms are copyrightable 'literary works', two Circuits hold that encryption 7 source code is scientific speech, and expert testimony by Dr. Touretzky shows 8 that all forms of computer code (including binary object code) comminicate ideas. 9 10 The Court then makes a serious error by finding that the DMCA restricts such 11 speech, citing the O'Brien standard for symbolic conduct. This misconstrues the 12 statue, and is little more than a rehash of the refuted Bernstein dissent. The 13 Court fails to counter Judge Fletcher's analysis that shows O'Brien can't apply. 14 15 1. Speech Using Computer Products not in Statutory Scope 16 17 The Court found that software is 'technology' per §1201(a)(2). It also found that 18 DeCSS is expressive, yet fails to acknowledge that Congress limited the reach of 19 (a)(2) with §1201(c)(4). The scope of regulated 'technology' cannot "diminish any 20 rights of free speech or the press for activities using ... computer products". 21 Creating and distributing expressive software is clearly such an activity. 22 23 Commercial software, which is not free and usually has the source code withheld 24 in order to spurn communication of its workings, may or may not be regulable. We 25 take no position on Real Networks v Streambox other than to note that it is 26 distinguished by lack of communicational intent, (DVD's are also purchased, so 27 fair use and §109(c) apply). The legislative history frequently refers to 'black 28 boxes', showing concern for something entirely different than open source free 29 software created collaboratively by the public. Publicly developed software is 30 the most significant alternative to the Microsoft monopoly, so the vague word 31 'technology' must not be construed to stiffle the blossoming open source movement. 32 33 2. Prior Restraints are Forbidden By the Statute 34 35 The Court violently misrepresents the statute on p83 of its opinion. To justify 36 injunctive relief via a prior restraint, the Court placed ellipses over the words 37 "but in no event shall impose a prior restraint on free speech or the press 38 protected under the 1st amendment to the Constitution;" when it quoted 39 §1203(b)(1)'s judicial empowerment. 40 41 This is as clear a reversible error as can possibly be imagined. The First 42 Amendment cannot be removed by ellipses. Computer code "is .. 'protected' by the 43 First Amendment" the Court tells us on p51, but it procedes to exercise power 44 forbidden to it even while it "assumes that the permanent injunction plaintiff 45 seeks would be a 'prior restraint'" (footnote 268, p66). 46 47 3. O'Brien Analysis Avoidable and Inappropriate 48 49 Congress excluded abridging speech and prior restraints from the scope of the 50 statute for good reason: to avoid Constitutional questions. A narrow construction 51 of 'technology' is required to avoid Constitutional problems even absent §1201(c)(4) 52 and §1203(b)(1). "Where an otherwise acceptable construction of a statue would 53 raise serious constitutional problems, the Court will construe the statue to avoid 54 such problems unless such construction is plainly contrary to the intent of Congress." 55 Edward J.DeBartolo Corp. v Florida Gulf Coast Building & Construction Trades Council, 56 485 U.S. 568, 575 (1988); see also Public Citizen v USDOJ, 491 U.S. 440 (1989). 57 58 Instead the Court presses the issue, seeking justification with misplaced reference 59 to US v O'Brien. O'Brien burned his draft card as an act of symbolic conduct, and 60 was arrested for knowingly destroying the government document. The Supreme COurt 61 rejected his First Amendment argument, saying "when 'speech' and 'nonspeech' 62 elements are combined in the same course of conduct, a sufficiently important 63 governmental interest in regulating the nonspeech element can justify incidental 64 limitations on First Amendment freedoms." O'Brien at 376. 65 66 The Court essentially takes the refuted position of the Bernstein dissent that 67 software's functional aspects control. The shift from "conduct" to "functionality", 68 reaches too far. Functionality simply is not conduct. Moreover the information 69 transfered is not yet even functional. As Judge Fletcher correctly noted, source 70 code "cannot be used to control directly the functioning of a computer" (Bernstein 71 at 4234). Even object code is only "functional" after installation on the correct 72 platform. Functionality exists only on a machine that can execute the code. 73 74 An O'Brien analysis might apply to save an (a)(1) claim against the act of 75 circumvention, but distributing a software 'literary work' under (a)(2) involves 76 no non-speech conduct at all. The vibration of vocal cords, the scratches of a 77 pencil on paper, and download of a web page or program, are all pure speech conduct. 78 79 In fact, the public distribution of source code is part of the message of the free 80 software movement, which promotes voluntary open communication of programming 81 details. In Bery v City of New York, 95-9089 (2nd Cir. 1996), this Circuit 82 reversed the application of O'Brien's symbolic conduct standard to New York City's 83 General Vendors Law applied to peddling art in the streets, saying "the street 84 marketing is in fact a part of the message of appellants' art" and rejected 85 arguments that such acts are non-speech conduct. 86 87 The idea that "'direct functionality' overwhelms any constitutional protections 88 that expression might otherwise enjoy ... would prove too much in this era of 89 rapidly evolving computer capabilities. The fact that computers will soon be able 90 to respond directly to spokent commands, for example, should not confer on the 91 government the unfettered power to impose prior restraints on speech in an 92 effort to control its 'functional' aspects." Bernstein, 4235. 93 94 The communicative nature of source code is inseparably intertwined with its form. 95 The O'Brien standard does not apply simply because nonspeech elements exist. 96 "If it were, we would have expected the Supreme Court to start and end its 97 analysis of David Paul O'Brien's burning of his draft card with an inquiry into 98 whether he was kept warm by the ensuing flames." Bernstein, footnote 16 at 4235. 99 100 Only 'incidental limitations' to the speech elements are allowed. When protected 101 speech cannot be cleanly separated from the supposed nonspeech elements, the 102 First Amendment requires full protection. Extensive unrebutted expert testimony 103 in this trial confirmed that all forms of computer code have expressive properties. 104 The existance of a machine, not part of the distributed text, that can enable 105 conduct from the mere description of a method does not "transmogrif[y the 106 distribution of ... "expression" into 'conduct' deserving of diminished First 107 Amendment protection." Bernstein, at 4237. O'Brien does not apply to distribution 108 of open source software; strict scrutiny is required. 109 110 B. Intermediate Scrutiny Requires More Than A Rubber Stamp 111 112 Even where symbolic conduct's nonspeech aspects "require a standard less than 113 that of strict scrutiny ... they also require attention to the details of 114 intermediate scrutiny. Regulations ... which burden protected speech are not to 115 be rubber-stamped. " Houston v. Horton, No. 98-20031 (5th Cir. 1999). Indeed 116 symbolic conduct is often protected. See Texas v. Johnson 491 U.S. 397 (1989) 117 (flag burning), R.A.V. v. ST. PAUL, 505 U.S. 377 (1992) (cross burning), Tinker 118 v. Des Moines School District, 393 U.S. 503 (1969) (wearing black armbands). 119 120 O'Brien defines a rigorous four part test. To ban speech via the regulation of 121 nonspeech elements, the Court must prove that the law is (1) within the 122 constitutional power of the government; (2) furthers an important governemental 123 interest; (3) the governemnt interest is unrelated to the suppression of free 124 expression; (4) the incidental restriction on First Amendment freedoms is no more 125 than is essential to the furtherance of that government interest. 126 127 The Court's application of O'Brien fails to apply these test rigorously and fails 128 to examine (1) and (4) completely. The result is far too facile to stand. 129 130 C. DMCA Exceeds Congressional Power 131 132 The Constitutional justification for the DMCA is dubious. The Court's 89 page 133 opinion is silent on this O'Brien requirement. It simply rubber stamps the law. 134 135 We believe that other groups are better able to make this argument fully; however, 136 we note that Congress believed it was using the Commerce power and not the 137 copyright power. See <>. The effect is nevertheless to grant 138 perpetual patent-like protections to authors for the access control technologies 139 that they use. The law is also being applied to deny the authors of DeCSS their 140 Constitutional right to publish and distribute their software writings. 141 142 Bypassing the limitations in the Copyright Clause with the Commerce Clause 143 cannot stand. Compare Railway Labor Executives' Assn. v Gibbons, 455 US 457 (1982) 144 (bankruptcy clause limits restrict commerce clause powers). 145 146 D. The DMCA Hinders the Substantial Interest it Claims to Further 147 148 In order to sustain a regulation under Intermediate Scrutiny, the Court must 149 examine the reasoning of Congress and find a substantial government interest and 150 a record that supports that the regulation 'furthers' it. 151 152 Here too, we defer to others better positioned to make the case that the DMCA 153 does grave damage to the public's ability to benefit from copyrighted works by 154 making fair use of them. Numerous Supreme Court cases have found that the 155 Constitution "makes reward to the owner a secondary consideration" US v Paramount, 156 334 US 131 (1948). 157 158 "The sole interest of the United States and the primary object in conferring the 159 monopoly lie in the general benefits derived by the public from the labors of 160 authors." Fox Film Corp. v Doyal, 286 US 123 (1932). 161 162 Copyright's delicate balance is the substantial interest, not the "sweat of the 163 brow" of industry. Feist <>. The profits of movie studios to the exclusion 164 of all else are the substantial interest that the lower court seeks to further, 165 but this is not one permitted by the Constitution. 166 167 E. When Applied to Coded Speech, the DMCA is Content-Based 168 169 When 'technology' includes expression, the statute's prohibitions are content 170 based. It restricts speech based on its subject matter. Only truthfull and 171 precise cryptanalysis descriptions are banned. The Court tells us that one can 172 license this truth from it's 'owners', but of course the truth cannot be owned. 173 174 Neither copyright, nor patent, nor a unanimous act of Congress, nor all in 175 combination can constitutionally suppress truthful discourse. The right to speak 176 the truth is the foundation of liberty and very essence of the progress of science. 177 "This Court has emphasized that the First Amendment "embraces at the least the 178 liberty to discuss publicly and truthfully all matters of public concern ..." 179 Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940); see Mills v Alabama, 384 U.S. 180 214, 218 (1966)." Consolidated Edison v. Public Service Commission of N.Y., 447 181 U.S. 530, 537 (1980). 182 183 "The First Amendment's hostility to content-based regulation extends not only to 184 restrictions on particular viewpoints, but also to prohibition of public 185 discussion of an entire topic. As a general matter, 'the First Amendment means 186 that government has no power to restrict expression because of its message, its 187 ideas, its subject matter, or its content.'" Consolidated Edison at 537, see also 188 Simon & Schuster v NY State Crime Victims Bd. 502 US 105, 116 (1991) and Burson 189 v Freeman, 504 US 191 (1992) 190 191 Also, when exceptions are made to a general ban, each exception must be content- 192 neutral. Foti v Menlo Park 97-16061 (9th Cir. 1998), Ladue v Gilleo, No. 92-1856 193 (1994). The Court fails completely to examine the many exceptions within §1201. 194 Subject matter and speaker distinctions invoke Equal Protection analysis and are 195 content-based. See, e.g., Carey v Brown, 447 US 455, 459-471 (1980) (ordinance that 196 forbade certain kinds of picketing but exempted labor picketing); Police Dept. of 197 Chicago v Mosley, 408 US 92, 98-102 (1972) (same); US v Playboym 98-1682 (2000). 198 199 §1201(d) and (e) fail content-neurtrality as they promote the speech of libraries, 200 educational institutions, and government. §1201(f)(1) grants a similar exception 201 based on subject matter: only noninfringing "analysis" of computer programs is 202 covered. The restriction of §1201(f)(3) on the release of 'information' is facially 203 content-based, as is §1201(g) which allows 'research' only on the subject of 204 'encryption' and only when the speaker is congressionally annointed as "employed, 205 ... trained or experienced, in the field of encryption technology". 206 207 Moreover §1201(g) contradicts itself by favoring research when the "information ... 208 was disseminated" in (g)(3)(A), while (g)(4) allows dissemination only to a person 209 ... working collaboratively". Regardless of this irrationality, both restrictions 210 are content based. "Mandating speech that a speaker would not otherwise make 211 necessarily alters the content of the speech. We therefore consider [this] as a 212 content-based regulation of speech." Riley v Nat. Fed. Blind, 487 US 781 (1988). 213 See also Miami Herald Publishing Co. v Tornillo, 418 US 241, 256 (1974). 214 215 The pages of intermediate scrutiny precedent are thick with such analyses, but 216 lower court prefered the "rubber stamp". 217 218 F. The DMCA Excessively Burdens Speech 219 220 Despite the fact that the O'Brien standard requires an analysis to determine 221 whether the incidental restrictions on First Amendment freedoms is no greater 222 than is essential to the furtherance of a government interest, the lower court 223 amazingly refuses on p74 to examine the overbreadth of the statute's effect on 224 "the fair use community", because "The Court simply does not have a sufficient 225 evidentiary record on which to evaluate their claims." (footnote 246) The Court 226 again shirks the rigors of intermediate scrutiny in favor of a "rubber stamp". 227 228 The Court seems to deny the Constitutional import of fair use. On p71, it 229 questions "whether the interests of the absent third parties upon whom 230 defendants rely really are substantial". 231 232 Justice O'Connor, in contrast, refers to "the First Amendment protections 233 already embodied in the Copyright Act's distinction between copyrightable 234 expression and uncopyrightable facts and ideas, and the latitude for scholarship 235 and comment traditionally afforded by fair use." Harper & Row v Nation 236 Enterprises, 471 US 539, 560 (1985). Fair use is a critical part in the delicate 237 balance that copyright must maintain to avoid damaging the greater fundamental 238 right of free expression. The concerns of "the fair use community", which is all 239 of humanity including thinkers not yet born are quite substantial indeed. 240 241 The DMCA, which enumerates a few limited exceptions to its general prohibitions, 242 is fundamentally flawed. "The fair use doctrine thus 'permits [and requires] 243 courts to avoid rigid application of the copyright statute when, on occasion, it 244 would stifle the very creativity which that law is designed to foster.' Stewart v 245 Abend, 495 US 207, 236 (1990)" Cambell v Acuff-Rose, No. 92-1292, (1994) at 7. 246 247 Justice Souter wrote for the unanimous Supreme Court in Cambell where the origin 248 and necessity of fair use is grounded. Fair use is "judge-made doctrine", that 249 Congress meant only "to restate" in §107. The "doctrine it recognizes, calls for 250 case-by-case analysis." Cambell at 6-7. _________________________________________________________________________ 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 Wed Sep 20 21:38:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15070 for dvd-discuss-outgoing; Wed, 20 Sep 2000 21:38:13 -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 VAA15067 for ; Wed, 20 Sep 2000 21:38:12 -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 VAA26476 for ; Wed, 20 Sep 2000 21:39:33 -0400 (EDT) Message-ID: <39C966CD.60F3753F@mediaone.net> Date: Wed, 20 Sep 2000 21:39:25 -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] STATEMENT OF INTEREST [rev 3.0] 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'm inclined to suggest breaking this discussion off for the time being. I think we've done enough work on defining ourselves, and the final form of this statement will have to depend upon the rest of the brief. Here it is as I've grokked so far: STATEMENT OF INTEREST The amici are engineers, programmers, scientists, lawyers, professors, students, and inventors, all of whom collaborate voluntarily on OpenLaw, an online public forum for discussing law. We are interested in helping the Court decide how to apply copyright law to technology. We are all deeply disturbed by the decision to extend unlimited patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests, but instead belong to the Open Source movement wrongly maligned by plaintiffs. The lower court's decision threatens our rights, freedoms, and community; without these, the current Internet would not have been invented, and the next will not arise. We do not seek to steal any property; instead, we object to the plaintiffs' mistreatment of the public domain in concert with Congress. We hope the Courts will agree that the Constitution does not permit this. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 21:48:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15416 for dvd-discuss-outgoing; Wed, 20 Sep 2000 21:48:02 -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 VAA15413 for ; Wed, 20 Sep 2000 21:48:00 -0400 Received: from swbell.net ([64.216.211.206]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G17009WAR4JUI@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 20:36:19 -0500 (CDT) Date: Wed, 20 Sep 2000 20:39:16 -0500 From: Jolley Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST To: dvd-discuss@eon.law.harvard.edu Message-id: <39C966C4.FE9A6891@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: <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> <20000920213854.12097.qmail@web514.mail.yahoo.com> <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> <4.3.2.7.2.20000920175601.05022150@cyberpass.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "James S. Tyre" wrote: > > > >Would the circuit judges be interested in the unique OpenLaw > >forum that brings us together? I think a little explanation > >would intrigue them--isn't it probably the first time they have > >encountered such a brief instead of from lawyers, who are > >mostly paid for their work? > > Yes, but how to describe Openlaw in less than a paragraph? (Not saying it > can't be done, just haven't thought through language which does it well.) > I've noticed in the last several versions of "statement of interest" that the footnote has disappeared. The footnote should come back along with a link. The circuit judges may be interested in finding out for themselves what is going on with dvd-discuss. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 22:12:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16090 for dvd-discuss-outgoing; Wed, 20 Sep 2000 22:12:49 -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 WAA16087 for ; Wed, 20 Sep 2000 22:12:44 -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 WAA18301 for ; Wed, 20 Sep 2000 22:14:06 -0400 (EDT) Message-ID: <39C96EEE.88E927EF@mediaone.net> Date: Wed, 20 Sep 2000 22:14:06 -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] Suggested new STATEMENT OF INTEREST References: <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> <20000920213854.12097.qmail@web514.mail.yahoo.com> <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> <4.3.2.7.2.20000920175601.05022150@cyberpass.net> <39C966C4.FE9A6891@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: > > "James S. Tyre" wrote: > > > > > >Would the circuit judges be interested in the unique OpenLaw > > >forum that brings us together? I think a little explanation > > >would intrigue them--isn't it probably the first time they have > > >encountered such a brief instead of from lawyers, who are > > >mostly paid for their work? > > > > Yes, but how to describe Openlaw in less than a paragraph? (Not saying it > > can't be done, just haven't thought through language which does it well.) > > > > I've noticed in the last several versions of "statement of interest" > that > the footnote has disappeared. The footnote should come back along with > a link. The circuit judges may be interested in finding out for > themselves what is going on with dvd-discuss. I lost the footnote because there was no way I was going to squeeze out enough to include it in 20 lines. I like the idea of using a hyperlink -- it fits well with the injunction. ;) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 22:55:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17348 for dvd-discuss-outgoing; Wed, 20 Sep 2000 22:55:08 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA17345 for ; Wed, 20 Sep 2000 22:55:06 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA02353 for ; Wed, 20 Sep 2000 22:56:26 -0400 (EDT) Message-ID: <39C978D6.BF6443A6@mediaone.net> Date: Wed, 20 Sep 2000 22:56:22 -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] Shortened Bryan's First Draft of Part II (First Amendment) 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: > > Being a naturally terse writer, I've shrunk Bryan's draft. > I can't compare to his great eloquence, but it is 22 lines > shorter while containing substantially all of the original > material. > > I must admit there were a few spots where I wasn't sure I > "got it" so I may have accidentally changed the meaning in > a spot or two. > > Admittedly 22 lines isn't much, but it's something. > Here it is (1-4 are unchanged): I don't see being able to cut much more out of it without cutting out substantial arguments, and we don't know what arguments to cut. I think we should make sure this material is fully modular so we can throw out whatever is made redundant by the defense argument. We might also see if we can tighten it up any more -- for all we know, the defense brief might not discuss the First Amendment at all... If someone who has a better grasp of the legal boundaries doesn't break it up into sections first, I can break it up into more discussable units. How it gets partitioned makes a difference. It would be better if someone with experience arguing legal points cut it up. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 23:18:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18022 for dvd-discuss-outgoing; Wed, 20 Sep 2000 23:18:33 -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 XAA18013 for ; Wed, 20 Sep 2000 23:18:31 -0400 Received: from ip151.bedford2.ma.pub-ip.psi.net ([38.32.10.151]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13bwtt-0000zn-00 for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 23:19:54 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shortened Bryan's First Draft of Part II (First Amendment) Date: Wed, 20 Sep 2000 23:23:18 -0400 Message-ID: References: In-Reply-To: X-Mailer: Forte Agent 1.8/32.548 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id XAA18020 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'd like to define black box, in the complete absence of any definition in the law... On Wed, 20 Sep 2000 21:28:15 EDT, Harold Eaton wrote: >26 distinguished by lack of communicational intent, (DVD's are also >purchased, so >27 fair use and §109(c) apply). The legislative history frequently refers to >'black >28 boxes'--an undefined layman's reference to one type of descrambling device, usually used in conjunction with a non-addressable cable television tuner to view scrambled broadcasts. In the realm of physical DVD media, sold or rented in the marketplace, the only black box is the one with the DVD logo on it, sold by manufacturers. This "legitimate" player is burdened with unknown rules of use and authority, and usurps the viewer's traditional right to view his media purchase in the manner in which he chooses. Any black box is a far cry from..... >open source, free >29 software created collaboratively by the public. Publicly developed >software is >30 the most significant alternative to the Microsoft monopoly, so the vague __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 20 23:42:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18550 for dvd-discuss-outgoing; Wed, 20 Sep 2000 23:42:22 -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 XAA18547 for ; Wed, 20 Sep 2000 23:42:20 -0400 Message-ID: <20000921034342.473.qmail@web6404.mail.yahoo.com> Received: from [24.91.21.179] by web6404.mail.yahoo.com; Wed, 20 Sep 2000 20:43:42 PDT Date: Wed, 20 Sep 2000 20:43:42 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Outline for Appellate Amicus Version 3 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 not sure where it would fit in, but do we want to mention Kaplan's "One cannot lawfully gain access to the keys except by entering into a license with the DVD CCA...?" To me, it seems to be one of his most blatant abuses of discretion. I don't even know what it falls under - finding of fact? of law? of wishful thinking? This is essentially a "non-existence theorem" (outside [...], there isn't a way to gain access to the keys, which is lawful). About the only way to prove it would be by opposite - proving that any other possible "way" would have to be unlawful. Are there any precedents at all of finding by a court that "there is no lawful way to do X?" I mean, how can a judge know that someone won't come up with one tomorrow, even if the judge himself can't think of one? That is, of course, unless there is an explicit law that says that doing X is always illegal. I believe it is a significant point. Kaplan used this argument to show that ``CSS "effectively controls access" to copyrighted DVD movies.'' And if CSS doesn't "effectively control access," then all DeCSS' possible illegality goes out of the window. __________________________________________________ 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 Sep 21 00:24:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA19538 for dvd-discuss-outgoing; Thu, 21 Sep 2000 00:24:16 -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 AAA19535 for ; Thu, 21 Sep 2000 00:24:13 -0400 Received: from tneu.visi.com (tneu.visi.com [163.228.19.198]) by tneu.visi.com (Postfix) with ESMTP id 1E922853 for ; Wed, 20 Sep 2000 23:01:27 -0500 (CDT) Date: Wed, 20 Sep 2000 23:01:26 -0500 (CDT) From: tim To: dvd-discuss Subject: Re: [dvd-discuss] STATEMENT OF INTEREST [rev 3.0] In-Reply-To: <39C966CD.60F3753F@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 Wed, 20 Sep 2000, Sphere wrote: > I'm inclined to suggest breaking this discussion off > for the time being. I think we've done enough work > on defining ourselves, and the final form of this > statement will have to depend upon the rest of the > brief. Agreed, after two tiny suggestions! ;-) 1. The "next generation internet" is kindof irrellevent. I think we should axe the clause from the sentence altogether. It doesn't really belong, and it will be less confusing. (how many judges would even know about "next generation" internet technologies?) We don't think we should speculate on future events. We have enough damage now to talk about without talking about what might or might not happen in the future. 2. Somewhere (later on), I think we need to mention the balance between copyright owners and users of copyrighted material - with the lower court's ruling there is no balance, because any desired terms of the publisher can be legally enforced by a TPM. That does not belong in the SOI though. It's not as though we would forget this section, but this is one point we need to hammer home. The MPAA is dropping a big old rock on their side of the scales of justice! There is no balance. > Here it is as I've grokked so far: > > STATEMENT OF INTEREST > > The amici are engineers, programmers, scientists, lawyers, professors, > students, and inventors, all of whom collaborate voluntarily on OpenLaw, > an online public forum for discussing law. > > We are interested in helping the Court decide how to apply copyright law > to technology. We are all deeply disturbed by the decision to extend > unlimited patent-like control over digital media to movie studios and > other big publishers. We do not represent commercial interests, but > instead belong to the Open Source movement wrongly maligned by > plaintiffs. The lower court's decision threatens our rights, freedoms, > and community; without these, the current Internet would not have been > invented, and the next will not arise. We do not seek to steal any > property; instead, we object to the plaintiffs' mistreatment of the > public domain in concert with Congress. We hope the Courts will agree > that the Constitution does not permit this. -- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 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 / <_/ / / < / (_; Thu, 21 Sep 2000 00:29:47 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id AAA00879; Thu, 21 Sep 2000 00:30:57 -0400 Date: Thu, 21 Sep 2000 00:30:57 -0400 From: Jim Bauer Message-Id: <200009210430.AAA00879@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shortened Bryan's First Draft of Part II (First Amendment) Newsgroups: local.dvd-discuss In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson wrote: > >I'd like to define black box, in the complete absence of any definition >in the law... > >On Wed, 20 Sep 2000 21:28:15 EDT, Harold Eaton wrote: > >>26 distinguished by lack of communicational intent, (DVD's are also >>purchased, so >>27 fair use and 109(c) apply). The legislative history frequently refers to >>'black >>28 boxes'--an undefined layman's reference to one type of descrambling >device, usually used in conjunction with a non-addressable cable television >tuner to view scrambled broadcasts. > >In the realm of physical DVD media, sold or rented in the marketplace, the only >black box is the one with the DVD logo on it, sold by manufacturers. This >"legitimate" player is burdened with unknown rules of use and authority, and >usurps the viewer's traditional right to view his media purchase in the manner >in which he chooses. > >Any black box is a far cry from..... >>open source, free >>29 software created collaboratively by the public. Publicly developed >>software is >>30 the most significant alternative to the Microsoft monopoly, so the vague > Here are some definitions of "black box". This should be a reasonable same ignoring all the aircraft flight recorders references. http://www.dictionary.com/cgi-bin/dict.pl?term=black+box 1. a. A device or theoretical construct with known or specified performance characteristics but unknown or unspecified constituents and means of operation. b. Something that is mysterious, especially as to function. http://www.mkdata.dk/click/dictionary/dic/dic_b07.htm An expression for an electronic component, whose function is not understood. A "black" box which is connected with cables and plugs. http://www.harcourt.com/dictionary/def/1/3/2/3/1323800.html black box Engineering. 2. an informal term for any compact electronic device that controls or monitors a system, and that is considered to have internal functions or processing sequences which are intricate (and mysterious to some persons). an informal term for any compact electronic device that controls or monitors a system, and that is considered to have internal functions or processing sequences which are intricate (and mysterious to some persons). Computer Technology. a type of specialized hardware for converting one code into another. http://www.oasismanagement.com/frames/glossary/b.html?glossary/b.html#black_box Black Box - Is software that is used for proprietary trading or analytical purposes. The key rules and core algorithms are not revealed to the users. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 00:45:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA20137 for dvd-discuss-outgoing; Thu, 21 Sep 2000 00:45:55 -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 AAA20134 for ; Thu, 21 Sep 2000 00:45:54 -0400 Received: from swbell.net ([64.216.211.206]) by mta5.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1700HDAZU7BN@mta5.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Wed, 20 Sep 2000 23:44:31 -0500 (CDT) Date: Wed, 20 Sep 2000 23:47:24 -0500 From: Jolley Subject: Re: [dvd-discuss] 4C entity To: dvd-discuss@eon.law.harvard.edu Message-id: <39C992DC.F04EBFE0@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: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Claus Adamsen wrote: > > > Check out Kelly v. Arriba: > > http://pub.bna.com/ptcj/99-560.htm > This case also mentions "deep linking". If I remember correctly, this was a topic Kaplan was fishing for to use against the defendents. In this case the plaintiff is the one that doesn't want others to link to their site (arbitrary parts of the site.) It seems the plaintiffs want everyone to see all of the advertisements on every page down to the "deep link." From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 01:03:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21338 for dvd-discuss-outgoing; Thu, 21 Sep 2000 01:03:46 -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 BAA21335 for ; Thu, 21 Sep 2000 01:03:34 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA06897 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 01:05:33 -0400 Date: Thu, 21 Sep 2000 01:05:28 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] STATEMENT OF INTEREST [rev 3.0] Message-ID: <20000921010528.F6358@eldritchpress.org> References: <39C966CD.60F3753F@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from tim@tneu.visi.com on Wed, Sep 20, 2000 at 11:01:26PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Sep 20, 2000 at 11:01:26PM -0500, tim wrote: > On Wed, 20 Sep 2000, Sphere wrote: > > > I'm inclined to suggest breaking this discussion off > > for the time being. I think we've done enough work > > on defining ourselves, and the final form of this > > statement will have to depend upon the rest of the > > brief. > > Agreed, after two tiny suggestions! ;-) > > 1. The "next generation internet" is kindof irrellevent. I think we > should axe the clause from the sentence altogether. It doesn't really > belong, and it will be less confusing. (how many judges would even know > about "next generation" internet technologies?) okay. > > We don't think we should speculate on future events. We have enough > damage now to talk about without talking about what might or might not > happen in the future. > > 2. Somewhere (later on), I think we need to mention the balance > between copyright owners and users of copyrighted material - with the > lower court's ruling there is no balance, because any desired terms of the > publisher can be legally enforced by a TPM. That does not belong in the > SOI though. in the brief, not the STATEMENT OF INTEREST, okay? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 03:00:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA23865 for dvd-discuss-outgoing; Thu, 21 Sep 2000 03:00:21 -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 DAA23862 for ; Thu, 21 Sep 2000 03:00:20 -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 DAA21675 for ; Thu, 21 Sep 2000 03:01:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id DAA14913; Thu, 21 Sep 2000 03:01:43 -0400 (EDT) Date: Thu, 21 Sep 2000 03:01:43 -0400 (EDT) Message-Id: <200009210701.DAA14913@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Outline for Appellate Amicus Version 3 In-Reply-To: <20000921034342.473.qmail@web6404.mail.yahoo.com> References: <20000921034342.473.qmail@web6404.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Pete Broule writes: > I'm not sure where it would fit in, but do we want to mention > Kaplan's "One cannot lawfully gain access to the keys except > by entering into a license with the DVD CCA...?" This fits in nicely with my other arguments that CSS is not an effective access control (a/k/a the "authority" argument), and was actually on my outlines for those (along with a relevant caselaw citation). The rest of that argument consists, in essence, of noting that: A) P's, and the lower court, rely on an "authorized device" interpretation of 1201(a), since CSS never grants access to a person who could not gain access with an ordinary DVD player B) The "authorized device" interpretation constitutes a patent without time limit, with obvious constitutional difficulty, and clear, massive distortion of the player market. C) It clearly isn't what was intended by Congress, based on: a) "authorized person" quotes in Judiciary sec-by-sec analysis (cited by lower court as authoritative!) b) "persons may ... implement a technical measure ... without regard to the input of affected parties" from conference report, which goes on to discuss *protections* for that activity in the law D) Kaplan blew it, as above, and P's also blow it when they say that *any* use of encryption is somehow access control by definition (there are numerous other uses of encryption) It should be possible to do all that in two or three pages, if it fits in the brief... > Are there any precedents at all of finding by a court that > "there is no lawful way to do X?" I mean, how can a judge know > that someone won't come up with one tomorrow, even if the > judge himself can't think of one? That is, of course, unless > there is an explicit law that says that doing X is always > illegal. Particularly not when there *is* a known, lawful way to do X (reverse engineering, as ruled by the 9th circuit in Sega v. Accolade --- a precedent which, according to the Judiciary sec-by-sec analysis, Congress wished to preserve). > I believe it is a significant point. Kaplan used this argument > to show that ``CSS "effectively controls access" to copyrighted > DVD movies.'' And if CSS doesn't "effectively control access," > then all DeCSS' possible illegality goes out of the window. It plainly doesn't, even without Kaplan's argument, based on the quotes mentioned in C) above, which is why I'd like to see them included. Then again, I'd also like to see it mention *someplace* Ashcroft's speech which states explicitly that the law is not meant to ban an otherwise legitimate device based solely on the *possibility* that that device would expose some copyrighted content to unauthorized copying (citing as examples PC-video capture boards which effectively strip out Macrovision)... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 03:04:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA24080 for dvd-discuss-outgoing; Thu, 21 Sep 2000 03:04:51 -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 DAA24077 for ; Thu, 21 Sep 2000 03:04:51 -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 DAA21863 for ; Thu, 21 Sep 2000 03:06:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id DAA16526; Thu, 21 Sep 2000 03:06:15 -0400 (EDT) Date: Thu, 21 Sep 2000 03:06:15 -0400 (EDT) Message-Id: <200009210706.DAA16526@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shortened Bryan's First Draft of Part II (First Amendment) Newsgroups: local.dvd-discuss In-Reply-To: <200009210430.AAA00879@emperor.hwrd1.md.home.com> References: <200009210430.AAA00879@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: > Ron Gustavson wrote: > > > >I'd like to define black box, in the complete absence of any definition > >in the law... > > Here are some definitions of "black box". This should be a reasonable > same ignoring all the aircraft flight recorders references. > > http://www.dictionary.com/cgi-bin/dict.pl?term=black+box > 1. > a. A device or theoretical construct with known or > specified performance characteristics but unknown > or unspecified constituents and means of operation. > b. Something that is mysterious, especially as to function. Unfortunately, none of these have anything to do with what the Congresscritters were talking about (unauthorized cable decoders, and, by implication, other devices whose sole function is to allow people to access for-pay content without paying for it). The references to "black box" in the legislative history clearly refer to a *function* of bypassing some TPM. As I've noted before, this is very different from the common use of the term in engineering, which is what is defined in the dictionaries cited below: > http://www.mkdata.dk/click/dictionary/dic/dic_b07.htm > An expression for an electronic component, whose function is not > understood. A "black" box which is connected with cables and plugs. > > http://www.harcourt.com/dictionary/def/1/3/2/3/1323800.html > black box Engineering. 2. an > informal term for any compact electronic device that controls or > monitors a system, and that is considered to have internal functions > or processing sequences which are intricate (and mysterious to > some persons). an informal term for any compact electronic device > that controls or monitors a system, and that is considered to have > internal functions or processing sequences which are intricate (and > mysterious to some persons). Computer Technology. a type of > specialized hardware for converting one code into another. > > http://www.oasismanagement.com/frames/glossary/b.html?glossary/b.html#black_box > Black Box - Is software that is used for proprietary trading or > analytical purposes. The key rules and core algorithms are not > revealed to the users. > -- > Jim Bauer, jfbauer@home.com > From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 03:40:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA25113 for dvd-discuss-outgoing; Thu, 21 Sep 2000 03:40:04 -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 DAA25110 for ; Thu, 21 Sep 2000 03:40:03 -0400 Received: from proton ([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 <0G1800H6D7RNV7@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 00:35:48 -0700 (PDT) Date: Thu, 21 Sep 2000 00:29:57 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] LiViD In-reply-to: <20000818170312.10282.qmail@web513.mail.yahoo.com> To: dvd-discuss@eon.law.harvard.edu Message-id: <0G1800H6E7RNV7@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 I just had a sick idea pop into my head: As far as distribution of LiViD sources is concerned, why not make the sources available only under a special licence agreement: (1) You must be a developer who is interested in contributing to the LiViD player, (2) You must have no intent to add functionality to it that would convert the tool to something that would violate the DMCA, (3) You must have no intent to evaluate the sources for possible modification as described in (2). The sources would be encrypted with a Caeser cypher and the password would be just some publically available anagram or something like that. (It should be called the Source Code Screambling System.) The idea not to enforce this licence on developers, but rather to make it so that the MPAA would be unable to attack LiViD. If the MPAA tried to do so and perform demonstrations such as the ones they did in the 2600 case, they would have to violate this new licence and therefore be in violation of the DMCA for breaking the access control just to try do this. From: Bryan Taylor > 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/ > > -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 05:17:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA27682 for dvd-discuss-outgoing; Thu, 21 Sep 2000 05:17:09 -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 FAA27679 for ; Thu, 21 Sep 2000 05:17:07 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 21 Sep 2000 11:14:05 +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, 21 Sep 2000 10:57:58 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 21 Sep 2000 10:57:58 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" Message-ID: <20000921105758.A31027@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 Jeme A Brelin wrote: > This is a vital point. But we have to be very careful about how we make > it. > > We can't just come out and say "licensing isn't publishing" because we're doesn't the US copyright system only protect PUBLISHED works? isn't that an excellent shortcut? the movies are published, because they say "(C)2000 by fox" (or whatever). since there is no explicit license that a buyer has to sign, and there is a common perception on what you do or don't own when buying a copyrighted work, claiming an implicity license that at most 0.1% of the customers are even AWARE of is at least fraudulent. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 06:16:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA28846 for dvd-discuss-outgoing; Thu, 21 Sep 2000 06:16:43 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA28843 for ; Thu, 21 Sep 2000 06:16:42 -0400 Received: from jy01 (user-2inij6n.dialup.mindspring.com [165.121.76.215]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id GAA26860 for ; Thu, 21 Sep 2000 06:18:06 -0400 (EDT) Message-Id: <200009211018.GAA26860@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 21 Sep 2000 06:07:21 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Mime-Version: 1.0 Content-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 appeal of Judge Elfving's denial of his motion to quash the court's jurisdiction: http://cryptome.org/dvd-v-521-pqa.htm (94KB) Allonn Levy argues: "Petitioner MATTHEW PAVLOVICH submits this memorandum in support of his pending petition for writ of mandamus compelling the lower court to quash service of process. If DVD CCA's theory of jurisdiction over every DeCSS poster is permitted to stand, the lower Court's order will mark an end to 150 years of traditional jurisdictional analysis and will create California jurisdiction over virtually every Internet user in the world." From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 07:18:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA30233 for dvd-discuss-outgoing; Thu, 21 Sep 2000 07:18:57 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA30230 for ; Thu, 21 Sep 2000 07:18:54 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Thu, 21 Sep 2000 14:17:54 +0200 Message-ID: <39CA534D.661FDF35@easybase.com> Date: Thu, 21 Sep 2000 14:28:30 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.4.0-0.21mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial References: <200009211018.GAA26860@granger.mail.mindspring.net> 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 HAA30231 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > appeal of Judge Elfving's denial of his motion to quash the court's > jurisdiction: > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > > Allonn Levy argues: > > "Petitioner MATTHEW PAVLOVICH submits this memorandum > in support of his pending petition for writ of mandamus compelling > the lower court to quash service of process. If DVD CCA's theory > of jurisdiction over every DeCSS poster is permitted to stand, the > lower Court's order will mark an end to 150 years of traditional > jurisdictional analysis and will create California jurisdiction over > virtually every Internet user in the world." Thank you very much, and my appologies for asking you to post links here.. On related note, I read the whole thing, and i can't get what was the basis on which the court denied the motion. It seemed so straight (sp) forward to me, that i was really surprised to hear that motion was denied. I am not familiar with law, and especially with US law, but if this decision is a norm, shouldn't the state at which the defendant is resident, come forward and protect it's citizens from harassment lawsuits from outside the jurisdiction?. I mean if this same court decides to impose fines on Jon Johansen, wouldn't Norway be in position to defend it's citizen? Isn't it the same with different states within the US? If so, how can one make the state to defend one from lawsuits outside the jurisdiction? Thanks, Moshe Vainer moshev@easybase.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 07:29:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA30585 for dvd-discuss-outgoing; Thu, 21 Sep 2000 07:29:55 -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 HAA30582 for ; Thu, 21 Sep 2000 07:29:55 -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 HAA16330 for ; Thu, 21 Sep 2000 07:31:19 -0400 (EDT) Message-ID: <39C9F187.9B315B92@mediaone.net> Date: Thu, 21 Sep 2000 07:31:19 -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] STATEMENT OF INTEREST [rev 3.0] 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: > > On Wed, 20 Sep 2000, Sphere wrote: > > > I'm inclined to suggest breaking this discussion off > > for the time being. I think we've done enough work > > on defining ourselves, and the final form of this > > statement will have to depend upon the rest of the > > brief. > > Agreed, after two tiny suggestions! ;-) > > 1. The "next generation internet" is kindof irrellevent. I think we > should axe the clause from the sentence altogether. It doesn't really > belong, and it will be less confusing. (how many judges would even know > about "next generation" internet technologies?) > > We don't think we should speculate on future events. We have enough > damage now to talk about without talking about what might or might not > happen in the future. > The reason I haven't cut that clause even when I was cutting things out wholesale is because speculating about what's going to happen to your code is a good part of what a software engineer does for a living. I left it there because doing so helps define who we are fairly cheaply (in terms of space). We're the type of people who brought you the Internet (even the lawyers here). The judge doesn't need to know about next generation tech, but should know that we're the people who are worrying about things like IPv6. ... -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 10:32:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA02639 for dvd-discuss-outgoing; Thu, 21 Sep 2000 10:32:29 -0400 Received: from web512.mail.yahoo.com (web512.mail.yahoo.com [216.115.104.227]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA02636 for ; Thu, 21 Sep 2000 10:32:28 -0400 Message-ID: <20000921143323.28079.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 21 Sep 2000 07:33:23 PDT Date: Thu, 21 Sep 2000 07:33:23 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kaplan on RE To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I reread Kaplan's denial of the reverse engineering exception. I think the outline doesn't respond well to his argument. He really only makes three points (p36-38), none of which relate to whether DeCSS interoperates with anything, but rather if this is "solely" it's purpose, and 2600's role in this. KRE-1. 2600 did no RE & 1201(f)(3) only allows exempts RE'er KRE-2. Had 2600 authored DeCSS, they don't post "solely for the purpose" of interoperability. He cites COMMERCE COMM. REP. at 43 to find that the RE exception doesn't allow circumvention means KRE-3. DeCSS wasn't created "solely" for Linux interoperability, since it runs on Windows, and creaters knew files could be copied. They "fully expected" use would not be confined to Linux interoperability "if, indeed, developing a Linux-based DVD player was among their purposes." We should open a discussion on rebutting these points. __________________________________________________ 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 Sep 21 11:18:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04369 for dvd-discuss-outgoing; Thu, 21 Sep 2000 11:18:13 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04366 for ; Thu, 21 Sep 2000 11:18:12 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 08:19:06 -0700 Subject: Re: [dvd-discuss] "plaintiffs stealing from the public domain" To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 08:19:04 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 08:19:05 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Good point. But I would wager that 99.999% of the legal system has no understanding of the principles of law either. The more I consider the DMCA the more it looks like nothing but a law purchased by a special interest from people who did not consult with anybody on the consequences (Ditto the Sonny Bono copyright extension act...should have been called the "lets keep Mickey MOuse privately owned by Disney"). wrt to tapes. Yes it is true-especially the thrift stores (donations are tax deductable). The last month one store near me had a carton of tapes marked for 'emmy voting viewing". Yes they all are marked "property of _______." yet in no way does "______" do anything about protecting his property, accounting for it, or anything else. Presumably the recipients are responsible for destruction but there are no "instructions" on doing so. Also, having "found" their lost property, what compensation should I get for returning it to them and legally why should I? (In LA, all found found property under $10 may be kept) This also touches on the whole aspect of licenses vs personal property. It's not just limited to DVDs, but also VHS, CDs, software. What seems to have happened recently is that companies have polluted the distinction between licensing and personal property. When I was growing up licensing was typically limited to fanchises, movies, patents, etc - commercial activities. What people bought was personal property. Today companies want to sell you licenses NOT personal property. They want the convenience of selling things as personal property but they want the restrictions of a license without the obligations that come with one. (e.g., replacement of defective or damaged copies, collection and disposal of materials). Jeme A Brelin To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] "plaintiffs stealing arvard.edu from the public domain" 09/20/00 05:40 PM Please respond to dvd-discuss On Wed, 20 Sep 2000 Michael.A.Rolenz@aero.org wrote: > Excellent point. Producing DVDs, VHS or whatever and selling it in > stores is PUBLISHING. It is not licensing prints to theatres or TV > stations on the condition that they don't reproduce them, pay fees for > each showing etc. They just don't get the idea that they are NOT > licensing works but publishing them. This is a vital point. But we have to be very careful about how we make it. We can't just come out and say "licensing isn't publishing" because we're not experts on those things. Specifically, we're claiming to be technology experts (and compared to 90% of the population and, I'd wager, 99.99% of the judicial system, are) and we need to couch ALL of our arguments in our understanding of technology and how we might help the court. I suggest that we discuss encryption and how it ONLY allows for licensing and the only way to PUBLISH encrypted works is to publish the keys... ALL the keys. This ties into the authority model (which also must be couched in terms of technology) and how the first sale doctrine applies (or cannot be applied) to the DMCA. > That's an interesting question. The creator of the restoration has no > rights to the movie per se only the prints that they may LICENSE to > theaters. Correct. And only if the license is violated does the restoration's creator have legal recourse. If, in complete accordance with the license, a copy falls into the hands of a person not bound by any license, that person has unrestricted use of the work. > What if the print has a digital watermark? Can the creator of the > restoration sue under the DMCA? What if they remove the watermark? The > movie is in the public domain but the removing the watermark is > illegal. These are the issues brought up by DMCA... issues that perhaps make it unconstitutional... issues that make this law a threat to the free trade of information. > In some ways this is not a hypothetical. Many of the films nominated > for Oscars and Emmies are distributed to academy members in LA using > video tapes these days. Also, many demo tapes are sent out to rental > places. The studios and record studios don't ask for them back. > Lots of them wind up in the secondary markets. They are in effect > abandoned property and All of these have the "not for commercial use, > not to be sold, if you bought this call 1-800-TURN_THEM_IN banners, > labels, etc"..why should anyone? Well, they usually say "this is the property of ", so you might carry the burden of proof as to showing the copy legitimately fell into your hands. Is that true? Isn't that contrary to American criminal law in general? Isn't the burden always on the prosecutor? Actually... if the original owner of the physical medium licenses it to somebody and they violate that license and give copies away, can the people who received the copies REALLY be liable for the crimes of the license violator? Anyway, curiosity is getting the better of me. I really should go to law school. J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 11:24:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04567 for dvd-discuss-outgoing; Thu, 21 Sep 2000 11:24:02 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04564 for ; Thu, 21 Sep 2000 11:24:01 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 08:24:11 -0700 Subject: Re: [dvd-discuss] 4C entity To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 08:24:10 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 08:24:11 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "deep linking" is something that I had never heard of before (anyone else?). I suspect it's one of those "hacker" jargon made up by the press. I must confess that I really don't understand what their concern is about. Why should anyone have to plow through advertising to get to anything. Magazines, books and even the newspapers have indexes and sections why should an internet site be chained to a linear topology. Jolley Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] 4C entity 09/20/00 09:49 PM Please respond to dvd-discuss Claus Adamsen wrote: > > > Check out Kelly v. Arriba: > > http://pub.bna.com/ptcj/99-560.htm > This case also mentions "deep linking". If I remember correctly, this was a topic Kaplan was fishing for to use against the defendents. In this case the plaintiff is the one that doesn't want others to link to their site (arbitrary parts of the site.) It seems the plaintiffs want everyone to see all of the advertisements on every page down to the "deep link." From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 11:38:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04941 for dvd-discuss-outgoing; Thu, 21 Sep 2000 11:38:30 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04938 for ; Thu, 21 Sep 2000 11:38:28 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 08:37:25 -0700 Subject: Re: [dvd-discuss] LiViD To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 08:37:22 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 08:37:24 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu How about distributing DeCSS using CSS? Or better yet how about just creating a whole series of products using CSS distributed using CSS and then if MPAA sues anybody counter sue them as criminals using the DMCA. Paul Hsieh Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] LiViD 09/21/00 12:44 AM Please respond to dvd-discuss I just had a sick idea pop into my head: As far as distribution of LiViD sources is concerned, why not make the sources available only under a special licence agreement: (1) You must be a developer who is interested in contributing to the LiViD player, (2) You must have no intent to add functionality to it that would convert the tool to something that would violate the DMCA, (3) You must have no intent to evaluate the sources for possible modification as described in (2). The sources would be encrypted with a Caeser cypher and the password would be just some publically available anagram or something like that. (It should be called the Source Code Screambling System.) The idea not to enforce this licence on developers, but rather to make it so that the MPAA would be unable to attack LiViD. If the MPAA tried to do so and perform demonstrations such as the ones they did in the 2600 case, they would have to violate this new licence and therefore be in violation of the DMCA for breaking the access control just to try do this. From: Bryan Taylor > 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/ > > -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 11:42:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05133 for dvd-discuss-outgoing; Thu, 21 Sep 2000 11:42:36 -0400 Received: from localhost.localdomain (root@ts0415.bates.edu [134.181.73.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA05130 for ; Thu, 21 Sep 2000 11:42:33 -0400 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id LAA01068 for ; Thu, 21 Sep 2000 11:57:26 -0500 X-Authentication-Warning: localhost.localdomain: sam owned process doing -bs Date: Thu, 21 Sep 2000 11:57:25 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-Reply-To: <200009211018.GAA26860@granger.mail.mindspring.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Thu, 21 Sep 2000, John Young wrote: > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > appeal of Judge Elfving's denial of his motion to quash the court's > jurisdiction: > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > What's most remarkable about this document is that in the transcript of the hearing, the DVDCCA lawyers spend more time on the merits of the overall case than on the jurisdictional issue at hand. My suspicion is that Elfving, like Kaplan, sees people claiming that the internet has rendered their decisions moot, and wants to prove them wrong, even if it means tromping on due process. They just can't abide the challenge to thier entire authority model (pun intended). sam th sam@uchicago.edu http://www.abisource.com/~sam/ Is it just me, or are people who pun on authority model sick? -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5yj32t+kM0Mq9M/wRAr8dAJwKRXS7mny78K/ZsN/yBIQkGtInRwCg0eVS NTOJT2rs+JtgPa2CQGQsOR0= =IMwH -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 11:53:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06201 for dvd-discuss-outgoing; Thu, 21 Sep 2000 11:53:43 -0400 Received: from localhost.localdomain (root@ts0415.bates.edu [134.181.73.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06198 for ; Thu, 21 Sep 2000 11:53:39 -0400 Received: from localhost (sam@localhost) by localhost.localdomain (8.9.3/8.9.3) with ESMTP id MAA01109 for ; Thu, 21 Sep 2000 12:08:31 -0500 X-Authentication-Warning: localhost.localdomain: sam owned process doing -bs Date: Thu, 21 Sep 2000 12:08:28 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 4C entity In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Thu, 21 Sep 2000 Michael.A.Rolenz@aero.org wrote: > > "deep linking" is something that I had never heard of before (anyone > else?). I suspect it's one of those "hacker" jargon made up by the press. I > must confess that I really don't understand what their concern is about. > Why should anyone have to plow through advertising to get to anything. > Magazines, books and even the newspapers have indexes and sections why > should an internet site be chained to a linear topology. > "Deep linking" is a term for linking in to sub pages of a site, allowing the follower of the link to bypass (not to say circumvent) the front page of the site. This makes people unhappy if much of their revenue model is based on advertising page views. There are two distinct kinds of deep linking (at least that I have heard discussed). One is merely providing a link to a resource that is some sub-page. Universal Pictures got all upset at someone who linked to movie trailers on their website, but I don't think that went to court. The other kind is where the content on the other site is not just linked to, but presented. This is the case below, with ticketmaster. AFAIK, the most significant court case on deep linking is Ticketmaster v Tickets.com, which was decided in favor of Tickets.com, the deep linker. However, this area is still considered murky at best. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5ykCPt+kM0Mq9M/wRArihAKCzKHtnCie7b/NuIPsOKGeFJ9A4SgCfTTmI 3zsPB0Ja8NBCXE+gTvEIoUM= =56AH -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 12:20:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07405 for dvd-discuss-outgoing; Thu, 21 Sep 2000 12:20:14 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA07402 for ; Thu, 21 Sep 2000 12:20:12 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 09:18:52 -0700 Subject: Re: [dvd-discuss] 4C entity To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 09:18:51 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 09:18:51 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Actually, I should have said that I hadn't heard of 'deep linking" before Kaplan mentioned it earlier in the year. Anybody that's been on the internet for more than a week or done a website has been "deep linking" which is why I suspected the word was one made up by the media or legal profession to describe what they don't understand. I hadn't read anything about TM vs. T.com before. A pretty stupid lawsuit. Too bad the Judge didn't throw TM out saying "hey stupid...don't waste this courts valuable time...haven't you ever heard of a firewall?" sam th Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] 4C entity 09/21/00 08:57 AM Please respond to dvd-discuss -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Thu, 21 Sep 2000 Michael.A.Rolenz@aero.org wrote: > > "deep linking" is something that I had never heard of before (anyone > else?). I suspect it's one of those "hacker" jargon made up by the press. I > must confess that I really don't understand what their concern is about. > Why should anyone have to plow through advertising to get to anything. > Magazines, books and even the newspapers have indexes and sections why > should an internet site be chained to a linear topology. > "Deep linking" is a term for linking in to sub pages of a site, allowing the follower of the link to bypass (not to say circumvent) the front page of the site. This makes people unhappy if much of their revenue model is based on advertising page views. There are two distinct kinds of deep linking (at least that I have heard discussed). One is merely providing a link to a resource that is some sub-page. Universal Pictures got all upset at someone who linked to movie trailers on their website, but I don't think that went to court. The other kind is where the content on the other site is not just linked to, but presented. This is the case below, with ticketmaster. AFAIK, the most significant court case on deep linking is Ticketmaster v Tickets.com, which was decided in favor of Tickets.com, the deep linker. However, this area is still considered murky at best. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5ykCPt+kM0Mq9M/wRArihAKCzKHtnCie7b/NuIPsOKGeFJ9A4SgCfTTmI 3zsPB0Ja8NBCXE+gTvEIoUM= =56AH -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 12:32:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08039 for dvd-discuss-outgoing; Thu, 21 Sep 2000 12:32:57 -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 MAA08036 for ; Thu, 21 Sep 2000 12:32:56 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 21 Sep 2000 12:33:18 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Date: Thu, 21 Sep 2000 12:33:18 -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 You know, Mr. Pavlovich is in the wrong business. What he should have done is become a dictator of a South American country, and initiated a program of torture and murder. Then, no court would ever have jurisdiction over him. (Can you tell I am feeling a bit cynical today?) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 13:00:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09015 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:00:34 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA09012 for ; Thu, 21 Sep 2000 13:00:33 -0400 Received: from ppp.anonymizer.com (c06-056.015.popsite.net [64.24.77.56]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id KAA29749 for ; Thu, 21 Sep 2000 10:03:52 -0700 (PDT) Message-Id: <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 21 Sep 2000 10:01:23 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-Reply-To: <200009211018.GAA26860@granger.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 06:07 AM 9/21/2000 -0400, John Young wrote: >We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's >appeal of Judge Elfving's denial of his motion to quash the court's >jurisdiction: > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) Nit-pick, and not a criticism of John, but since many here are seeing the process for the first time - and since I need to type something to "wake up" my fingers ;-) - this is *not* an appeal. After a final adverse judgment (Kaplan and 2600), and in a few other situations, a party has an automatic right to have the lower court decision reviewed by an appellate court. The appellate court may not agree with the appellant, but so long as the appeal is timely filed and other procedural rules are met, the appellate court must consider the argument. In contrast, there is no "right" to review by an appellate court of most non-dispositive trial court rulings, including, as here, the denial of the motion to quash service. (It is non-dispositive because Matt could win the case on the merits in the lower court, and if he doesn't, he can raise the jurisdictional issue on an appeal from the final judgment.) You'll note that this is called a Petition for Writ of Mandate, not an appeal, and such petitions, along with some others, fall under the aptly-named category of extraordinary writs, not appeals. The principle difference is that the petitioning party has no right to have the matter heard on the merits by the appellate court, no matter how compelling the argument. It is absolutely, totally, 100% within the discretion of the appellate court whether to hear the Petition, let alone how it may decide it if it does hear it. Year in and year out, California appellate courts issue what used to be called "postcard denials" (before they went to computers and started using full sheets of paper and envelopes) in >90% of writ petitions filed. (Since all they said was "petition denied", with no explanation, a postcard was plenty large enough.) In petitions such as this, the art, and 90% of the battle, is not so much convincing the court that the petitioner is right on the substantive argument, but rather convincing the court why it should do something extraordinary, take the time to hear something it is not required to hear, particularly when (and this is true) the appellate courts are so backlogged as it is. I've not yet read Matt's petition, so I have no comment on it, but since many here seem to have a real interest in learning things about the law (substance and procedure), I thought it worthwhile to give this explanation. And my fingers now are awake. ;-) -------------------------------------------------------------------- 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 Sep 21 13:11:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12653 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:11:18 -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 NAA12650 for ; Thu, 21 Sep 2000 13:11:17 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id LAA17069 for ; Thu, 21 Sep 2000 11:12:41 -0600 Date: Thu, 21 Sep 2000 11:12:41 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Then can we distill it to a short phrase? I'd hate to lose the reader before we get in any shots... On Wed, 20 Sep 2000, Ole Craig wrote: > On 09/20/00 at 14:18, 'twas brillig and John Galt scrobe: > > > > Do we really need a laundry list of the professions of the > > membership? Wouldn't "people" do just as good? If we change the laundry > > list of professions to a single word, we've just chopped a full line > > off... > > Yes, but IMHO we've lost a part of the impact: the fact that > we're a diverse group of people, many/most of whom have in-depth > specialized knowledge relating to a number of the areas that make this > case difficult for the judiciary to rightly apprehend. > > > > 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);' > -- When you are having a bad day, and it seems like everybody is trying to tick you off, remember that it takes 42 muscles to produce a frown, but only 4 muscles to work the trigger of a good sniper rifle. Who is John galt? Galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 13:16:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12841 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:16:12 -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 NAA12838 for ; Thu, 21 Sep 2000 13:16:10 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id LAA17309 for ; Thu, 21 Sep 2000 11:17:35 -0600 Date: Thu, 21 Sep 2000 11:17:35 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: <39C91E32.934A70CB@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 The important thing isn't putting every detail in it, the important thing is to get the Judges to read it and to take it into consideration in their judgement. If that means skipping details for the sake of brevity, let's start skipping. On Wed, 20 Sep 2000, John Schulien wrote: > John Galt writes: > > Do we really need a laundry list of the > > professions of the membership? Wouldn't > > "people" do just as good? If we change > > the laundry list of professions to a single > > word, we've just chopped a full line off... > > Well, the laundry list helps to convey our > collective expertise on technology and > law. Isn't that important? > -- When you are having a bad day, and it seems like everybody is trying to tick you off, remember that it takes 42 muscles to produce a frown, but only 4 muscles to work the trigger of a good sniper rifle. Who is John galt? Galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 13:17:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA12910 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:17:54 -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 NAA12907 for ; Thu, 21 Sep 2000 13:17:51 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id LAA17475 for ; Thu, 21 Sep 2000 11:19:15 -0600 Date: Thu, 21 Sep 2000 11:19:15 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: <4.3.2.7.2.20000920161626.00aa3550@cyberpass.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Okay, so I'm outvoted. Don't say I didn't try...:) On Wed, 20 Sep 2000, James S. Tyre wrote: > At 02:38 PM 9/20/2000 -0700, Bryan Taylor wrote: > > >--- John Schulien wrote: > > > John Galt writes: > > > > Do we really need a laundry list of the > > > > professions of the membership? Wouldn't > > > > "people" do just as good? If we change > > > > the laundry list of professions to a single > > > > word, we've just chopped a full line off... > > > > > > Well, the laundry list helps to convey our > > > collective expertise on technology and > > > law. Isn't that important? > > > >I tend to agree. Actually, I'd add "programmers" into it. I think the > >length is pretty good. It comes in safely under a page, so one line > >doesn't bother me. > > I don't just tend to agree, I insist. ;-) > > The raison d'etre of the statement of interest is to tell the Court who we > are, why we have an interest in the case, and why we have the > qualifications/perspective to do more than just ape what the defense may > say. The copyright law profs who submitted the napster amicus really > didn't need to say much more about who they are than "we're a passelful of > copyright law profs". We do. Odds are the Second Circuit has never seen > the likes of us. > > And as much as I've nagged about length, I wouldn't sweat one line here or > there at this stage. Let's get a draft of the full brief done, which is at > least in the length ballpark, then start editing not only for length but to > pull the document together as a single cohesive writing, not just a bunch > of disjointed sections. It is sometimes easier to edit for length and > content when one sees the full picture, knows what one has to deal with. > > Speaking only for my own writing, my final drafts are shorter than my first > drafts about 90% of the time, even when I'm not fighting a page limit. > > -------------------------------------------------------------------- > 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 > -- When you are having a bad day, and it seems like everybody is trying to tick you off, remember that it takes 42 muscles to produce a frown, but only 4 muscles to work the trigger of a good sniper rifle. Who is John galt? Galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 13:22:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA13027 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:22:11 -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 NAA13024 for ; Thu, 21 Sep 2000 13:22:10 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id LAA17686 for ; Thu, 21 Sep 2000 11:23:35 -0600 Date: Thu, 21 Sep 2000 11:23:35 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Suggested new STATEMENT OF INTEREST In-Reply-To: <20000920200753.E6358@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 Sounds like an appendix or large footnote to me...would the openlaw charter cover it, or should we build a [short] manifesto? On Wed, 20 Sep 2000, Eric Eldred wrote: > On Wed, Sep 20, 2000 at 04:26:17PM -0700, James S. Tyre wrote: > > At 02:38 PM 9/20/2000 -0700, Bryan Taylor wrote: > > > > >--- John Schulien wrote: > > > > John Galt writes: > > > > > Do we really need a laundry list of the > > > > > professions of the membership? Wouldn't > > > > > "people" do just as good? If we change > > > > > the laundry list of professions to a single > > > > > word, we've just chopped a full line off... > > > > > > > > Well, the laundry list helps to convey our > > > > collective expertise on technology and > > > > law. Isn't that important? > > > > > >I tend to agree. Actually, I'd add "programmers" into it. I think the > > >length is pretty good. It comes in safely under a page, so one line > > >doesn't bother me. > > > > I don't just tend to agree, I insist. ;-) > > > > The raison d'etre of the statement of interest is to tell the Court who we > > are, why we have an interest in the case, and why we have the > > qualifications/perspective to do more than just ape what the defense may > > say. The copyright law profs who submitted the napster amicus really > > didn't need to say much more about who they are than "we're a passelful of > > copyright law profs". We do. Odds are the Second Circuit has never seen > > the likes of us. > > Would the circuit judges be interested in the unique OpenLaw > forum that brings us together? I think a little explanation > would intrigue them--isn't it probably the first time they have > encountered such a brief instead of from lawyers, who are > mostly paid for their work? > -- When you are having a bad day, and it seems like everybody is trying to tick you off, remember that it takes 42 muscles to produce a frown, but only 4 muscles to work the trigger of a good sniper rifle. Who is John galt? Galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 13:53:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA13881 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:53:00 -0400 Received: from web513.mail.yahoo.com (web513.mail.yahoo.com [216.115.104.228]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA13878 for ; Thu, 21 Sep 2000 13:52:59 -0400 Message-ID: <20000921175354.13160.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 21 Sep 2000 10:53:54 PDT Date: Thu, 21 Sep 2000 10:53:54 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Status of text conversion of Judiciary Comitee Report To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Did we ever complete the text conversion of the HR 2281 section-by-section analysis in the Judiciary Commitee Report? __________________________________________________ Do You Yahoo!? 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Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 13:57:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA14207 for dvd-discuss-outgoing; Thu, 21 Sep 2000 13:57:42 -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 NAA14203 for ; Thu, 21 Sep 2000 13:57:40 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Thu, 21 Sep 2000 20:56:40 +0200 Message-ID: <39CAB0C4.7885B77C@easybase.com> Date: Thu, 21 Sep 2000 21:07:16 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-9mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial References: <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> 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 NAA14205 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "James S. Tyre" wrote: > At 06:07 AM 9/21/2000 -0400, John Young wrote: > >We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > >appeal of Judge Elfving's denial of his motion to quash the court's > >jurisdiction: > > > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > > The principle difference is that the petitioning party has no right to have > the matter heard on the merits by the appellate court, no matter how > compelling the argument. It is absolutely, totally, 100% within the > discretion of the appellate court whether to hear the Petition, let alone > how it may decide it if it does hear it. Year in and year out, California > appellate courts issue what used to be called "postcard denials" (before > they went to computers and started using full sheets of paper and > envelopes) in >90% of writ petitions filed. (Since all they said was > "petition denied", with no explanation, a postcard was plenty large > enough.) In petitions such as this, the art, and 90% of the battle, is not > so much convincing the court that the petitioner is right on the > substantive argument, but rather convincing the court why it should do > something extraordinary, take the time to hear something it is not required > to hear, particularly when (and this is true) the appellate courts are so > backlogged as it is. > > I've not yet read Matt's petition, so I have no comment on it, but since > many here seem to have a real interest in learning things about the law > (substance and procedure), I thought it worthwhile to give this explanation. > > And my fingers now are awake. ;-) > > -------------------------------------------------------------------- > 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 Does that mean, that in such case that it is better to not defend your case in the lower court, and then appeal on the basis of no jurisdiction, than to spend the resources (of EFF in this case) to defend on merits in lower court, and then you will have to defend on merits of the case in the appealate court? In the former case, you can argue that you could not defend yourself since you are not under jurisdiction, could not have bothered to travel etc.. in the latter, you have already been defending yourself, and thus showed that you have the ability to do so under CA's jurisdiction. Moshe Vainer moshev@easybase.com From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 15:41:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17449 for dvd-discuss-outgoing; Thu, 21 Sep 2000 15:41:06 -0400 Received: from godzilla.monsters.org (root@godzilla.monsters.org [204.180.109.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA17446 for ; Thu, 21 Sep 2000 15:41:03 -0400 Received: from zero.monsters.org (IDENT:root@zero.monsters.org [208.191.248.1]) by godzilla.monsters.org (8.9.3/8.9.3) with ESMTP id OAA29954 for ; Thu, 21 Sep 2000 14:42:26 -0500 Received: from zero.monsters.org (IDENT:sjohnson@localhost [127.0.0.1]) by zero.monsters.org (8.9.3/8.9.3) with ESMTP id OAA07026 for ; Thu, 21 Sep 2000 14:42:26 -0500 Message-Id: <200009211942.OAA07026@zero.monsters.org> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 4C Entity Date: Thu, 21 Sep 2000 14:42:26 -0500 From: Stephen L Johnson Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sep 21, Michael.A.Rolenz(at)aero.org wrote: >"deep linking" is something that I had never heard of before (anyone >else?). I suspect it's one of those "hacker" jargon made up by the press. I >must confess that I really don't understand what their concern is about. >Why should anyone have to plow through advertising to get to anything. >Magazines, books and even the newspapers have indexes and sections why >should an internet site be chained to a linear topology. Hello all. I'm new to the dvd-discuss list. But I have been reading the list archives for many weeks. All of the DeCSS cases have become an addiction. Hopefully I can make some small contribution to the discussion. "deep linking" is not what I would deem a "hacker" term. It's a new term given to a web site development pratice that really didn't need a name before now. The best techinical definition would be creating a hyperlink on a web page that points to an off-site web page that is not the home page of the internet site, i.e. (any off-site link that isn't http://some-company.com, http:// www.some-site.org/index.html, and so forth.) The funny thing is I don't see why some companies are creating a bit stink or filing suit over it. In almost all cases, it is technical possible to prevent any "deep linking". The web browsers can redirect any "deep link" accesses to their site front page. This is possible because web browsers send a "Referral" header as a part of web access requests when a hyperlink is selected from a web page. The "Referral" header is the URL of the web page where the hyperlink was present. The web servers can be configured/programmed to look at the "Referral" header of a request. The web server can send redirect the browser to the site's front page if the "Referral" URL was not from soem where on their site. Stephen L Johnson sjohnson@monsters.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 15:56:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18013 for dvd-discuss-outgoing; Thu, 21 Sep 2000 15:56:17 -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 PAA18010 for ; Thu, 21 Sep 2000 15:56:05 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA07668 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 15:58:12 -0400 Date: Thu, 21 Sep 2000 15:58:07 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000921155807.E7490@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, Sep 21, 2000 at 12:33:18PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 12:33:18PM -0400, Leland Ray wrote: > > You know, Mr. Pavlovich is in the wrong business. What he > should have done is become a dictator of a South American > country, and initiated a program of torture and murder. > Then, no court would ever have jurisdiction over him. > > > (Can you tell I am feeling a bit cynical today?) Yes. But it might not be too silly to suggest that Matt watch his step. The U.S. government has made a practice of kidnapping people in foreign countries and jailing them in U.S. local jurisdictions for trial. Should Matt ask Governor Bush for protection by the Texas Rangers against California agents? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 16:27:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19249 for dvd-discuss-outgoing; Thu, 21 Sep 2000 16:27:51 -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 QAA19230 for ; Thu, 21 Sep 2000 16:27:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA07743 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 16:29:41 -0400 Date: Thu, 21 Sep 2000 16:29:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000921162936.G7490@eldritchpress.org> References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39CA534D.661FDF35@easybase.com>; from moshev@easybase.com on Thu, Sep 21, 2000 at 02:28:30PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 02:28:30PM -0400, Moshe Vainer wrote: > John Young wrote: > > > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > > appeal of Judge Elfving's denial of his motion to quash the court's > > jurisdiction: > > > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) This seems to be related, strangely, to the SDNY case. from Exhibit F, REPORTER'S TRANSCRIPT OF PROCEEDINGS 18 HELD ON AUGUST 29,2000 8... 12 I'D ALSO TAKE ISSUE WITH THE PORTRAYAL OF 13 MR. PAVOLICH BY COUNSEL. HE IS MUCH MORE THAN A 14 TWENTY-TWO YEAR OLD FORMER STUDENT, EAGLE SCOUT. HE 15 IS A LEADER IN THE OPEN SOURCE MOVEMENT. My, my, if he is in the "OPEN SOURCE MOVEMENT" and a leader, he must be very dangerous! So are we all. The courts definitely need a great deal of education on "Open Source" and "Free Software," else the other side will falsely characterize us. 10 ... HERE, WE HAVE ESTABLISHED SIGNIFICANTLY 14 THAT THE EFFECT IS DIRECTLY AT THE MOTION PICTURE 15 INDUSTRY IN CALIFORNIA, THE SOFTWARE INDUSTRY IN 16 CALIFORNIA, THE COMPUTER INDUSTRY IN CALIFORNIA, 17 MUCH OF WHICH IS NOT ONLY IN CALIFORNIA, BUT RIGHT 18 HERE IN THIS COUNTY. Although Matt might be aware of Hollywood, in fact, movies are mostly made now in places like Toronto--and certainly not in Silicon Valley. Then we have 19 AS YOU MAY WELL KNOW, YOUR HONOR, ON 20 AUGUST 17TH, JUDGE KAPLAN DECIDED THE NEW YORK 21 CASE. ONE OF THE ARGUMENTS THAT THE DEFENDANT HERE 22 MAKES IS THAT THERE'S NO EFFECT IN CALIFORNIA 23 BECAUSE THERE'S BEEN NO DEMONSTRATION THAT ANY 24 PIRACY INFRINGEMENT HAS TAKEN PLACE IN CALIFORNIA. 25 THAT ARGUMENT WAS MADE TO JUDGE KAPLAN IN THE 26 SOUTHERN DISTRICT CASE AND HE REJECTED IT. 27 HE REFERRED TO AT LEAST ONE WEB SITE WHICH 28 CONTAINED A LIST OF SIX HUNDRED FIFTY MOTION 11 1 PICTURES, SAID TO HAVE BEEN DECRYPTED AND COMPRESSED 2 WITH DIVEX, THAT PURPORTEDLY ARE AVAILABLE FOR SALE, 3 TRADE OR FREE DOWNLOAD. 4 HE CONCLUDED-- AND I QUOTE FROM THE CITE 5 TO THE -- THE WEST LAW CITE TO THAT OPINION IS 2000 6 WEST LAW, 116068, AT PAGE 9 OF THAT OPINION, JUDGE 7 KAPLAN SAYS, QUOTE, WHILE NOT EVERYONE WITH INTERNET 8 ACCESS NOW WILL FIND IT CONVENIENT TO SEND OR 9 RECEIVE DIVEX COPIES OF PIRATED MOTION PICTURES OVER 10 THE INTERNET, THE AVAILABILITY OF HIGH SPEED NETWORK 11 CONNECTIONS AND MANY BUSINESSES AND INSTITUTIONS AND 12 THEIR GROWING AVAILABILITY IN HOMES MAKE INTERNET 13 AND OTHER NETWORK TRAFFICKING PIRATED COPIES A 14 GROWING THREAT. My, first we have hearsay evidence submitted as a legal determination. Then we have copyright law being used to suppress publication simply because the future publication might be a "threat"--not to copyrighted works--but to a trade secret, stated to have been revealed via reverse engineering. And Kaplan's decision being used to conclude that since there is a threat from the Internet, the whole Internet can be shut down. 12 I WILL CLOSE, YOUR HONOR, WITH ONE -- 14 JUDGE KAPLAN'S FINAL COMMENTS IN HIS OPINION. I 15 SUBMIT IT'S QUITE RELEVANT TO WHETHER IT'S EQUITABLE 16 THAT MR. PAVOLICH BE REQUIRED TO ANSWER HERE. 17 JUDGE KAPLAN SAID, QUOTE, IN SHORT, THIS 18 COURT, LIKE OTHERS THAT HAVE FACED THIS ISSUE, IS 19 NOT PERSUADED THAT MODERN TECHNOLOGY HAS WITHERED 20 THE STRONG RIGHT ARM OF EQUITY. INDEED, THE 21 LIKELIHOOD IS THAT THIS DECISION WILL SERVE NOTICE 22 ON OTHERS THAT THE, QUOTE, STRONG RIGHT ARM OF 23 EQUITY, CLOSE QUOTE, MAY BE BROUGHT TO BEAR AGAINST 24 THEM ABSENT A CHANGE IN THEIR CONDUCT AND THUS 25 CONTRIBUTE TO A CLIMATE OF RESPECT TO INTELLECTUAL 26 PROPERTIES. READY ACCESS TO UNTOLD QUANTITIES OF 27 INFORMATION HAS BLURRED IN SOME MINDS THE FACT THAT 28 TAKING WHAT IS NOT YOURS AND NOT FREELY OFFERED TO 13 1 YOU IS STEALING. 2 THE DEFENDANTS, YOUR HONOR, IF THE 3 DEFENDANTS WISH TO AVAIL THEMSELVES OF MODERN 4 TECHNOLOGY TO TAKE WHAT WE CLAIM IS NOT THEIRS, THEY 5 SHOULD BE REQUIRED TO ANSWER IN THIS COURT IN THIS 6 STATE WHERE THAT TAKING HAS HAD THE GREATEST EFFECT. The state where the taking has had the greatest effect is no doubt the People's Republic of China. Maybe we could get a better trial there. Note that the "intellectual property" at issue here has shifted from that which belongs to copyright owners--the movie studios--to the trade secrets claimed by DVD CCA. They are asking the government to apply the same laws and enforcement to trade secret information as is done to copyrighted information. And they do this on the grounds that the "open source movement" is "stealing" their "intellectual property." Yet they do not actually wish to publish the secret information, nor submit to the "limited times" of copyright law. Who is stealing what? The courts need to be educated about technology. But they first need to attempt to resist being intimidated by this "technology" smokescreen, and patiently examine the facts and logic as any judge can. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 16:57:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19993 for dvd-discuss-outgoing; Thu, 21 Sep 2000 16:57:08 -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 QAA19990 for ; Thu, 21 Sep 2000 16:57:05 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 21 Sep 2000 22:51:30 +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; Thu, 21 Sep 2000 22:34:25 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 21 Sep 2000 22:34:25 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000921223425.B309@lemuria.org> References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39CA534D.661FDF35@easybase.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 Moshe Vainer wrote: > I am not familiar with law, and especially with US law, but if this decision is a norm, > shouldn't the state at which the defendant is resident, come forward and protect > it's citizens from harassment lawsuits from outside the jurisdiction?. I mean if > this same court decides to impose fines on Jon Johansen, wouldn't Norway be in position > to defend it's citizen? Isn't it the same with different states within the US? it most likely is. for example, germany has a law in what is our equivalent to the constitution (i.e. a "top" law) that no german citizen will ever be handed over to foreign authorities. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 16:57:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19986 for dvd-discuss-outgoing; Thu, 21 Sep 2000 16:57:04 -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 QAA19982 for ; Thu, 21 Sep 2000 16:57:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Thu, 21 Sep 2000 22:51:30 +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; Thu, 21 Sep 2000 22:32:17 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Thu, 21 Sep 2000 22:32:17 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000921223217.A309@lemuria.org> References: <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> <39CAB0C4.7885B77C@easybase.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39CAB0C4.7885B77C@easybase.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 Moshe Vainer wrote: > and then appeal on the basis of no jurisdiction, than to spend the resources (of EFF in > this case) nitpicking: matt is paying this part out of his own pocket. I'm supporting him financially, since me being a german makes me quite interested in whether or not a district court in CA believes it has any authority over me. if you have some spare change, contact matt to find out how you can send it to him. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 17:24:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA20827 for dvd-discuss-outgoing; Thu, 21 Sep 2000 17:24:57 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA20824 for ; Thu, 21 Sep 2000 17:24:55 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 14:26:01 -0700 Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 14:26:00 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 02:26:00 PM MIME-Version: 1.0 Content-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 wouldn't put any money on George of the Bushes Junior calling out the Texas Rangers Eric Eldred To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Pavlovich Appeal of arvard.edu Quash Motion Denial 09/21/00 01:00 PM Please respond to dvd-discuss On Thu, Sep 21, 2000 at 12:33:18PM -0400, Leland Ray wrote: > > You know, Mr. Pavlovich is in the wrong business. What he > should have done is become a dictator of a South American > country, and initiated a program of torture and murder. > Then, no court would ever have jurisdiction over him. > > > (Can you tell I am feeling a bit cynical today?) Yes. But it might not be too silly to suggest that Matt watch his step. The U.S. government has made a practice of kidnapping people in foreign countries and jailing them in U.S. local jurisdictions for trial. Should Matt ask Governor Bush for protection by the Texas Rangers against California agents? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 17:26:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA20952 for dvd-discuss-outgoing; Thu, 21 Sep 2000 17:26:55 -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 RAA20947 for ; Thu, 21 Sep 2000 17:26:54 -0400 Message-ID: <20000921212749.17122.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 21 Sep 2000 14:27:49 PDT Date: Thu, 21 Sep 2000 14:27:49 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Draft of part IV on 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 I offer for your reading pleasure 99 lines explaining why Kaplan should be reversed on reverse engineering: Numbered: http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_IV_numbered.txt Unnumbered: http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_IV.txt __________________________________________________ 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 Sep 21 17:34:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21256 for dvd-discuss-outgoing; Thu, 21 Sep 2000 17:34:39 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21253 for ; Thu, 21 Sep 2000 17:34:37 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 14:35:24 -0700 Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 14:35:21 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 02:35:24 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu eldred@eldritchpress.org wrote The state where the taking has had the greatest effect is no doubt the People's Republic of China. Maybe we could get a better trial there. ...Not a problem....no trial is needed since the Chinese don't HAVE intellectual property laws....or don't really enforce what they do have. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 17:56:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21934 for dvd-discuss-outgoing; Thu, 21 Sep 2000 17:56:40 -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 RAA21931 for ; Thu, 21 Sep 2000 17:56:38 -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 QAA08511 for ; Thu, 21 Sep 2000 16:58:04 -0500 (CDT) Message-ID: <39CA8464.1722206A@uic.edu> Date: Thu, 21 Sep 2000 16:57:57 -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] Draft of part IV on Reverse Engineering 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 > 70 ... DVD movie files use both compression and > 71 navigation programming, so §117 also allows installation of the DVD movie > 72 programs. Now this is interesting. Following the logic, because a DVD datastream is a *program*, you actually do have the right to do anything with a DVD disc that you would have the right to do with a computer program, including copy it to your hard drive if that's what it takes to use it. > Sec. 117. Limitations on exclusive rights: Computer programs > (a) Making of Additional Copy or Adaptation by Owner of Copy. - > Notwithstanding the provisions of section 106, it is not an > infringement for the owner of a copy of a computer program > to make or authorize the making of another copy or adaptation > of that computer program provided: > (1) that such a new copy or adaptation is created as an > essential step in the utilization of the computer program in > conjunction with a machine and that it is used in no other > manner, or ... It might be useful to be able to produce a demonstration that an MPEG data stream is actually a program. I don't know much about the MPEG file format, but is there an "instruction set" with instructions like, "clear screen", "draw a block at this location in this color", etc? Are there such things as human readable mpeg "programs" that can be compiled into an MPEG data stream? I'm thinking of a short program that would perhaps draw a box on the screen. Something simple enough that it could be explained to a layman. If it can be established that an MPEG data stream is actually a program and not data, then DeCSS provides the "essential step" of copying the "program" from the (at the time) unsupported UDF filesystem into a Linux-supported Windows filesystem, so that the Linux-based display software can run the "program", whose output is a continually changing picture. Then, at least the personal USE of DeCSS should be fully protected by Sec. 117, because DeCSS would be recast as a "program loader" or "program backup utility." From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 18:02:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22137 for dvd-discuss-outgoing; Thu, 21 Sep 2000 18:02:02 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA22133 for ; Thu, 21 Sep 2000 18:01:56 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 15:01:38 -0700 Subject: Re: [dvd-discuss] 4C Entity To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 15:01:36 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 03:01:37 PM MIME-Version: 1.0 Content-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 don't see what the big stink is either. My attitude with so much of the case I've seen recently (TM v T.Com, deep linking, DeCSS etc) is "either get smart or get off the internet but DON"T clog the courts with this nonsense".... BTW- When I read the TicketMaster Vs. T.COm case I was struck by the fact that TM didn't think to intercept T.Com's webcrawler and either reject it or send back bad info for them to post on their site. The latter would make a VERY amusing court case.....truly information warfare. Stephen L Johnson To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] 4C Entity arvard.edu 09/21/00 12:47 PM Please respond to dvd-discuss On Sep 21, Michael.A.Rolenz(at)aero.org wrote: >"deep linking" is something that I had never heard of before (anyone >else?). I suspect it's one of those "hacker" jargon made up by the press. I >must confess that I really don't understand what their concern is about. >Why should anyone have to plow through advertising to get to anything. >Magazines, books and even the newspapers have indexes and sections why >should an internet site be chained to a linear topology. Hello all. I'm new to the dvd-discuss list. But I have been reading the list archives for many weeks. All of the DeCSS cases have become an addiction. Hopefully I can make some small contribution to the discussion. "deep linking" is not what I would deem a "hacker" term. It's a new term given to a web site development pratice that really didn't need a name before now. The best techinical definition would be creating a hyperlink on a web page that points to an off-site web page that is not the home page of the internet site, i.e. (any off-site link that isn't http://some-company.com, http:// www.some-site.org/index.html, and so forth.) The funny thing is I don't see why some companies are creating a bit stink or filing suit over it. In almost all cases, it is technical possible to prevent any "deep linking". The web browsers can redirect any "deep link" accesses to their site front page. This is possible because web browsers send a "Referral" header as a part of web access requests when a hyperlink is selected from a web page. The "Referral" header is the URL of the web page where the hyperlink was present. The web servers can be configured/programmed to look at the "Referral" header of a request. The web server can send redirect the browser to the site's front page if the "Referral" URL was not from soem where on their site. Stephen L Johnson sjohnson@monsters.org From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 18:12:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22368 for dvd-discuss-outgoing; Thu, 21 Sep 2000 18:12:50 -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 SAA22365 for ; Thu, 21 Sep 2000 18:12:49 -0400 Received: from localhost (sterno@localhost) by bigbrother.net (8.11.0/8.11.0) with ESMTP id e8LMEGD11280 for ; Thu, 21 Sep 2000 17:14:16 -0500 Date: Thu, 21 Sep 2000 17:14:14 -0500 (CDT) From: Steve Stearns To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 4C Entity 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, 21 Sep 2000 Michael.A.Rolenz@aero.org wrote: > BTW- When I read the TicketMaster Vs. T.COm case I was struck by the fact > that TM didn't think to intercept T.Com's webcrawler and either reject it > or send back bad info for them to post on their site. The latter would make > a VERY amusing court case.....truly information warfare. I suspect this is the way these companies are going to eventually have to go if they want to defend themselves. They can file lawsuits all day, but they'll never keep up with the threats. Another good example of this issue was what Bare Naked Ladies did to Napster. Rather than suing to keep their music off of their, they just flooded the system with MP3's the looked like their songs but turned out to be advertisments. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 18:25:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22728 for dvd-discuss-outgoing; Thu, 21 Sep 2000 18:25:08 -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 SAA22725 for ; Thu, 21 Sep 2000 18:25:07 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Thu, 21 Sep 2000 18:25:30 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Draft of part IV on Reverse Engineering Date: Thu, 21 Sep 2000 18:25:29 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="ISO-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is pretty good, but one thing confuses me. We are arguing that DeCSS was created for Linux systems. While there is not a problem with that argument, should not it also be mentioned that the presence of DeCSS source allows for more competing players on all platforms? The fact that a license player exists on a platform should in no way affect the development of other players. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 18:28:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA22859 for dvd-discuss-outgoing; Thu, 21 Sep 2000 18:28:03 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA22856 for ; Thu, 21 Sep 2000 18:28:01 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 15:28:46 -0700 Subject: Re: [dvd-discuss] 4C Entity To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Thu, 21 Sep 2000 15:28:44 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/21/2000 03:28:46 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That works. Rather than making a new (STUPID) law or clogging the courts people should just get creative about solving their problems. Steve Stearns cc: Sent by: Subject: Re: [dvd-discuss] 4C Entity owner-dvd-discuss@eon.law.h arvard.edu 09/21/00 03:15 PM Please respond to dvd-discuss On Thu, 21 Sep 2000 Michael.A.Rolenz@aero.org wrote: > BTW- When I read the TicketMaster Vs. T.COm case I was struck by the fact > that TM didn't think to intercept T.Com's webcrawler and either reject it > or send back bad info for them to post on their site. The latter would make > a VERY amusing court case.....truly information warfare. I suspect this is the way these companies are going to eventually have to go if they want to defend themselves. They can file lawsuits all day, but they'll never keep up with the threats. Another good example of this issue was what Bare Naked Ladies did to Napster. Rather than suing to keep their music off of their, they just flooded the system with MP3's the looked like their songs but turned out to be advertisments. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 19:57:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24546 for dvd-discuss-outgoing; Thu, 21 Sep 2000 19:57:54 -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 TAA24527 for ; Thu, 21 Sep 2000 19:57:41 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA08046 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 19:59:50 -0400 Date: Thu, 21 Sep 2000 19:59:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000921195945.H7490@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Thu, Sep 21, 2000 at 02:26:00PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 02:26:00PM -0700, Michael.A.Rolenz@aero.org wrote: > > I wouldn't put any money on George of the Bushes Junior calling out the > Texas Rangers I think somebody is trying to make a movie out of reality here, and it's not us. Have you noticed that criminals really do learn to talk just like their counterparts on tv? > On Thu, Sep 21, 2000 at 12:33:18PM -0400, Leland Ray wrote: > > > > You know, Mr. Pavlovich is in the wrong business. What he > > should have done is become a dictator of a South American > > country, and initiated a program of torture and murder. > > Then, no court would ever have jurisdiction over him. > > > > > > (Can you tell I am feeling a bit cynical today?) > > Yes. > > But it might not be too silly to suggest that Matt watch > his step. The U.S. government has made a practice of > kidnapping people in foreign countries and jailing them > in U.S. local jurisdictions for trial. Should Matt ask > Governor Bush for protection by the Texas Rangers against > California agents? From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 20:01:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24782 for dvd-discuss-outgoing; Thu, 21 Sep 2000 20:01:57 -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 UAA24763 for ; Thu, 21 Sep 2000 20:01:45 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA08061 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 20:03:53 -0400 Date: Thu, 21 Sep 2000 20:03:48 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 4C Entity Message-ID: <20000921200348.I7490@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sterno@gemini.bigbrother.net on Thu, Sep 21, 2000 at 05:14:14PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 05:14:14PM -0500, Steve Stearns wrote: > > On Thu, 21 Sep 2000 Michael.A.Rolenz@aero.org wrote: > > > BTW- When I read the TicketMaster Vs. T.COm case I was struck by the fact > > that TM didn't think to intercept T.Com's webcrawler and either reject it > > or send back bad info for them to post on their site. The latter would make > > a VERY amusing court case.....truly information warfare. > > I suspect this is the way these companies are going to eventually have to > go if they want to defend themselves. They can file lawsuits all day, but > they'll never keep up with the threats. Another good example of this > issue was what Bare Naked Ladies did to Napster. Rather than suing to > keep their music off of their, they just flooded the system with MP3's the > looked like their songs but turned out to be advertisments. The problem with that is, the recording industry is desperately trying to find a way to make money on mp3s over the internet. For example, they try to buy out MP3.com or scour.net. Essentially, it's not so much that Napster should be illegal, but it should be illegal for people to share without the recording industry making a profit on their sharing. No doubt they will fine tune the ads on their "legitimate" content and then the fake MP3s will be "copyright infringement" and banned. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 20:43:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25661 for dvd-discuss-outgoing; Thu, 21 Sep 2000 20:43:29 -0400 Received: from rgate4.ricochet.net ([204.179.143.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA25658 for ; Thu, 21 Sep 2000 20:43:28 -0400 Received: from shannon (mg-206253202-1.ricochet.net [206.253.202.1]) by rgate4.ricochet.net (8.9.3/8.9.3) with SMTP id TAA09676 for ; Thu, 21 Sep 2000 19:48:03 -0500 (CDT) From: "John Dempsey" To: Subject: [dvd-discuss] Deep linking Date: Thu, 21 Sep 2000 17:48:20 -0700 Message-ID: <000001c0242e$cdda3860$0200a8c0@shannon> MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook 8.5, Build 4.71.2173.0 Importance: Normal In-Reply-To: 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 > Actually, I should have said that I hadn't heard of 'deep linking" before > Kaplan mentioned it earlier in the year. It's my understanding that a web site can prevent deep linking. At least I am aware of enough information coming to the server to determine the page that linked the user to the current page. With this a site can block people not using the front door. So I don't understand how this can reach litigation. John From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 21:18:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA26352 for dvd-discuss-outgoing; Thu, 21 Sep 2000 21:18:12 -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 VAA26349 for ; Thu, 21 Sep 2000 21:17:56 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id VAA08178 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 21:20:05 -0400 Date: Thu, 21 Sep 2000 21:20:00 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000921212000.K7490@eldritchpress.org> References: <20000921212749.17122.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000921212749.17122.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Sep 21, 2000 at 02:27:49PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 02:27:49PM -0700, Bryan Taylor wrote: > I offer for your reading pleasure 99 lines explaining why Kaplan should > be reversed on reverse engineering: > > Numbered: > http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_IV_numbered.txt Let's talk about adding before cutting. In IV we need to explain what reverse engineering is, and what it was in this case. I'll divide the paragraphs to make it easier to edit. Feel free to demolish this as it's just off the top of my head. We need to structure all of the logic and add citations later. If you want to add or subtract or rewrite anything, please quote the whole thing. Reverse engineering is a practice, widely accepted among engineers in computer technology as well as many other fields, to take apart a program or device, in order to figure out how it works. The resulting information can then be used to build another product that does much the same thing. Sometimes the product is copyrighted or patented by a competitor but sometimes it is just considered to be an unpublished trade secret (as CSS is here). In other cases, reverse engineering may be necessary when a company or individual owns a product and needs to have it run on another machine not supported by the suppplier (compatibility purpose). A more recent, and important, use of reverse engineering is to perform a security analysis on software in order to discover its weaknesses and faults, for example how the consumer might be endangered by the product. In all these cases, reverse engineering--and the fruits of reverse engineering--have been upheld as legal [Sega v Accolade, Uniform Trade Secret Act]. Technology experts such as the ACM worked hard to include this exemption in the DMCA--it was meant to cover just these cases of normal engineering practice [legislative history of DMCA]. In the instant case, reverse engineering of CSS was performed [when?] by unknown persons [MoRE?], possibly in Europe, where laws specifically protect reverse engineering [deposition of Norwegian expert]. There has been no testimony that CSS code was "stolen" by industrial espionage or other "improper means." And the Uniform Trade Secrets Act confirms that reverse engineering alone is not sufficent to prove "improper means." Once it has been established that improper means were not used to perform the revelation, then there can be no violation of trade secrets and no "theft" of intellectual property. The transmittal of the fruits of reverse engineering has always been considered legal. In the case of reverse engineering for security analysis, testimony established that publishing the results of the analysis were important to correct security problems. Defendants were not the first to publish the fruits of reverse engineering of CSS. DVD CCA had time to correct the problem, but refused to do so, preferring to ask the courts to protect their broken technology. But DeCSS and LiViD never threatened their technology. Their technology, CSS, is not covered by copyright nor patent. Here MPAA asks the court to protect DVD CCA's trade secrets by means of a copyright law--and to do so without their ever having to prove any infringement or violation of trade secrets, but instead by using DMCA as a proxy. DeCSS in conjuction with LiViD were meant solely to provide a way for Linux users to play DVDs--that they had purchased from plaintiffs--on their own machines. Court's refusal to allow publication of the fruits of reverse engineering of CSS is supported neither by statute nor the Constitution. Prior restraint of publication of these fruits--which are under a new copyright--is in violation of the First Amendment, which states Congress can pass "no law" that restricts freedom of speech or freedom of press. ....most of "A" goes here. Under "B", the statute provides several reasons for reverse engineering, among them "compatibility." Testimony showed that reverse engineering for purposes of security analysis was an important engineering practice and that such occurred in this case. Court erred in finding that "These defendants, however, did not post DeCSS 'solely' to achieve interoperability with Linux or anything else" (p37). Under O'Brien scrutiny analysis, there is no good governmental purpose in so restricting interpretation of the statute to 'solely' here. To do so would only encourage companies to cover up bad engineering and the public would be subjected to even more security problems. ...."C" goes here Even if court was correct in denying the 1202(f) exclusion for reverse engineering in this case, because DeCSS originally ran on Microsoft Windows, court falsely concludes from this fact that DeCSS was meant to serve in some chain of illegally "copying" the copyrighted content. Many other necessary parts of the putative "copying" chain are overlooked by plaintiffs, including many other operating system programs that have obviously important legal reasons. Court ignored testimony that if such copying occurred, it was only for compatibility purposes--to play a legally acquired, and therefore "authorized" DVD, on a legally acquired, and thus "authorized" player, on a legally acquired, and thus "authorized," computer system--whether that be Windows or Linux. MPAA and DVD CCA do not have the right--and should not be granted a new right by courts--to prevent an authorized user from making fair use of a legally acquired copy of a work, for example to make an archival copy [Vault v Quaid, Universal v Sony, legislative history]. Insofar as DeCSS is a copyrighted program legally acquired by users as fruit of reverse engineering, and is exempted by DMCA under 1201(f) as such, courts should not violate the Constitution and First Amendment by prior restraint of publication of DeCSS. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 21:49:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27354 for dvd-discuss-outgoing; Thu, 21 Sep 2000 21:49:05 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA27351 for ; Thu, 21 Sep 2000 21:49:02 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA05553 for ; Thu, 21 Sep 2000 21:50:28 -0400 (EDT) Message-ID: <39CABAE3.47DDA594@mediaone.net> Date: Thu, 21 Sep 2000 21:50:27 -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] Draft of part IV on Reverse Engineering References: <20000921212749.17122.qmail@web514.mail.yahoo.com> <20000921212000.K7490@eldritchpress.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > > On Thu, Sep 21, 2000 at 02:27:49PM -0700, Bryan Taylor wrote: > > I offer for your reading pleasure 99 lines explaining why Kaplan should > > be reversed on reverse engineering: > > > > Numbered: > > http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_IV_numbered.txt > > Let's talk about adding before cutting. > > In IV we need to explain what reverse engineering is, and what > it was in this case. I'll divide the paragraphs to make it > easier to edit. Feel free to demolish this as it's just > off the top of my head. We need to structure all of the logic > and add citations later. If you want to add or subtract > or rewrite anything, please quote the whole thing. > > Reverse engineering is a practice, widely accepted among > engineers in computer technology as well as many other > fields, to take apart a program or device, in order to > figure out how it works. Also inspect, or observe. A lot can be learned "non destructively". > > The resulting information can > then be used to build another product that does much the > same thing. Or something very different. RE is a means, not an end. > Sometimes the product is copyrighted or > patented by a competitor but sometimes it is just > considered to be an unpublished trade secret (as CSS > is here). > > In other cases, reverse engineering may be > necessary when a company or individual owns a product > and needs to have it run on another machine not supported > by the suppplier (compatibility purpose). Or the supplier no longer exists. > A more recent, > and important, use of reverse engineering is to perform > a security analysis on software in order to discover its > weaknesses and faults, for example how the consumer might > be endangered by the product. > > In all these cases, reverse > engineering--and the fruits of reverse engineering--have been > upheld as legal [Sega v Accolade, Uniform Trade Secret Act]. > > Technology experts such as the ACM worked hard to include > this exemption in the DMCA--it was meant to cover just these cases of > normal engineering practice [legislative history of DMCA]. > > In the instant case, reverse engineering of CSS was performed > [when?] by unknown persons [MoRE?], possibly in Europe, where laws > specifically protect reverse engineering [deposition of > Norwegian expert]. > > There has been no testimony that CSS > code was "stolen" by industrial espionage or other "improper > means." > > And the Uniform Trade Secrets Act confirms that > reverse engineering alone is not sufficent to prove "improper > means." > > Once it has been established that improper means were > not used to perform the revelation, then there can be no violation > of trade secrets and no "theft" of intellectual property. Although I'd assume that RE is an affirmative defense, I bet that trade secret law requires the plaintiff prove that something other than simple RE was used. > The transmittal of the fruits of reverse engineering has always > been considered legal. > > In the case of reverse engineering for > security analysis, testimony established that publishing the > results of the analysis were important to correct security > problems. > > Defendants were not the first to publish the fruits > of reverse engineering of CSS. > > DVD CCA had time to correct the > problem, but refused to do so, preferring to ask the courts to > protect their broken technology. > > But DeCSS and LiViD never threatened their technology. > > Their technology, CSS, is not covered by copyright nor patent. > > Here MPAA asks the court to protect DVD CCA's trade secrets by means > of a copyright law--and to do so without their ever having to > prove any infringement or violation of trade secrets, but instead > by using DMCA as a proxy. > > DeCSS in conjuction with LiViD were meant solely to provide a way for Linux > users to play DVDs--that they had purchased from plaintiffs--on > their own machines. > > Court's refusal to allow publication of the fruits of reverse > engineering of CSS is supported neither by statute nor the > Constitution. > > Prior restraint of publication of these fruits--which are under > a new copyright--is in violation of the First Amendment, which > states Congress can pass "no law" that restricts freedom of > speech or freedom of press. > > ....most of "A" goes here. > > Under "B", the statute provides several reasons for reverse > engineering, among them "compatibility." > > Testimony showed that reverse engineering for purposes of > security analysis was an important engineering practice and > that such occurred in this case. > > Court erred in finding that "These defendants, however, did > not post DeCSS 'solely' to achieve interoperability with Linux > or anything else" > (p37). > > Under O'Brien scrutiny analysis, there is no good governmental > purpose in so restricting interpretation of the statute to > 'solely' here. > > To do so would only encourage companies to cover up bad engineering > and the public would be subjected to even more security problems. > > ...."C" goes here > > Even if court was correct in denying the 1202(f) exclusion > for reverse engineering in this case, because DeCSS originally > ran on Microsoft Windows, court falsely concludes from this fact > that DeCSS was meant to serve in some chain of illegally "copying" > the copyrighted content. > > Many other necessary parts of the putative "copying" chain are overlooked by > plaintiffs, including many other operating system programs that > have obviously important legal reasons. > > Court ignored testimony that if such copying occurred, it was > only for compatibility purposes--to play a legally acquired, and > therefore "authorized" DVD, on a legally acquired, and thus > "authorized" player, on a legally acquired, and thus "authorized," > computer system--whether that be Windows or Linux. > > MPAA and DVD CCA do not have the right--and should not be granted > a new right by courts--to prevent an authorized user from making > fair use of a legally acquired copy of a work, for example to > make an archival copy [Vault v Quaid, Universal v Sony, legislative > history]. I'd suggest using an example of watching selected portions rather any mentioning any type of copying. > > Insofar as DeCSS is a copyrighted program legally acquired by > users as fruit of reverse engineering, and is exempted by DMCA > under 1201(f) as such, courts should not violate the Constitution > and First Amendment by prior restraint of publication of DeCSS. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 22:01:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA27746 for dvd-discuss-outgoing; Thu, 21 Sep 2000 22:01:49 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA27743 for ; Thu, 21 Sep 2000 22:01:43 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA12262 for ; Thu, 21 Sep 2000 22:03:05 -0400 (EDT) Message-ID: <39CABDD9.F1E390B2@mediaone.net> Date: Thu, 21 Sep 2000 22:03:05 -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] Pavlovich Appeal of Quash Motion Denial References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921162936.G7490@eldritchpress.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > > On Thu, Sep 21, 2000 at 02:28:30PM -0400, Moshe Vainer wrote: > > John Young wrote: > > > > > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > > > appeal of Judge Elfving's denial of his motion to quash the court's > > > jurisdiction: > > > > > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > > This seems to be related, strangely, to the SDNY case. > > from Exhibit F, REPORTER'S TRANSCRIPT OF PROCEEDINGS > > 18 HELD ON AUGUST 29,2000 > > 8... > > 12 I'D ALSO TAKE ISSUE WITH THE PORTRAYAL OF > > 13 MR. PAVOLICH BY COUNSEL. HE IS MUCH MORE THAN A > > 14 TWENTY-TWO YEAR OLD FORMER STUDENT, EAGLE SCOUT. HE > > 15 IS A LEADER IN THE OPEN SOURCE MOVEMENT. > > My, my, if he is in the "OPEN SOURCE MOVEMENT" and a > leader, he must be very dangerous! So are we all. > The courts definitely need a great deal of education > on "Open Source" and "Free Software," else the other > side will falsely characterize us. ... I don't know about the courts, but we should work on getting the word out about the MPAA's characterization of the Open Source community to the software industry. For the most part individual software engineers have a lot of discretion about which customer reported bugs they put the most work into. If the engineers are not happy with the movie studios then the movie studios might find their software doesn't work quite as well as they'd like. Their profit margins will suffer, and they won't have so much money available to spend on subjugating people who don't tow the line. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 22:10:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28030 for dvd-discuss-outgoing; Thu, 21 Sep 2000 22:10:44 -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 WAA28011 for ; Thu, 21 Sep 2000 22:10:32 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA08296 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 22:12:43 -0400 Date: Thu, 21 Sep 2000 22:12:33 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000921221233.A8282@eldritchpress.org> References: <20000921212749.17122.qmail@web514.mail.yahoo.com> <20000921212000.K7490@eldritchpress.org> <39CABAE3.47DDA594@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39CABAE3.47DDA594@mediaone.net>; from sphere1952@mediaone.net on Thu, Sep 21, 2000 at 09:50:27PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 09:50:27PM -0400, Sphere wrote: > I've put the edited sentences outside the > > . > > > > The resulting information can > > then be used to build another product that does much the > > same thing. > > > Or something very different. RE is a means, not an > end. good...-> The resulting information can then be used to build another product that does much the same thing, or even something entirely different but better. > Or the supplier no longer exists. > good...-> In other cases, reverse engineering may be necessary when a company or individual owns a copy of a product and needs to have it run on another machine not supported by the suppplier, or where the supplier has gone out of business (compatibility purpose). > Although I'd assume that RE is an affirmative defense, > I bet that trade secret law requires the plaintiff > prove that something other than simple RE was used. -> The burden is on plaintiff to prove that improper means were used--once it has been established that improper means were not used to perform the revelation, then there can be no violation of trade secrets and no "theft" of intellectual property. > > > I'd suggest using an example of watching selected > portions rather any mentioning any type of copying. -> MPAA and DVD CCA do not have the right--and should not be granted a new right by courts--to prevent an authorized user from making fair use of a legally acquired copy of a work, for example to watch the movie on a Linux computer, or even to make an archival copy [Vault v Quaid, Universal v Sony, legislative history]. thanks, Sphere! From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 22:42:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28894 for dvd-discuss-outgoing; Thu, 21 Sep 2000 22:42:59 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA28891 for ; Thu, 21 Sep 2000 22:42:58 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA04033 for ; Thu, 21 Sep 2000 22:44:19 -0400 (EDT) Message-ID: <39CAC783.9E4BAFCE@mediaone.net> Date: Thu, 21 Sep 2000 22:44:19 -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] Draft of part IV on Reverse Engineering References: <20000921212749.17122.qmail@web514.mail.yahoo.com> <20000921212000.K7490@eldritchpress.org> <39CABAE3.47DDA594@mediaone.net> <20000921221233.A8282@eldritchpress.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > On Thu, Sep 21, 2000 at 09:50:27PM -0400, Sphere wrote: ... > > I'd suggest using an example of watching selected > > portions rather any mentioning any type of copying. > -> > > MPAA and DVD CCA do not have the right--and should not be granted > a new right by courts--to prevent an authorized user from making > fair use of a legally acquired copy of a work, for example to > watch the movie on a Linux computer, or even to > make an archival copy [Vault v Quaid, Universal v Sony, legislative > history]. I'd still like to avoid discussing copying any more than we have to, but if the best precident we have to work with is about copying -- then copying it is. "...for example to watch the movie on a Linux machine, to watch some scene repeatedly, or even..." (Fetishists are people too.) > thanks, Sphere! We all do what we can. Thank you too. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 22:48:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29112 for dvd-discuss-outgoing; Thu, 21 Sep 2000 22:48:39 -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 WAA29109 for ; Thu, 21 Sep 2000 22:48:38 -0400 Received: from Jana-Server (user-38lcnev.dialup.mindspring.com [209.86.93.223]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id WAA06055 for ; Thu, 21 Sep 2000 22:50:01 -0400 (EDT) Message-ID: <39CAC8C7.D41CA2D0@mindspring.com> Date: Thu, 21 Sep 2000 22:49:44 -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] Draft of part IV on 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 > Eric Eldred wrote: > > > > On Thu, Sep 21, 2000 at 02:27:49PM -0700, Bryan Taylor wrote: > > > I offer for your reading pleasure 99 lines explaining why Kaplan should > > > be reversed on reverse engineering: > > > > > > Numbered: > > > http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_IV_numbered.txt > > > > Let's talk about adding before cutting. > > > > In IV we need to explain what reverse engineering is, and what > > it was in this case. I'll divide the paragraphs to make it > > easier to edit. Feel free to demolish this as it's just > > off the top of my head. We need to structure all of the logic > > and add citations later. If you want to add or subtract > > or rewrite anything, please quote the whole thing. > > > > Reverse engineering is a practice, widely accepted among > > engineers in computer technology as well as many other > > fields, to take apart a program or device, in order to > > figure out how it works. > > > Also inspect, or observe. A lot can be learned "non > destructively". > > > > > > The resulting information can > > then be used to build another product that does much the > > same thing. > > > Or something very different. RE is a means, not an > end. > > > > > Sometimes the product is copyrighted or > > patented by a competitor but sometimes it is just > > considered to be an unpublished trade secret (as CSS > > is here). > > > > In other cases, reverse engineering may be > > necessary when a company or individual owns a product > > and needs to have it run on another machine not supported > > by the suppplier (compatibility purpose). > > > Or the supplier no longer exists. > > > > A more recent, > > and important, use of reverse engineering is to perform > > a security analysis on software in order to discover its > > weaknesses and faults, for example how the consumer might > > be endangered by the product. > > > > In all these cases, reverse > > engineering--and the fruits of reverse engineering--have been > > upheld as legal [Sega v Accolade, Uniform Trade Secret Act]. > > > > Technology experts such as the ACM worked hard to include > > this exemption in the DMCA--it was meant to cover just these cases of > > normal engineering practice [legislative history of DMCA]. > > > > In the instant case, reverse engineering of CSS was performed > > [when?] by unknown persons [MoRE?], possibly in Europe, where laws > > specifically protect reverse engineering [deposition of > > Norwegian expert]. > > > > There has been no testimony that CSS > > code was "stolen" by industrial espionage or other "improper > > means." > > > > And the Uniform Trade Secrets Act confirms that > > reverse engineering alone is not sufficent to prove "improper > > means." > > > > Once it has been established that improper means were > > not used to perform the revelation, then there can be no violation > > of trade secrets and no "theft" of intellectual property. > > > > Although I'd assume that RE is an affirmative defense, > I bet that trade secret law requires the plaintiff > prove that something other than simple RE was used. > > > > > The transmittal of the fruits of reverse engineering has always > > been considered legal. > > > > In the case of reverse engineering for > > security analysis, testimony established that publishing the > > results of the analysis were important to correct security > > problems. > > > > Defendants were not the first to publish the fruits > > of reverse engineering of CSS. > > > > DVD CCA had time to correct the > > problem, but refused to do so, preferring to ask the courts to > > protect their broken technology. > > > > But DeCSS and LiViD never threatened their technology. > > > > Their technology, CSS, is not covered by copyright nor patent. > > > > Here MPAA asks the court to protect DVD CCA's trade secrets by means > > of a copyright law--and to do so without their ever having to > > prove any infringement or violation of trade secrets, but instead > > by using DMCA as a proxy. > > > > DeCSS in conjuction with LiViD were meant solely to provide a way for Linux > > users to play DVDs--that they had purchased from plaintiffs--on > > their own machines. > > > > Court's refusal to allow publication of the fruits of reverse > > engineering of CSS is supported neither by statute nor the > > Constitution. > > > > Prior restraint of publication of these fruits--which are under > > a new copyright--is in violation of the First Amendment, which > > states Congress can pass "no law" that restricts freedom of > > speech or freedom of press. > > > > ....most of "A" goes here. > > > > Under "B", the statute provides several reasons for reverse > > engineering, among them "compatibility." > > > > Testimony showed that reverse engineering for purposes of > > security analysis was an important engineering practice and > > that such occurred in this case. > > > > Court erred in finding that "These defendants, however, did > > not post DeCSS 'solely' to achieve interoperability with Linux > > or anything else" > > (p37). > > > > Under O'Brien scrutiny analysis, there is no good governmental > > purpose in so restricting interpretation of the statute to > > 'solely' here. > > > > To do so would only encourage companies to cover up bad engineering > > and the public would be subjected to even more security problems. > > > > ...."C" goes here > > > > Even if court was correct in denying the 1202(f) exclusion > > for reverse engineering in this case, because DeCSS originally > > ran on Microsoft Windows, court falsely concludes from this fact > > that DeCSS was meant to serve in some chain of illegally "copying" > > the copyrighted content. > > > > Many other necessary parts of the putative "copying" chain are overlooked by > > plaintiffs, including many other operating system programs that > > have obviously important legal reasons. > > > > Court ignored testimony that if such copying occurred, it was > > only for compatibility purposes--to play a legally acquired, and > > therefore "authorized" DVD, on a legally acquired, and thus > > "authorized" player, on a legally acquired, and thus "authorized," > > computer system--whether that be Windows or Linux. > > > This needs a transition of some sort. The points in the previous paragraph are distinct from the next one, and should be made separately. These areas tend to get rolled into one, then painted with piracy fear, and then bam, you're guilty from all angles. > > MPAA and DVD CCA do not have the right--and should not be granted > > a new right by courts--to prevent an authorized user from making > > fair use of a legally acquired copy of a work, for example to > > make an archival copy [Vault v Quaid, Universal v Sony, legislative > > history]. > > > > I'd suggest using an example of watching selected > portions rather any mentioning any type of copying. > I agree that there is an apprehension to use the word 'copy', which is sad. In addition to the effect this case is having on the way we choose our words now, it also has the effect of blurring the difference between copy and infringe. I'd rather cover both points and mention the heck out of it. > > > > > > Insofar as DeCSS is a copyrighted program legally acquired by > > users as fruit of reverse engineering, and is exempted by DMCA > > under 1201(f) as such, courts should not violate the Constitution > > and First Amendment by prior restraint of publication of DeCSS. > > good stuff mickeym From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 23:04:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29462 for dvd-discuss-outgoing; Thu, 21 Sep 2000 23:04:33 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA29459 for ; Thu, 21 Sep 2000 23:04:32 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA18372 for ; Thu, 21 Sep 2000 23:05:59 -0400 (EDT) Message-ID: <39CACC96.EC1C5B7D@mediaone.net> Date: Thu, 21 Sep 2000 23:05:58 -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] Draft of part IV on Reverse Engineering References: <39CAC8C7.D41CA2D0@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: > > Eric Eldred wrote: ... > > > > I'd suggest using an example of watching selected > > portions rather any mentioning any type of copying. > > > > I agree that there is an apprehension to use the word 'copy', which is > sad. In addition to the effect this case is having on the way we choose > our words now, it also has the effect of blurring the difference between > copy and infringe. > > I'd rather cover both points and mention the heck out of it. > ... Make the point in one place and mention the Hell out of it there, then avoid it like the plague elsewhere. This is War, and only some of the battles are on the court-room floor. Copying smells like theft, so we need to discuss copying as little as possible outside of contexts where we are not being explicit about the fact that copying is not necessarily theft. We can't be forever pointing out the distinction. If you can point to the next sentence which your opponent elided then you make them the fool. If you have to move to some distant part of the text then you are the fool. Just think of what we can do with Judge Kaplan's ellipses to see what I mean. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 23:14:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29801 for dvd-discuss-outgoing; Thu, 21 Sep 2000 23:14:43 -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 XAA29773 for ; Thu, 21 Sep 2000 23:14:31 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA08418 for dvd-discuss@eon.law.harvard.edu; Thu, 21 Sep 2000 23:16:42 -0400 Date: Thu, 21 Sep 2000 23:16:37 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000921231637.B8282@eldritchpress.org> References: <39CAC8C7.D41CA2D0@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39CAC8C7.D41CA2D0@mindspring.com>; from mickeym@mindspring.com on Thu, Sep 21, 2000 at 10:49:44PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 21, 2000 at 10:49:44PM -0400, mickeym wrote: > > > > > > ...."C" goes here > > > > > > Even if court was correct in denying the 1202(f) exclusion > > > for reverse engineering in this case, because DeCSS originally > > > ran on Microsoft Windows, court falsely concludes from this fact > > > that DeCSS was meant to serve in some chain of illegally "copying" > > > the copyrighted content. I'm not so sure any more that all this "copying" stuff belongs here. Bryan was correct to make a separate argument under "C" that the fact that Windows was incidentally used in the reverse engineering makes no difference about its being reverse engineering for the purposes of compatibility. Let's leave it at that, concisely. What we need to do here is just make a footnote to somewhere else in the brief where we cover the extrapolation by Kaplan that DeCSS.exe runs on Windows and thus involves copy control infringement (no matter about reverse engineering). Sorry for the false track here. > > > > > > Many other necessary parts of the putative "copying" chain are overlooked by > > > plaintiffs, including many other operating system programs that > > > have obviously important legal reasons. > > > > > > Court ignored testimony that if such copying occurred, it was > > > only for compatibility purposes--to play a legally acquired, and > > > therefore "authorized" DVD, on a legally acquired, and thus > > > "authorized" player, on a legally acquired, and thus "authorized," > > > computer system--whether that be Windows or Linux. > > > > > > > This needs a transition of some sort. The points in the previous > paragraph are distinct from the next one, and should be made separately. > These areas tend to get rolled into one, then painted with piracy fear, > and then bam, you're guilty from all angles. > > > > MPAA and DVD CCA do not have the right--and should not be granted > > > a new right by courts--to prevent an authorized user from making > > > fair use of a legally acquired copy of a work, for example to > > > make an archival copy [Vault v Quaid, Universal v Sony, legislative > > > history]. > > > > > > > > I'd suggest using an example of watching selected > > portions rather any mentioning any type of copying. > > > > I agree that there is an apprehension to use the word 'copy', which is > sad. In addition to the effect this case is having on the way we choose > our words now, it also has the effect of blurring the difference between > copy and infringe. > > I'd rather cover both points and mention the heck out of it. > > > > > > > > > > > > Insofar as DeCSS is a copyrighted program legally acquired by > > > users as fruit of reverse engineering, and is exempted by DMCA > > > under 1201(f) as such, courts should not violate the Constitution > > > and First Amendment by prior restraint of publication of DeCSS. > > > > > > good stuff From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 23:33:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30328 for dvd-discuss-outgoing; Thu, 21 Sep 2000 23:33:05 -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 XAA30325 for ; Thu, 21 Sep 2000 23:33:03 -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 XAA20140 for ; Thu, 21 Sep 2000 23:34:29 -0400 (EDT) Message-ID: <39CAD345.2597F654@mediaone.net> Date: Thu, 21 Sep 2000 23:34:29 -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] Draft of part IV on Reverse Engineering References: <39CAC8C7.D41CA2D0@mindspring.com> <20000921231637.B8282@eldritchpress.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > > On Thu, Sep 21, 2000 at 10:49:44PM -0400, mickeym wrote: > > > > > > > > ...."C" goes here > > > > > > > > Even if court was correct in denying the 1202(f) exclusion > > > > for reverse engineering in this case, because DeCSS originally > > > > ran on Microsoft Windows, court falsely concludes from this fact > > > > that DeCSS was meant to serve in some chain of illegally "copying" > > > > the copyrighted content. > > I'm not so sure any more that all this "copying" stuff belongs here. > Bryan was correct to make a separate argument under "C" that the > fact that Windows was incidentally used in the reverse engineering > makes no difference about its being reverse engineering for the > purposes of compatibility. Let's leave it at that, concisely. > > What we need to do here is just make a footnote to somewhere else in > the brief where we cover the extrapolation by Kaplan that DeCSS.exe > runs on Windows and thus involves copy control infringement (no > matter about reverse engineering). > > Sorry for the false track here. > ... I'm not fully following where you want to link to here. Maybe I'm looking at the wrong text. Everything's too fluid at the moment. I agree that copying should be explicitly handled by someone somewhere, and if the best cite we've got is about copying then we use it -- wherever that is. I just want to avoid using copying without qualification, and that means using copying very carefully. We have limited space. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 21 23:49:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30745 for dvd-discuss-outgoing; Thu, 21 Sep 2000 23:49:58 -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 XAA30742 for ; Thu, 21 Sep 2000 23:49:56 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id XAA05488; Thu, 21 Sep 2000 23:51:22 -0400 Date: Thu, 21 Sep 2000 23:51:22 -0400 From: Jim Bauer Message-Id: <200009220351.XAA05488@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Newsgroups: local.dvd-discuss In-Reply-To: <20000921223217.A309@lemuria.org> References: <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> <39CAB0C4.7885B77C@easybase.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt wrote: >Moshe Vainer wrote: >> and then appeal on the basis of no jurisdiction, than to spend the resources (of EFF in >> this case) > >nitpicking: matt is paying this part out of his own pocket. I'm supporting >him financially, since me being a german makes me quite interested in >whether or not a district court in CA believes it has any authority over >me. In a situation like this, would it make sense to contact someone in the local (non-U.S.) government who would then contact the U.S State Department to complain about one of their citizens being harased by the plaintifs and the CA court. In other words, make an international incident out of a CA court ruling. I would suggest legal advise before doing something like this though. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 00:05:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31130 for dvd-discuss-outgoing; Fri, 22 Sep 2000 00:05:02 -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 AAA31127 for ; Fri, 22 Sep 2000 00:04:59 -0400 Received: from ppp.anonymizer.com (c01-048.015.popsite.net [64.24.72.48]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA09657; Thu, 21 Sep 2000 21:08:15 -0700 (PDT) Message-Id: <4.3.2.7.2.20000921205221.00b594d0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 21 Sep 2000 21:06:15 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-Reply-To: <39CAB0C4.7885B77C@easybase.com> References: <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:07 PM 9/21/2000 -0400, Moshe Vainer wrote: >"James S. Tyre" wrote: > > > > > The principle difference is that the petitioning party has no right to have > > the matter heard on the merits by the appellate court, no matter how > > compelling the argument. It is absolutely, totally, 100% within the > > discretion of the appellate court whether to hear the Petition, let alone > > how it may decide it if it does hear it. Year in and year out, California > > appellate courts issue what used to be called "postcard denials" (before > > they went to computers and started using full sheets of paper and > > envelopes) in >90% of writ petitions filed. (Since all they said was > > "petition denied", with no explanation, a postcard was plenty large > > enough.) In petitions such as this, the art, and 90% of the battle, is not > > so much convincing the court that the petitioner is right on the > > substantive argument, but rather convincing the court why it should do > > something extraordinary, take the time to hear something it is not required > > to hear, particularly when (and this is true) the appellate courts are so > > backlogged as it is. > > > > I've not yet read Matt's petition, so I have no comment on it, but since > > many here seem to have a real interest in learning things about the law > > (substance and procedure), I thought it worthwhile to give this > explanation. > > > > And my fingers now are awake. ;-) > > >Does that mean, that in such case that it is better to not defend your >case in the lower >court, >and then appeal on the basis of no jurisdiction, than to spend the >resources (of EFF in >this case) >to defend on merits in lower court, and then you will have to defend on >merits of the case > >in the appealate court? >In the former case, you can argue that you could not defend yourself since >you are not >under jurisdiction, >could not have bothered to travel etc.. >in the latter, you have already been defending yourself, and thus showed >that you have the >ability >to do so under CA's jurisdiction. No, that would not be an advisable course of action. Offlist, a listmember correctly pointed out that my newly-awakened fingers should have pointed out that a postcard denial (if that happens) is not law of the case, res judicata, etc., it is not a determination on the merits of the personal jurisdiction issue, merely one that, for whatever reason, the appellate court chooses (hypothetically) not to hear the matter at this time, with no reason given. In the case of a postcard denial, Matt can, and should, defend on the substantive merits. He can do that while preserving his right to raise both the substance and the personal jurisdiction issue on appeal should he lose at trial. What you suggest is that he put all his eggs into the personal jurisdiction basket. If he loses that on appeal, then he can't defend on the merits. Understand that if a court says it has jurisdiction over you, it has jurisdiction over you, until either it reverses itself or a higher court reverses the lower court. Voluntarily giving up a defense on the substantive merits is unwise when one does not need to in order to be able to pursue the jurisdiction issue on appeal later. -------------------------------------------------------------------- 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 Sep 22 00:06:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31166 for dvd-discuss-outgoing; Fri, 22 Sep 2000 00:06:06 -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 AAA31163 for ; Fri, 22 Sep 2000 00:06:04 -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 XAA25805 for ; Thu, 21 Sep 2000 23:42:57 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000921162936.G7490@eldritchpress.org> References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921162936.G7490@eldritchpress.org> Date: Thu, 21 Sep 2000 23:42:47 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial 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 AAA31164 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 4:29 PM -0400 9/21/2000, Eric Eldred wrote: >On Thu, Sep 21, 2000 at 02:28:30PM -0400, Moshe Vainer wrote: >> John Young wrote: >> >> > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's >> > appeal of Judge Elfving's denial of his motion to quash the court's >> > jurisdiction: >> > >> > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > >This seems to be related, strangely, to the SDNY case. > >from Exhibit F, REPORTER'S TRANSCRIPT OF PROCEEDINGS >    > 18 HELD ON AUGUST 29,2000 > >8... > > 12 I'D ALSO TAKE ISSUE WITH THE PORTRAYAL OF > > 13 MR. PAVOLICH BY COUNSEL. HE IS MUCH MORE THAN A > > 14 TWENTY-TWO YEAR OLD FORMER STUDENT, EAGLE SCOUT. HE > > 15 IS A LEADER IN THE OPEN SOURCE MOVEMENT. > >My, my, if he is in the "OPEN SOURCE MOVEMENT" and a >leader, he must be very dangerous! So are we all. >The courts definitely need a great deal of education >on "Open Source" and "Free Software," else the other >side will falsely characterize us. > Here are some quotes that may be useful from Judge Jackson's Findings of Fact in the Microsoft Antitrust case: http://www.usdoj.gov/atr/cases/f3800/msjudgex.htm "Linux is an "open source" operating system that was created, and is continuously updated, by a global network of software developers who contribute their labor for free." "51. Since application developers working under an open-source model are not looking to recoup their investment and make a profit by selling copies of their finished products, they are free from the imperative that compels proprietary developers to concentrate their efforts on Windows. In theory, then, open-source developers are at least as likely to develop applications for a non-Microsoft operating system as they are to write Windows-compatible applications. In fact, they may be disposed ideologically to focus their efforts on open-source platforms like Linux. Fortunately for Microsoft, however, there are only so many developers in the world willing to devote their talents to writing, testing, and debugging software pro bono publico." Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 00:12:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31442 for dvd-discuss-outgoing; Fri, 22 Sep 2000 00:12:25 -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 AAA31438 for ; Fri, 22 Sep 2000 00:12:19 -0400 Received: from ppp.anonymizer.com (c01-048.015.popsite.net [64.24.72.48]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA12477 for ; Thu, 21 Sep 2000 21:15:39 -0700 (PDT) Message-Id: <4.3.2.7.2.20000921211215.00b90ed0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 21 Sep 2000 21:13:37 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-Reply-To: References: <20000921162936.G7490@eldritchpress.org> <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921162936.G7490@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 11:42 PM 9/21/2000 -0400, Arnold G. Reinhold wrote: >Here are some quotes that may be useful from Judge Jackson's Findings of >Fact in the Microsoft Antitrust case: >http://www.usdoj.gov/atr/cases/f3800/msjudgex.htm > >"Linux is an "open source" operating system that was created, and is >continuously updated, by a global network of software developers who >contribute their labor for free." > >"51. Since application developers working under an open-source model are >not looking to recoup >their investment and make a profit by selling copies of their finished >products, they are free from >the imperative that compels proprietary developers to concentrate their >efforts on Windows. In >theory, then, open-source developers are at least as likely to develop >applications for a >non-Microsoft operating system as they are to write Windows-compatible >applications. In fact, >they may be disposed ideologically to focus their efforts on open-source >platforms like Linux. >Fortunately for Microsoft, however, there are only so many developers in >the world willing to >devote their talents to writing, testing, and debugging software pro bono >publico." Damn, let's chuck all the drafts of the statement of interest and have Judge J. write 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 Sep 22 01:44:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA00811 for dvd-discuss-outgoing; Fri, 22 Sep 2000 01:44:03 -0400 Received: from PROXY ([202.139.53.82]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA00808 for ; Fri, 22 Sep 2000 01:43:56 -0400 Received: from 192.168.200.12 by PROXY (InterScan E-Mail VirusWall NT); Fri, 22 Sep 2000 13:45:07 +0800 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 22 Sep 2000 13:38:11 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0372E3@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Date: Fri, 22 Sep 2000 13:38:10 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu might be good to cite a government report http://www.ccic.gov/ac/pitac_ltr_sep11.html that advises the president that "The report makes three recommendations. First, the Federal government should aggressively encourage the development of open source software for high end computing. Adopting this recommendation will require a technical assessment of the software needs for high end computing as well as an innovative management plan and funding model for supporting this development. Second, a "level playing field" must be created within the government procurement process to facilitate open source development. Third, an analysis of open source licensing agreements is needed, with an ultimate goal of agreeing upon a single common licensing agreement for open source software applications." Scary that they want to define the licenses but that's Gov. for you. se also http://linuxtoday.com/news_story.php3?ltsn=2000-09-14-006-21-OP-CY-SW and http://slashdot.org/article.pl?sid=00/09/17/1239230&mode=thread cya, Andrew... > -----Original Message----- > From: Sphere [SMTP:sphere1952@mediaone.net] > Sent: Friday, September 22, 2000 10:03 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial > > > > Eric Eldred wrote: > > > > On Thu, Sep 21, 2000 at 02:28:30PM -0400, Moshe Vainer wrote: > > > John Young wrote: > > > > > > > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > > > > appeal of Judge Elfving's denial of his motion to quash the court's > > > > jurisdiction: > > > > > > > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > > > > This seems to be related, strangely, to the SDNY case. > > > > from Exhibit F, REPORTER'S TRANSCRIPT OF PROCEEDINGS > > > > 18 HELD ON AUGUST 29,2000 > > > > 8... > > > > 12 I'D ALSO TAKE ISSUE WITH THE PORTRAYAL OF > > > > 13 MR. PAVOLICH BY COUNSEL. HE IS MUCH MORE THAN A > > > > 14 TWENTY-TWO YEAR OLD FORMER STUDENT, EAGLE SCOUT. HE > > > > 15 IS A LEADER IN THE OPEN SOURCE MOVEMENT. > > > > My, my, if he is in the "OPEN SOURCE MOVEMENT" and a > > leader, he must be very dangerous! So are we all. > > The courts definitely need a great deal of education > > on "Open Source" and "Free Software," else the other > > side will falsely characterize us. > ... > > > I don't know about the courts, but we should > work on getting the word out about the MPAA's > characterization of the Open Source community > to the software industry. For the most part > individual software engineers have a lot of > discretion about which customer reported bugs > they put the most work into. If the engineers > are not happy with the movie studios then the > movie studios might find their software doesn't > work quite as well as they'd like. Their > profit margins will suffer, and they won't > have so much money available to spend on > subjugating people who don't tow the line. > > -- > Sphere. > > Government has no legitimate interest in > protecting a monopoly from free speech. The information transmitted is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, copying or other use of, or taking any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this in error, please contact the sender and delete the material from your system. Utility Services Corporation (USC) is not responsible for any changes made to the material other than those made by USC or for the effect of the changes on the material’s meaning. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 02:37:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA01931 for dvd-discuss-outgoing; Fri, 22 Sep 2000 02:37:09 -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 CAA01928 for ; Fri, 22 Sep 2000 02:37:06 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 22 Sep 2000 08:33:20 +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, 22 Sep 2000 08:12:19 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 22 Sep 2000 08:12:19 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000922081219.B2201@lemuria.org> References: <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> <39CAB0C4.7885B77C@easybase.com> <20000921223217.A309@lemuria.org> <200009220351.XAA05488@emperor.hwrd1.md.home.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200009220351.XAA05488@emperor.hwrd1.md.home.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 Jim Bauer wrote: > In a situation like this, would it make sense to contact someone in > the local (non-U.S.) government who would then contact the U.S State > Department to complain about one of their citizens being harased by > the plaintifs and the CA court. In other words, make an international > incident out of a CA court ruling. I'm working on something like this. details coming as soon as I'm done. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 02:37:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA01924 for dvd-discuss-outgoing; Fri, 22 Sep 2000 02:37:06 -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 CAA01920 for ; Fri, 22 Sep 2000 02:37:05 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 22 Sep 2000 08:33:20 +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, 22 Sep 2000 08:10:57 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 22 Sep 2000 08:10:57 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000922081057.A2201@lemuria.org> References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921162936.G7490@eldritchpress.org> <39CABDD9.F1E390B2@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <39CABDD9.F1E390B2@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: > they put the most work into. If the engineers > are not happy with the movie studios then the > movie studios might find their software doesn't > work quite as well as they'd like. Their > profit margins will suffer, and they won't > have so much money available to spend on > subjugating people who don't tow the line. is this a new kind of boycott? instead of not buying from a company, refuse to fix their bugs, send them software, or maybe even work for them? I know that if I were working for an MPAA member right now, I'd have gone home and never returned to work the day they sued me. not sure about US law, but german law would probably cover me there - talk about losing trust in your employer and all. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 07:43:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA08988 for dvd-discuss-outgoing; Fri, 22 Sep 2000 07:43:12 -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 HAA08983 for ; Fri, 22 Sep 2000 07:43:10 -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 HAA13845 for ; Fri, 22 Sep 2000 07:44:37 -0400 (EDT) Message-ID: <39CB4625.10A9E159@mediaone.net> Date: Fri, 22 Sep 2000 07:44:37 -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] Pavlovich Appeal of Quash Motion Denial References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921162936.G7490@eldritchpress.org> <39CABDD9.F1E390B2@mediaone.net> <20000922081057.A2201@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: > > they put the most work into. If the engineers > > are not happy with the movie studios then the > > movie studios might find their software doesn't > > work quite as well as they'd like. Their > > profit margins will suffer, and they won't > > have so much money available to spend on > > subjugating people who don't tow the line. > > is this a new kind of boycott? instead of not buying from a company, refuse > to fix their bugs, send them software, or maybe even work for them? Supplier boycotts aren't new, but suppliers' employees boycotting might be a new wrinkle. > I know that if I were working for an MPAA member right now, I'd have gone > home and never returned to work the day they sued me. not sure about US > law, but german law would probably cover me there - talk about losing trust > in your employer and all. > > -- > "The net treats censorship as a malfunction and re-routes around it." > (John Gilmore) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 07:49:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA09209 for dvd-discuss-outgoing; Fri, 22 Sep 2000 07:49:08 -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 HAA09206 for ; Fri, 22 Sep 2000 07:49:07 -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 HAA15503 for ; Fri, 22 Sep 2000 07:50:32 -0400 (EDT) Message-ID: <39CB4789.3925FC71@mediaone.net> Date: Fri, 22 Sep 2000 07:50:33 -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] Pavlovich Appeal of Quash Motion Denial References: <54A50136B6CAD3118FBD00C00D00DDEF0372E3@mits_perth_com1.mitswa.com.au> 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 "McMeikan, Andrew" wrote: > > might be good to cite a government report > http://www.ccic.gov/ac/pitac_ltr_sep11.html that advises the president that > "The report makes three recommendations. First, the Federal government > should aggressively encourage the development of open source software for > high end computing. Adopting this recommendation will require a technical > assessment of the software needs for high end computing as well as an > innovative management plan and funding model for supporting this > development. Second, a "level playing field" must be created within the > government procurement process to facilitate open source development. Third, > an analysis of open source licensing agreements is needed, with an ultimate > goal of agreeing upon a single common licensing agreement for open source > software applications." > Scary that they want to define the licenses but that's Gov. for you. As long as the Govt agrees upon GPL, I don't care. If they don't agree to GPL they're not going to find much software around to start with as a base. Once code is GPL it stays GPL. > > se also > http://linuxtoday.com/news_story.php3?ltsn=2000-09-14-006-21-OP-CY-SW and > http://slashdot.org/article.pl?sid=00/09/17/1239230&mode=thread > cya, Andrew... > > > -----Original Message----- > > From: Sphere [SMTP:sphere1952@mediaone.net] > > Sent: Friday, September 22, 2000 10:03 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial > > > > > > > > Eric Eldred wrote: > > > > > > On Thu, Sep 21, 2000 at 02:28:30PM -0400, Moshe Vainer wrote: > > > > John Young wrote: > > > > > > > > > We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > > > > > appeal of Judge Elfving's denial of his motion to quash the court's > > > > > jurisdiction: > > > > > > > > > > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > > > > > > This seems to be related, strangely, to the SDNY case. > > > > > > from Exhibit F, REPORTER'S TRANSCRIPT OF PROCEEDINGS > > > > > > 18 HELD ON AUGUST 29,2000 > > > > > > 8... > > > > > > 12 I'D ALSO TAKE ISSUE WITH THE PORTRAYAL OF > > > > > > 13 MR. PAVOLICH BY COUNSEL. HE IS MUCH MORE THAN A > > > > > > 14 TWENTY-TWO YEAR OLD FORMER STUDENT, EAGLE SCOUT. HE > > > > > > 15 IS A LEADER IN THE OPEN SOURCE MOVEMENT. > > > > > > My, my, if he is in the "OPEN SOURCE MOVEMENT" and a > > > leader, he must be very dangerous! So are we all. > > > The courts definitely need a great deal of education > > > on "Open Source" and "Free Software," else the other > > > side will falsely characterize us. > > ... > > > > > > I don't know about the courts, but we should > > work on getting the word out about the MPAA's > > characterization of the Open Source community > > to the software industry. For the most part > > individual software engineers have a lot of > > discretion about which customer reported bugs > > they put the most work into. If the engineers > > are not happy with the movie studios then the > > movie studios might find their software doesn't > > work quite as well as they'd like. Their > > profit margins will suffer, and they won't > > have so much money available to spend on > > subjugating people who don't tow the line. > > > > -- > > Sphere. > > > > Government has no legitimate interest in > > protecting a monopoly from free speech. > The information transmitted is intended for the person or entity to > which it is addressed and may contain confidential and/or privileged > material. Any review, retransmission, dissemination, copying or other > use of, or taking any action in reliance upon, this information by > persons or entities other than the intended recipient is prohibited. If > you have received this in error, please contact the sender and delete > the material from your system. Utility Services Corporation (USC) is not > responsible for any changes made to the material other than those made > by USC or for the effect of the changes on the material’s meaning. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 08:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA10401 for dvd-discuss-outgoing; Fri, 22 Sep 2000 08:52:34 -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 IAA10398 for ; Fri, 22 Sep 2000 08:52:33 -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 IAA06097 for ; Fri, 22 Sep 2000 08:54:00 -0400 (EDT) Message-ID: <39CB5668.68FD77DA@mediaone.net> Date: Fri, 22 Sep 2000 08:54:00 -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] Pavlovich Appeal of Quash Motion Denial References: <20000921162936.G7490@eldritchpress.org> <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921162936.G7490@eldritchpress.org> <4.3.2.7.2.20000921211215.00b90ed0@cyberpass.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 "James S. Tyre" wrote: > > At 11:42 PM 9/21/2000 -0400, Arnold G. Reinhold wrote: > > >Here are some quotes that may be useful from Judge Jackson's Findings of > >Fact in the Microsoft Antitrust case: > >http://www.usdoj.gov/atr/cases/f3800/msjudgex.htm > > > >"Linux is an "open source" operating system that was created, and is > >continuously updated, by a global network of software developers who > >contribute their labor for free." > > > >"51. Since application developers working under an open-source model are > >not looking to recoup > >their investment and make a profit by selling copies of their finished > >products, they are free from > >the imperative that compels proprietary developers to concentrate their > >efforts on Windows. In > >theory, then, open-source developers are at least as likely to develop > >applications for a > >non-Microsoft operating system as they are to write Windows-compatible > >applications. In fact, > >they may be disposed ideologically to focus their efforts on open-source > >platforms like Linux. > >Fortunately for Microsoft, however, there are only so many developers in > >the world willing to > >devote their talents to writing, testing, and debugging software pro bono > >publico." > > Damn, let's chuck all the drafts of the statement of interest and have > Judge J. write it. ;-) What role do findings of fact play from case to case? Can we be angels of mercy in one case, and the devil incarnate in another? ("pro bono publico" -- I love 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 -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 09:06:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA10731 for dvd-discuss-outgoing; Fri, 22 Sep 2000 09:06:04 -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 JAA10728 for ; Fri, 22 Sep 2000 09:06:03 -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 JAA21096 for ; Fri, 22 Sep 2000 09:07:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA28614; Fri, 22 Sep 2000 09:07:30 -0400 (EDT) Date: Fri, 22 Sep 2000 09:07:30 -0400 (EDT) Message-Id: <200009221307.JAA28614@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering In-Reply-To: <20000921212000.K7490@eldritchpress.org> References: <20000921212749.17122.qmail@web514.mail.yahoo.com> <20000921212000.K7490@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > Let's talk about adding before cutting. > > In IV we need to explain what reverse engineering is, and what > it was in this case. Agreed, but I think it's important to center that discussion on why this particular instance of reverse engineering was happening at all, briefly but clearly, before discussing any of the legal points; those reasons are completely shaping our view of the case, but they will not likely be obvious to the court. Johansen's direct testimony on the point establishes two very useful facts: *) He was cooperating in an effort to build a player, not trying to build tools for copying. (If copying of any kind, legitimate fair use or otherwise, had anything to do with it, he could have just used DOD ripper, which he examined and rejected). *) One of his most important reasons for doing so was to get around the "region coding" scheme mandated in licensed players by the CSS license. The latter could be used later on to explain how the plaintiffs' licensing regime is *already* harming the interests of consumers, and stifling public discourse by making foreign points of view difficult to access (and likely inaccessible in the future). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 09:16:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA11014 for dvd-discuss-outgoing; Fri, 22 Sep 2000 09:16:07 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA11011 for ; Fri, 22 Sep 2000 09:16:01 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id JAA09295 for ; Fri, 22 Sep 2000 09:17:29 -0400 (EDT) Message-ID: <39CB5BE9.65CB0C47@mediaone.net> Date: Fri, 22 Sep 2000 09:17:29 -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] Draft of part IV on Reverse Engineering References: <20000921212749.17122.qmail@web514.mail.yahoo.com> <20000921212000.K7490@eldritchpress.org> <200009221307.JAA28614@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: > > Eric Eldred writes: > > > Let's talk about adding before cutting. > > > > In IV we need to explain what reverse engineering is, and what > > it was in this case. > > Agreed, but I think it's important to center that discussion on why > this particular instance of reverse engineering was happening at all, > briefly but clearly, before discussing any of the legal points; those > reasons are completely shaping our view of the case, but they will > not likely be obvious to the court. > > Johansen's direct testimony on the point establishes two very useful > facts: > > *) He was cooperating in an effort to build a player, not trying > to build tools for copying. (If copying of any kind, legitimate > fair use or otherwise, had anything to do with it, he could have > just used DOD ripper, which he examined and rejected). > > *) One of his most important reasons for doing so was to get around > the "region coding" scheme mandated in licensed players by the > CSS license. I think this was his overriding concern, such that all other reasons were insignificant. I'd be pissed too if I went to Delaware and bought a DVD then brought it back to Massachusetts and found I couldn't play it. > The latter could be used later on to explain how the plaintiffs' > licensing regime is *already* harming the interests of consumers, and > stifling public discourse by making foreign points of view difficult > to access (and likely inaccessible in the future). > > rst -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 10:22:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12244 for dvd-discuss-outgoing; Fri, 22 Sep 2000 10:22:51 -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 KAA12241 for ; Fri, 22 Sep 2000 10:22:49 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13cTkO-0006Jr-00 for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 16:24:16 +0200 Date: Fri, 22 Sep 2000 16:24:16 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-Reply-To: <39CB5668.68FD77DA@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 Aside from CA jurisdictional issues, what about Texas law in this case. Suppose that a Texas court would hold that the RE was proper (through declaratory judgement ?), while a a CA court rules it improper, can the CA court then enforce the ruling, across State borders without regards to the fact that a Texas court have found the same acts that the CA court seeks to enjoin legal in Texas ? And how does pre-emption come into play in such a case ? Which federal circuit would hear the case ? Is the ninth circuit the only option, or can it land in the Texas circuit only through seeking a declaratory judgment ? I guess I am not as much asking questions about procedures, as trying to guess what the next move from the EFF team will be. frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 10:48:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12841 for dvd-discuss-outgoing; Fri, 22 Sep 2000 10:48:26 -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 KAA12838 for ; Fri, 22 Sep 2000 10:48:25 -0400 Message-ID: <20000922144952.9359.qmail@web6401.mail.yahoo.com> Received: from [207.1.61.238] by web6401.mail.yahoo.com; Fri, 22 Sep 2000 07:49:52 PDT Date: Fri, 22 Sep 2000 07:49:52 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Draft of part IV on 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 --- "Robert S. Thau" wrote: > > *) One of his most important reasons for doing so was to get around > the "region coding" scheme mandated in licensed players by the > CSS license. Was it really? IIRC, Johansen testified that like most DVD players sold in Norway, his had been hacked to ignore region coding. __________________________________________________ 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 Sep 22 11:08:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13521 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:08:58 -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 LAA13518 for ; Fri, 22 Sep 2000 11:08:57 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Fri, 22 Sep 2000 11:09:17 -0400 Message-ID: From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Draft of part IV on Reverse Engineering Date: Fri, 22 Sep 2000 11:09:13 -0400 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain; charset="ISO-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A good footnote item would be that every DVD player must decrypt and make an intermediate temporary copy (even if the copy is part of a stream, it is a copy). Johansen testified that he decrypts a DVD every time he watches it. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 11:27:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14164 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:27:09 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA14145 for ; Fri, 22 Sep 2000 11:27:04 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 08:00:48 -0700 Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 08:00:46 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 08:00:47 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Welcome to Hollywierd....listening to Jack "Boots" Valenti's press releases has been a source of amazement and amusement to me. Eric Eldred To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Pavlovich Appeal of arvard.edu Quash Motion Denial 09/21/00 05:01 PM Please respond to dvd-discuss On Thu, Sep 21, 2000 at 02:26:00PM -0700, Michael.A.Rolenz@aero.org wrote: > > I wouldn't put any money on George of the Bushes Junior calling out the > Texas Rangers I think somebody is trying to make a movie out of reality here, and it's not us. Have you noticed that criminals really do learn to talk just like their counterparts on tv? > On Thu, Sep 21, 2000 at 12:33:18PM -0400, Leland Ray wrote: > > > > You know, Mr. Pavlovich is in the wrong business. What he > > should have done is become a dictator of a South American > > country, and initiated a program of torture and murder. > > Then, no court would ever have jurisdiction over him. > > > > > > (Can you tell I am feeling a bit cynical today?) > > Yes. > > But it might not be too silly to suggest that Matt watch > his step. The U.S. government has made a practice of > kidnapping people in foreign countries and jailing them > in U.S. local jurisdictions for trial. Should Matt ask > Governor Bush for protection by the Texas Rangers against > California agents? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 11:31:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14351 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:31:34 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA14348 for ; Fri, 22 Sep 2000 11:31:33 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 08:06:49 -0700 Subject: Re: [dvd-discuss] 4C Entity To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 08:06:46 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 08:06:48 AM MIME-Version: 1.0 Content-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 problem with the MPAA, RIAA, and the rest are that they do not want to relinquish the C O N T R O L that they have had for all these decades. They can make money but they may have to give up some of their C O N T R O L of other markets and they don't want to do it. BTW. That is another problem with monopolies and trusts. They do what they can to prevent progress to control the market as they have been. The MPAA, RIAA are classic trusts and should be broken up so they have to compete with each other again - where's the DOJ when you need them? Eric Eldred To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] 4C Entity arvard.edu 09/21/00 05:05 PM Please respond to dvd-discuss On Thu, Sep 21, 2000 at 05:14:14PM -0500, Steve Stearns wrote: > > On Thu, 21 Sep 2000 Michael.A.Rolenz@aero.org wrote: > > > BTW- When I read the TicketMaster Vs. T.COm case I was struck by the fact > > that TM didn't think to intercept T.Com's webcrawler and either reject it > > or send back bad info for them to post on their site. The latter would make > > a VERY amusing court case.....truly information warfare. > > I suspect this is the way these companies are going to eventually have to > go if they want to defend themselves. They can file lawsuits all day, but > they'll never keep up with the threats. Another good example of this > issue was what Bare Naked Ladies did to Napster. Rather than suing to > keep their music off of their, they just flooded the system with MP3's the > looked like their songs but turned out to be advertisments. The problem with that is, the recording industry is desperately trying to find a way to make money on mp3s over the internet. For example, they try to buy out MP3.com or scour.net. Essentially, it's not so much that Napster should be illegal, but it should be illegal for people to share without the recording industry making a profit on their sharing. No doubt they will fine tune the ads on their "legitimate" content and then the fake MP3s will be "copyright infringement" and banned. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 11:32:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14375 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:32:14 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA14356 for ; Fri, 22 Sep 2000 11:32:07 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 08:07:47 -0700 Subject: Re: [dvd-discuss] Deep linking To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 08:07:45 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 08:07:46 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Answer : L A W Y E R S. "John Dempsey" To: Sent by: cc: owner-dvd-discuss@eon.law.h Subject: [dvd-discuss] Deep linking arvard.edu 09/21/00 05:46 PM Please respond to dvd-discuss > Actually, I should have said that I hadn't heard of 'deep linking" before > Kaplan mentioned it earlier in the year. It's my understanding that a web site can prevent deep linking. At least I am aware of enough information coming to the server to determine the page that linked the user to the current page. With this a site can block people not using the front door. So I don't understand how this can reach litigation. John From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 11:37:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14519 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:37:02 -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 LAA14516 for ; Fri, 22 Sep 2000 11:37:00 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 22 Sep 2000 17:31:29 +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; Fri, 22 Sep 2000 17:22:19 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 22 Sep 2000 17:22:19 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000922172219.A3372@lemuria.org> References: <39CB5668.68FD77DA@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 Frank Andrew Stevenson wrote: > Aside from CA jurisdictional issues, what about Texas law in this case. > Suppose that a Texas court would hold that the RE was proper (through > declaratory judgement ?), wouldn't it be the NORWEGIAN court that decides this? or (more likely) a german court? this one has me puzzled still: how can a CA court even decide whether or not something that happened in EUROPE was legal or not? -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 11:45:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14912 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:45:38 -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 LAA14909 for ; Fri, 22 Sep 2000 11:45:36 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13cV2U-0000Vy-00 for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 17:47:03 +0200 Date: Fri, 22 Sep 2000 17:47:02 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering In-Reply-To: <20000922144952.9359.qmail@web6401.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, 22 Sep 2000, Pete Broule wrote: > Was it really? IIRC, Johansen testified that like most DVD players > sold in Norway, his had been hacked to ignore region coding. > I guess this is mostly true for standalone players, not software players. Most shops here openly advertise that their players either don't adhere to region coding, or can be 'upgraded' for a small fee. Also the player that I recently bought can have Macrovision turned off by using an undocumented procedure ( openly described on the net ). The irony of this is that John was apparently brought in for questioning, about having "broken some protection" - while 90% of the electronics stores in Norway _openly_ sell DVD players with the exact same protections broken. Moreover, as a principle in Norway in order to be found guilty of having broken a law, it should be reasonably expected that you had a possibility of determining that the particular act was illegal or not. Word is that the investigative unit that looked into Jons action just recently turned in a report regarding the basis of prosecution. It seems odd to expect a 15 year old to know that reading a DVD should have been illegal, when experts have used 9 MONTHS to finish a report determining this question. If they move ahead with prosecution, it will not be based on what the experts have found, but rather from the momentum the case has gained. It isn't easy to admit that "We spent nine months looking into this, and now conclude that there is no law barring anyone from reading their own DVD, so we will not prosecute, sorry for keeping you all waiting so long." frank This sentence is unique in this respect; it can safely be attributed to my employer, Funcom Oslo AS. There is no place like N59 50.558' E010 50.870'. (WGS84) I enjoy coffee, and support cafe: http://www.eff.org/cafe/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 11:45:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA14904 for dvd-discuss-outgoing; Fri, 22 Sep 2000 11:45:35 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA14901 for ; Fri, 22 Sep 2000 11:45:33 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 08:19:13 -0700 Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 08:19:11 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 08:19:12 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You may want to add that if the results of reverse engineering are not allowed to be disseminated to interested parties, then that in itself is a prohibition of the ability to do it. Eric Eldred To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Draft of part IV on arvard.edu Reverse Engineering 09/21/00 06:21 PM Please respond to dvd-discuss On Thu, Sep 21, 2000 at 02:27:49PM -0700, Bryan Taylor wrote: > I offer for your reading pleasure 99 lines explaining why Kaplan should > be reversed on reverse engineering: > > Numbered: > http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/2nd_Cir/part_IV_numbered.txt Let's talk about adding before cutting. In IV we need to explain what reverse engineering is, and what it was in this case. I'll divide the paragraphs to make it easier to edit. Feel free to demolish this as it's just off the top of my head. We need to structure all of the logic and add citations later. If you want to add or subtract or rewrite anything, please quote the whole thing. Reverse engineering is a practice, widely accepted among engineers in computer technology as well as many other fields, to take apart a program or device, in order to figure out how it works. The resulting information can then be used to build another product that does much the same thing. Sometimes the product is copyrighted or patented by a competitor but sometimes it is just considered to be an unpublished trade secret (as CSS is here). In other cases, reverse engineering may be necessary when a company or individual owns a product and needs to have it run on another machine not supported by the suppplier (compatibility purpose). A more recent, and important, use of reverse engineering is to perform a security analysis on software in order to discover its weaknesses and faults, for example how the consumer might be endangered by the product. In all these cases, reverse engineering--and the fruits of reverse engineering--have been upheld as legal [Sega v Accolade, Uniform Trade Secret Act]. Technology experts such as the ACM worked hard to include this exemption in the DMCA--it was meant to cover just these cases of normal engineering practice [legislative history of DMCA]. In the instant case, reverse engineering of CSS was performed [when?] by unknown persons [MoRE?], possibly in Europe, where laws specifically protect reverse engineering [deposition of Norwegian expert]. There has been no testimony that CSS code was "stolen" by industrial espionage or other "improper means." And the Uniform Trade Secrets Act confirms that reverse engineering alone is not sufficent to prove "improper means." Once it has been established that improper means were not used to perform the revelation, then there can be no violation of trade secrets and no "theft" of intellectual property. The transmittal of the fruits of reverse engineering has always been considered legal. In the case of reverse engineering for security analysis, testimony established that publishing the results of the analysis were important to correct security problems. Defendants were not the first to publish the fruits of reverse engineering of CSS. DVD CCA had time to correct the problem, but refused to do so, preferring to ask the courts to protect their broken technology. But DeCSS and LiViD never threatened their technology. Their technology, CSS, is not covered by copyright nor patent. Here MPAA asks the court to protect DVD CCA's trade secrets by means of a copyright law--and to do so without their ever having to prove any infringement or violation of trade secrets, but instead by using DMCA as a proxy. DeCSS in conjuction with LiViD were meant solely to provide a way for Linux users to play DVDs--that they had purchased from plaintiffs--on their own machines. Court's refusal to allow publication of the fruits of reverse engineering of CSS is supported neither by statute nor the Constitution. Prior restraint of publication of these fruits--which are under a new copyright--is in violation of the First Amendment, which states Congress can pass "no law" that restricts freedom of speech or freedom of press. ....most of "A" goes here. Under "B", the statute provides several reasons for reverse engineering, among them "compatibility." Testimony showed that reverse engineering for purposes of security analysis was an important engineering practice and that such occurred in this case. Court erred in finding that "These defendants, however, did not post DeCSS 'solely' to achieve interoperability with Linux or anything else" (p37). Under O'Brien scrutiny analysis, there is no good governmental purpose in so restricting interpretation of the statute to 'solely' here. To do so would only encourage companies to cover up bad engineering and the public would be subjected to even more security problems. ...."C" goes here Even if court was correct in denying the 1202(f) exclusion for reverse engineering in this case, because DeCSS originally ran on Microsoft Windows, court falsely concludes from this fact that DeCSS was meant to serve in some chain of illegally "copying" the copyrighted content. Many other necessary parts of the putative "copying" chain are overlooked by plaintiffs, including many other operating system programs that have obviously important legal reasons. Court ignored testimony that if such copying occurred, it was only for compatibility purposes--to play a legally acquired, and therefore "authorized" DVD, on a legally acquired, and thus "authorized" player, on a legally acquired, and thus "authorized," computer system--whether that be Windows or Linux. MPAA and DVD CCA do not have the right--and should not be granted a new right by courts--to prevent an authorized user from making fair use of a legally acquired copy of a work, for example to make an archival copy [Vault v Quaid, Universal v Sony, legislative history]. Insofar as DeCSS is a copyrighted program legally acquired by users as fruit of reverse engineering, and is exempted by DMCA under 1201(f) as such, courts should not violate the Constitution and First Amendment by prior restraint of publication of DeCSS. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 12:10:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16842 for dvd-discuss-outgoing; Fri, 22 Sep 2000 12:10:05 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16839 for ; Fri, 22 Sep 2000 12:10:00 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 08:50:05 -0700 Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 08:50:04 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 08:50:04 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Not a bad idea....I wonder what his viewson this case are. "James S. Tyre" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Pavlovich Appeal of arvard.edu Quash Motion Denial 09/21/00 09:15 PM Please respond to dvd-discuss At 11:42 PM 9/21/2000 -0400, Arnold G. Reinhold wrote: >Here are some quotes that may be useful from Judge Jackson's Findings of >Fact in the Microsoft Antitrust case: >http://www.usdoj.gov/atr/cases/f3800/msjudgex.htm > >"Linux is an "open source" operating system that was created, and is >continuously updated, by a global network of software developers who >contribute their labor for free." > >"51. Since application developers working under an open-source model are >not looking to recoup >their investment and make a profit by selling copies of their finished >products, they are free from >the imperative that compels proprietary developers to concentrate their >efforts on Windows. In >theory, then, open-source developers are at least as likely to develop >applications for a >non-Microsoft operating system as they are to write Windows-compatible >applications. In fact, >they may be disposed ideologically to focus their efforts on open-source >platforms like Linux. >Fortunately for Microsoft, however, there are only so many developers in >the world willing to >devote their talents to writing, testing, and debugging software pro bono >publico." Damn, let's chuck all the drafts of the statement of interest and have Judge J. write 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 Sep 22 12:10:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16866 for dvd-discuss-outgoing; Fri, 22 Sep 2000 12:10:41 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16863 for ; Fri, 22 Sep 2000 12:10:35 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 08:53:12 -0700 Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 08:53:09 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 08:53:11 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu But the hacking in the USA would be illegal under the DMCA. Pete Broule To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Draft of part IV on arvard.edu Reverse Engineering 09/22/00 07:52 AM Please respond to dvd-discuss --- "Robert S. Thau" wrote: > > *) One of his most important reasons for doing so was to get around > the "region coding" scheme mandated in licensed players by the > CSS license. Was it really? IIRC, Johansen testified that like most DVD players sold in Norway, his had been hacked to ignore region coding. __________________________________________________ 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 Sep 22 13:47:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19307 for dvd-discuss-outgoing; Fri, 22 Sep 2000 13:47:04 -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 NAA19295 for ; Fri, 22 Sep 2000 13:47:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Fri, 22 Sep 2000 19:38:21 +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; Fri, 22 Sep 2000 17:34:11 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Fri, 22 Sep 2000 17:34:11 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 4C Entity Message-ID: <20000922173410.A3472@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 Michael.A.Rolenz@aero.org wrote: > The problem with the MPAA, RIAA, and the rest are that they do not want to > relinquish the C O N T R O L that they have had for all these decades. almost. my best guess is that the MPAA wants to have the medieval guild systems back - with itself as the Movie Guild, of course. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 14:09:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20103 for dvd-discuss-outgoing; Fri, 22 Sep 2000 14:09:42 -0400 Received: from nanocrew.net (nanocrew.net [195.204.80.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA20100 for ; Fri, 22 Sep 2000 14:09:40 -0400 Received: (qmail 16308 invoked by uid 1000); 22 Sep 2000 18:07:49 -0000 Date: Fri, 22 Sep 2000 20:07:49 +0200 From: Jon Lech Johansen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000922200749.A20231@nanocrew.net> References: <20000922144952.9359.qmail@web6401.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <20000922144952.9359.qmail@web6401.mail.yahoo.com>; from pbroule@yahoo.com on Fri, Sep 22, 2000 at 07:49:52AM -0700 X-Website-You-Must-Visit: www.eff.org X-Sender: jon@nanocrew.net Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 22, 2000 at 07:49:52AM -0700, Pete Broule wrote: > Was it really? IIRC, Johansen testified that like most DVD players > sold in Norway, his had been hacked to ignore region coding. This was my standalone player which I bought about a week before I was brought in for questioning. I paid $55 to have hardware added which disables macrovision and allows me to select region 0-6, region 0 being "ignore" which works with most discs. The owner of the shop told me that the guy who modifies players for them does it for a living. regards, Jon Johansen nanocrew.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 14:17:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20451 for dvd-discuss-outgoing; Fri, 22 Sep 2000 14:17:43 -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 OAA20448 for ; Fri, 22 Sep 2000 14:17:41 -0400 Message-ID: <20000922181908.26301.qmail@web6402.mail.yahoo.com> Received: from [207.1.61.238] by web6402.mail.yahoo.com; Fri, 22 Sep 2000 11:19:08 PDT Date: Fri, 22 Sep 2000 11:19:08 -0700 (PDT) From: Pete Broule Subject: Re: [dvd-discuss] Draft of part IV on 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 Probably no more than using DeCSS, if at all. But anyway, I was talking about Jon Johansen's reasons, not DeCSS' usability in general. Are you trying to say that he created DeCSS so that people in the USA could get around region coding? I don't think that's in the record. --- Michael.A.Rolenz@aero.org wrote: > > But the hacking in the USA would be illegal under the DMCA. > > > > > Pete Broule > > To: > dvd-discuss@eon.law.harvard.edu > Sent by: cc: > > owner-dvd-discuss@eon.law.h Subject: > Re: [dvd-discuss] Draft of part IV on > arvard.edu Reverse > Engineering > > > > > 09/22/00 07:52 AM > > Please respond to > > dvd-discuss > > > > > > > > > > --- "Robert S. Thau" wrote: > > > > *) One of his most important reasons for doing so was to get > around > > the "region coding" scheme mandated in licensed players by the > > CSS license. > > Was it really? IIRC, Johansen testified that like most DVD players > sold in Norway, his had been hacked to ignore region coding. > > __________________________________________________ > Do You Yahoo!? > Send instant messages & get email alerts with Yahoo! Messenger. > http://im.yahoo.com/ > > > __________________________________________________ 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 Sep 22 15:23:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25744 for dvd-discuss-outgoing; Fri, 22 Sep 2000 15:23:46 -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 PAA25725 for ; Fri, 22 Sep 2000 15:23:33 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA09006 for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 15:25:53 -0400 Date: Fri, 22 Sep 2000 15:25:47 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000922152547.A8977@eldritchpress.org> References: <20000921212749.17122.qmail@web514.mail.yahoo.com> <20000921212000.K7490@eldritchpress.org> <200009221307.JAA28614@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200009221307.JAA28614@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Sep 22, 2000 at 09:07:30AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 22, 2000 at 09:07:30AM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > > Let's talk about adding before cutting. > > > > In IV we need to explain what reverse engineering is, and what > > it was in this case. > > Agreed, but I think it's important to center that discussion on why > this particular instance of reverse engineering was happening at all, > briefly but clearly, before discussing any of the legal points; those > reasons are completely shaping our view of the case, but they will > not likely be obvious to the court. > > Johansen's direct testimony on the point establishes two very useful > facts: > > *) He was cooperating in an effort to build a player, not trying > to build tools for copying. (If copying of any kind, legitimate > fair use or otherwise, had anything to do with it, he could have > just used DOD ripper, which he examined and rejected). > > *) One of his most important reasons for doing so was to get around > the "region coding" scheme mandated in licensed players by the > CSS license. > > The latter could be used later on to explain how the plaintiffs' > licensing regime is *already* harming the interests of consumers, and > stifling public discourse by making foreign points of view difficult > to access (and likely inaccessible in the future). These two points definitely need to be added here in the reverse engineering section. Robert, do you want to take a stab at writing the text, or should I try to incorporate your suggestions myself? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 15:34:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26233 for dvd-discuss-outgoing; Fri, 22 Sep 2000 15:34:47 -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 PAA26214 for ; Fri, 22 Sep 2000 15:34:34 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA09042 for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 15:36:55 -0400 Date: Fri, 22 Sep 2000 15:36:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000922153649.B8977@eldritchpress.org> References: <39CB5668.68FD77DA@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from frank@funcom.com on Fri, Sep 22, 2000 at 04:24:16PM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 22, 2000 at 04:24:16PM +0200, Frank Andrew Stevenson wrote: > Aside from CA jurisdictional issues, what about Texas law in this case. > Suppose that a Texas court would hold that the RE was proper (through > declaratory judgement ?), while a a CA court rules it improper, can the CA > court then enforce the ruling, across State borders without regards to the > fact that a Texas court have found the same acts that the CA court seeks > to enjoin legal in Texas ? And how does pre-emption come into play in such a > case ? Which federal circuit would hear the case ? Is the ninth circuit > the only option, or can it land in the Texas circuit only through > seeking a declaratory judgment ? > > I guess I am not as much asking questions about procedures, as trying to > guess what the next move from the EFF team will be. > IANAL, but I think that in both Texas and California, reverse engineering is by law (Uniform Trade Secrets Act) not alone any "improper means." Plaintiffs must prove some other improper means, and they haven't produced any yet. The distinction between circuits in California and Texas might be that the California circuit might be more inclined to agree with the DVD CCA argument that their shrinkwrap license overrides the UTSA. At least one decision (ProCD) might sway them. On the other hand, the Texas circuit has the Vault v Quaid decision that stands in opposition to ProCD. In either case, DVD CCA is going to find the reverse engineering an albatross around their neck, I predict. Yet they continue to refer to it as if it were a criminal act. And they bring in the Kaplan decision triumphantly as if a decision about trafficking in copyright circumvention means applied to a case of reverse engineering of a trade secret. So I don't think the critical point is that the California judge rules reverse engineering proper or improper (the law is quite clear that it is proper) but rather how the courts rule on how a shrinkwrap license could overrule the statutes. It seems unfair that they could try to get Matt into California on false pretences, then shift the case to this other consideration. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 15:44:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA26652 for dvd-discuss-outgoing; Fri, 22 Sep 2000 15:44:12 -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 PAA26649 for ; Fri, 22 Sep 2000 15:44:06 -0400 Message-ID: <20000922194453.5663.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 22 Sep 2000 12:44:53 PDT Date: Fri, 22 Sep 2000 12:44:53 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Draft of part IV on 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 --- Jon Lech Johansen wrote: > regards, > Jon Johansen Hi Jon. What's the status of your "arrest" in Norway? Are charges still pending against you? In the course of your questioning, did anyone ever note that Norwegian Copyright law section 39i provides a right to reverse engineer and decompile for interoperability? It appears this cannot be given up by any contract. The exact language says "Bestemmelsene i denne paragraf kan ikke fravikes ved avtale.". See item 12 at http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000118_bing_norway_law_decl.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 Sep 22 16:09:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27165 for dvd-discuss-outgoing; Fri, 22 Sep 2000 16:09:19 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA27162 for ; Fri, 22 Sep 2000 16:09:16 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 13:10:14 -0700 Subject: Re: [dvd-discuss] 4C Entity To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 13:10:12 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 01:10:13 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes...the guild systems worked great for those in it.... Tom Vogt Sent by: To: dvd-discuss@eon.law.harvard.edu owner-dvd-discuss@eon.law.h cc: arvard.edu Subject: Re: [dvd-discuss] 4C Entity 09/22/00 10:50 AM Please respond to dvd-discuss Michael.A.Rolenz@aero.org wrote: > The problem with the MPAA, RIAA, and the rest are that they do not want to > relinquish the C O N T R O L that they have had for all these decades. almost. my best guess is that the MPAA wants to have the medieval guild systems back - with itself as the Movie Guild, of course. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 16:13:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27327 for dvd-discuss-outgoing; Fri, 22 Sep 2000 16:13:38 -0400 Received: from bnmsx1.bnventures.com (216-175-238-242.client.dsl.net [216.175.238.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA27323 for ; Fri, 22 Sep 2000 16:13:37 -0400 Received: from BONOBO ([192.168.29.232]) by bnmsx1.bnventures.com with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id S471AVR2; Fri, 22 Sep 2000 16:14:12 -0400 From: "Ernest Miller" To: Subject: [dvd-discuss] Motion to Dismiss Filed in Universal v. Hughes Date: Fri, 22 Sep 2000 16:16:23 -0500 Message-ID: <002e01c024da$5cfc6850$e81da8c0@bnventures.com> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 In-Reply-To: <20000922181908.26301.qmail@web6402.mail.yahoo.com> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A motion to dismiss has been filed in the Connecticut DeCSS case. More information at: http://www.ct2600.org From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 16:20:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27498 for dvd-discuss-outgoing; Fri, 22 Sep 2000 16:20:32 -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 QAA27495 for ; Fri, 22 Sep 2000 16:20:29 -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 QAA19585; Fri, 22 Sep 2000 16:23:15 -0400 Message-Id: <200009222023.QAA19585@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-reply-to: Your message of "Thu, 21 Sep 2000 10:01:23 PDT." <4.3.2.7.2.20000921091203.00b5eaa0@cyberpass.net> Date: Fri, 22 Sep 2000 16:22:45 -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 06:07 AM 9/21/2000 -0400, John Young wrote: : >We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's : >appeal of Judge Elfving's denial of his motion to quash the court's : >jurisdiction: : > : > http://cryptome.org/dvd-v-521-pqa.htm (94KB) : : Nit-pick, and not a criticism of John, but since many here are seeing the : process for the first time - and since I need to type something to "wake : up" my fingers ;-) - this is *not* an appeal. Jame's explanation is a fine example of worthwhile nitpicking, but I have another nit to pick with it. The explanation only has to do with California procedure. : After a final adverse judgment (Kaplan and 2600), and in a few other : situations, a party has an automatic right to have the lower court decision : reviewed by an appellate court. The appellate court may not agree with the : appellant, but so long as the appeal is timely filed and other procedural : rules are met, the appellate court must consider the argument. : : In contrast, there is no "right" to review by an appellate court of most : non-dispositive trial court rulings, including, as here, the denial of the : motion to quash service. (It is non-dispositive because Matt could win the : case on the merits in the lower court, and if he doesn't, he can raise the : jurisdictional issue on an appeal from the final judgment.) You'll note : that this is called a Petition for Writ of Mandate, not an appeal, and such : petitions, along with some others, fall under the aptly-named category of : extraordinary writs, not appeals. In many jurisdictions one can appeal from a non-dispositive order. The jurisdiction that I am most familiar with that permits such ``interlocutory'' appeals as a matter of course is New York. And to pick another nit, what Californians call a Petition for a Writ of Mandate, in most jurisdictions would be called a Mandamus Petition, although in New York ``Mandamus'' is called ``an Article 78 Proceeding in the Nature of Mandamus.'' The major use of Mandamus is not to review the decisions of lower courts, but to review and control the activities of administrative agencies and local agencies like zoning boards. : The principle difference is that the petitioning party has no right to have : the matter heard on the merits by the appellate court, no matter how : compelling the argument. It is absolutely, totally, 100% within the : discretion of the appellate court whether to hear the Petition, let alone : how it may decide it if it does hear it. Year in and year out, California : appellate courts issue what used to be called "postcard denials" (before : they went to computers and started using full sheets of paper and : envelopes) in >90% of writ petitions filed. (Since all they said was : "petition denied", with no explanation, a postcard was plenty large : enough.) In petitions such as this, the art, and 90% of the battle, is not : so much convincing the court that the petitioner is right on the : substantive argument, but rather convincing the court why it should do : something extraordinary, take the time to hear something it is not required : to hear, particularly when (and this is true) the appellate courts are so : backlogged as it is. California is quite unusual in the extent to which Petitions for a Writ of Mandate are used in lieu of appeals. That is why there are so many cases in the California appelate court reports entitled something like ``Doe v. The Superior Court'': technically in a mandamus action the defendant is the Court or Board or Agency whose decision is being reviewed. : : I've not yet read Matt's petition, so I have no comment on it, but since : many here seem to have a real interest in learning things about the law : (substance and procedure), I thought it worthwhile to give this explanation. : : And my fingers now are awake. ;-) : : -------------------------------------------------------------------- : 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 -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 16:22:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27612 for dvd-discuss-outgoing; Fri, 22 Sep 2000 16:22:40 -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 QAA27609 for ; Fri, 22 Sep 2000 16:22:38 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id OAA16721 for ; Fri, 22 Sep 2000 14:24:03 -0600 Date: Fri, 22 Sep 2000 14:24:03 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial In-Reply-To: <20000922172219.A3372@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 Turn the tables--sue them in a German court... On Fri, 22 Sep 2000, Tom Vogt wrote: > Frank Andrew Stevenson wrote: > > Aside from CA jurisdictional issues, what about Texas law in this case. > > Suppose that a Texas court would hold that the RE was proper (through > > declaratory judgement ?), > > wouldn't it be the NORWEGIAN court that decides this? or (more likely) a > german court? > > this one has me puzzled still: how can a CA court even decide whether or > not something that happened in EUROPE was legal or not? > > > -- 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 Sep 22 16:32:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27878 for dvd-discuss-outgoing; Fri, 22 Sep 2000 16:32:07 -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 QAA27875 for ; Fri, 22 Sep 2000 16:32:06 -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 QAA22203 for ; Fri, 22 Sep 2000 16:33:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA10002; Fri, 22 Sep 2000 16:33:34 -0400 (EDT) Date: Fri, 22 Sep 2000 16:33:34 -0400 (EDT) Message-Id: <200009222033.QAA10002@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Motion to Dismiss Filed in Universal v. Hughes In-Reply-To: <002e01c024da$5cfc6850$e81da8c0@bnventures.com> References: <20000922181908.26301.qmail@web6402.mail.yahoo.com> <002e01c024da$5cfc6850$e81da8c0@bnventures.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ernest Miller writes: > A motion to dismiss has been filed in the Connecticut DeCSS case. > > More information at: > > http://www.ct2600.org FWIW, the law brief in support of the motion parallels some of the discussion here --- in particular, in arguing that CSS is not an access control as the term was meant by Congress, and that DeCSS was meant to manufacture a player, not as a copying tool (though most of it is based on an argument we haven't seen in a while, that the MPAA's membership lacks standing because the DVDCCA is the real party in interest). It may be worthwhile to see how Real Lawyers(TM) deal with these issues... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 17:30:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29420 for dvd-discuss-outgoing; Fri, 22 Sep 2000 17:30:07 -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 RAA29417 for ; Fri, 22 Sep 2000 17:30:05 -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 RAA12020; Fri, 22 Sep 2000 17:28:35 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200009222023.QAA19585@samsara.law.cwru.edu> References: <200009222023.QAA19585@samsara.law.cwru.edu> Date: Fri, 22 Sep 2000 17:28:31 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Cc: junger@samsara.law.cwru.edu Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 4:22 PM -0400 9/22/2000, Peter D. Junger wrote: >... And to > pick another nit, what Californians call a Petition for a Writ of > Mandate, in most jurisdictions would be called a Mandamus Petition, > although in New York ``Mandamus'' is called ``an Article 78 Proceeding > in the Nature of Mandamus.'' The major use of Mandamus is not to > review the decisions of lower courts, but to review and control the > activities of administrative agencies and local agencies like zoning boards. The most important case in American constitutional law, Marbury v Madison (1803) http://www.bowdoin.edu/~sbodurt2/court/cases/marbury.html, dealt with a Writ of Mandamus. "At the last term, viz., December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, Esq. late attorney general of the United States, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia." Congress had passed a law giving the U.S. Supreme Court original jurisdiction in such cases (they had more time on their hands back then). The SC said Congress had no power to give them original jurisdiction and declared the law unconstitutional. It is very significant that the SC chose a case where they had complete power to carry out their decision, namely, they refused to issue the writ. No one could overturn what they did. Contrast this with what happened in 1954 with Brown v. Board of Education. By then the notion that the SC could declare a law unconstitutional, a state law in this case, was so well ingrained that the SC could count on the executive branch sending armed federal marshals in to enforce its edict. I think there is an important parallel with this case. The Internet is making its own Marbury v Madison by saying to the courts you cannot suppress information. We'll see if the precedent takes hold as strongly. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 17:37:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29668 for dvd-discuss-outgoing; Fri, 22 Sep 2000 17:37:53 -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 RAA29665 for ; Fri, 22 Sep 2000 17:37:51 -0400 Message-ID: <20000922213849.19034.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 22 Sep 2000 14:38:49 PDT Date: Fri, 22 Sep 2000 14:38:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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: > The distinction between circuits in California and Texas might > be that the California circuit might be more inclined to agree > with the DVD CCA argument that their shrinkwrap license overrides > the UTSA. At least one decision (ProCD) might sway them. On > the other hand, the Texas circuit has the Vault v Quaid decision > that stands in opposition to ProCD. While, not a shrinkwrap case, the 9th Circuit Court of Appeals has a great case that requires express assent to have a contract, which cites Step-Saver [the conflicting case to ProCD]: Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/9th/9717345.html "The failure to obtain the purchaser's express assent to those terms indicates the seller's agreement to do business on other terms -- those expressly agreed upon by the parties." Also, Arizona is in the 9th Circuit? Although this case concerned the Georgia (weird?) U.C.C., it from a 9th Circuit decision. Arizona Retail Sys. v The Software Link, 831 F. supp. 759 (D. AZ 1993) http://eon.law.harvard.edu/h2o/property/alternatives/arizona.html "To the extent that the parties had entered into an agreement before ARS opened the shrink wrap package, the license agreement would constitute a proposal for modification of the agreement pursuant to [U.C.C] section 2-209. Section 2-209 requires assent to proposed modifications and this court, like the court in Step-Saver, concludes that the assent must be express and cannot be inferred merely from a party's conduct in continuing with the agreement. " __________________________________________________ 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 Sep 22 18:01:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30172 for dvd-discuss-outgoing; Fri, 22 Sep 2000 18:01:54 -0400 Received: from nanocrew.net (nanocrew.net [195.204.80.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA30169 for ; Fri, 22 Sep 2000 18:01:50 -0400 Received: (qmail 513 invoked by uid 1000); 22 Sep 2000 22:00:01 -0000 Date: Sat, 23 Sep 2000 00:00:01 +0200 From: Jon Lech Johansen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000923000001.A25856@nanocrew.net> References: <20000922194453.5663.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.5i In-Reply-To: <20000922194453.5663.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Sep 22, 2000 at 12:44:53PM -0700 X-Website-You-Must-Visit: www.eff.org X-Sender: jon@nanocrew.net Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 22, 2000 at 12:44:53PM -0700, Bryan Taylor wrote: > > What's the status of your "arrest" in Norway? Are charges still pending > against you? Yes, they're still pending. As Frank mentioned, Okokrim received a report back from their external "experts" last week. I'm pretty sure they've managed to cook up some reason as to why the charges are valid and proceed to indict me. > In the course of your questioning, did anyone ever note that Norwegian > Copyright law section 39i provides a right to reverse engineer and > decompile for interoperability? Nope. Even if Norwegian law didn't provide me with this right, the European Union does (Directive on Software Copyright Protection, Article 6). I couldn't find this directive on the EU website (probably because I didn't bother to look for more than 10 secs). I searched with google and found it here: http://www.smithlyons.ca/Publications/Articles/IT_99_10_2.htm#N_56_ Even though we are not a member of the European Union (well, we are, we just can't vote), we have accepted mostly every piece of legislation they've passed our way. I don't know if this one has gone through, but I'd assume so since it's from 1991 (but that's probably not old in the world of bureaucracy :). > It appears this cannot be given up by any contract. The exact language > says "Bestemmelsene i denne paragraf kan ikke fravikes ved avtale.". > See item 12 at > http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000118_bing_norway_law_decl.html It really doesn't matter when you never agreed to any license agreement. The only time I've ever used Win9x for any real (more or less) work is when I had to keep a seperate computer for dvd playback next to our tv. Whenever I'm forced to use Windows, I go with NT. Xing DVD Player doesn't install on anything else than Win9x. The only option when using NT is to decompile the installation package (or modify the installation package to not check OS, which takes more time and still shows you that disgusting msgbox). They can take their EULA and . The best part of the complaint filed by the MPA is where they offer legal and technical assistance to Okokrim. Perhaps I should call Okokrim and offer them my assistance? On a side note, Okokrim has been coming out with lots of nice suggestions lately. Forcing all Internet users to identify themselves using "electronic identity cards" (or something). Banning anonymous prepaid sim-cards (for use with cellphones). Forcing ISPs to keep logs for 1 year. They recently had a seminar where they had invited a person called Frank Jones as speaker, head of a company called Codex. At the end of this seminar he demonstrated to the utterly clueless Okokrim people how he "cracked PGP" in less than 5 minutes. A background check on Frank Jones reveals that he's probably nothing more than a big hoax (like the PGP cracking didn't already indictate that). http://www.felons.org/pub/misc/frank.htm Seriously, from a crimeunit like Okokrim, what can you seriously expect? regards, Jon Johansen nanocrew.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 18:32:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30857 for dvd-discuss-outgoing; Fri, 22 Sep 2000 18:32:55 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30854 for ; Fri, 22 Sep 2000 18:32:54 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 15:33:45 -0700 Subject: Re: [dvd-discuss] Motion to Dismiss Filed in Universal v. Hughes To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Fri, 22 Sep 2000 15:33:42 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/22/2000 03:33:44 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu As I was scanning the motion I was struck by some of the statements regarding the fact that purchasers of DVDs do not have access to all parts of the DVD because of regional coding (time tagged advertisements). It reminded me of something someone once told me about the IBM 360/370 series computer. When people bought the stripped down models there was no difference between the hardware of it and the high end model. What was different was the keys put into the OS that enabled the hardware to function. I was told that they lost a lawsuit on that "business model". The court ruled that you paid for the hardware you have to be able to use it (probably because you are also paying maintainance and repair on it too) Does anybody know anything about that? It may be applicable. "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: [dvd-discuss] Motion to Dismiss Filed arvard.edu in Universal v. Hughes 09/22/00 01:36 PM Please respond to dvd-discuss Ernest Miller writes: > A motion to dismiss has been filed in the Connecticut DeCSS case. > > More information at: > > http://www.ct2600.org FWIW, the law brief in support of the motion parallels some of the discussion here --- in particular, in arguing that CSS is not an access control as the term was meant by Congress, and that DeCSS was meant to manufacture a player, not as a copying tool (though most of it is based on an argument we haven't seen in a while, that the MPAA's membership lacks standing because the DVDCCA is the real party in interest). It may be worthwhile to see how Real Lawyers(TM) deal with these issues... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 18:50:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31268 for dvd-discuss-outgoing; Fri, 22 Sep 2000 18:50:07 -0400 Received: from smtp.snet.net (smtp.snet.net [204.60.6.55]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA31265 for ; Fri, 22 Sep 2000 18:50:06 -0400 Received: from 25915 (252.5.252.64.snet.net [64.252.5.252]) by smtp.snet.net (8.9.3/8.9.3/SNET-bmx-1.3/D-1.7/O-1.6) with SMTP id SAA10954 for ; Fri, 22 Sep 2000 18:51:34 -0400 (EDT) Message-ID: <007501c024e7$b7a89d20$d559fea9@25915> From: "Ernest Miller" To: Subject: [dvd-discuss] Universal v Hughes - Motion to Dismiss - New PDF Date: Fri, 22 Sep 2000 18:51:59 -0400 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.50.4133.2400 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 CT2600 has posted the Motion to Dismiss with footnotes this time: www.ct2600.org From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 18:53:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31434 for dvd-discuss-outgoing; Fri, 22 Sep 2000 18:53:36 -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 SAA31428 for ; Fri, 22 Sep 2000 18:53:24 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA09249 for dvd-discuss@eon.law.harvard.edu; Fri, 22 Sep 2000 18:55:47 -0400 Date: Fri, 22 Sep 2000 18:55:42 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Message-ID: <20000922185542.C8977@eldritchpress.org> References: <20000922194453.5663.qmail@web512.mail.yahoo.com> <20000923000001.A25856@nanocrew.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000923000001.A25856@nanocrew.net>; from jon@nanocrew.net on Sat, Sep 23, 2000 at 12:00:01AM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Sep 23, 2000 at 12:00:01AM +0200, Jon Lech Johansen wrote: >... > http://www.felons.org/pub/misc/frank.htm >Partial List of Recent Fraud Victims >Banco De Brazil $ 94,000.00 >Oakhurst/Stratton $ 51,358.00 >New York Yellow Pages $ 53,000.00 >Sound Surveillance $ 47,210.00 >Allied Outdoor $ 25,000.00 >ACTT Inc. - Leonid B.Volfson $ 20,000.00 >Thomas Publishing $ 19,544.00 >Technical Services Agency $ 13,500.00 >New Jersey Bell $ 14,300.00 >Litton Electronics $ 12,340.00 >Deerfield Productions $ 12,000.00 >Sony Corporation $ 11,240.00 ^^^^^^^^^^^^^^^^ So now the MPAA should endorse his advice? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 21:56:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA04754 for dvd-discuss-outgoing; Fri, 22 Sep 2000 21:56:02 -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 VAA04751 for ; Fri, 22 Sep 2000 21:55:55 -0400 Received: from ppp.anonymizer.com (c01-192.015.popsite.net [64.24.72.192]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA01193; Fri, 22 Sep 2000 18:59:20 -0700 (PDT) Message-Id: <4.3.2.7.2.20000922183437.00ab5390@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Fri, 22 Sep 2000 18:57:13 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Cc: junger@samsara.law.cwru.edu In-Reply-To: <200009222023.QAA19585@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 04:22 PM 9/22/2000 -0400, Peter D. Junger wrote: >"James S. Tyre" writes: > >: At 06:07 AM 9/21/2000 -0400, John Young wrote: >: >We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's >: >appeal of Judge Elfving's denial of his motion to quash the court's >: >jurisdiction: >: > >: > http://cryptome.org/dvd-v-521-pqa.htm (94KB) >: >: Nit-pick, and not a criticism of John, but since many here are seeing the >: process for the first time - and since I need to type something to "wake >: up" my fingers ;-) - this is *not* an appeal. > > Jame's explanation is a fine example of worthwhile nitpicking, but I have > another nit to pick with it. The explanation only has to do with > California procedure. But of course. ;-) It's a California case, I'm a California lawyer, we're in my sandbox now. >: >: In contrast, there is no "right" to review by an appellate court of most >: non-dispositive trial court rulings, including, as here, the denial of the >: motion to quash service. (It is non-dispositive because Matt could win the >: case on the merits in the lower court, and if he doesn't, he can raise the >: jurisdictional issue on an appeal from the final judgment.) You'll note >: that this is called a Petition for Writ of Mandate, not an appeal, and such >: petitions, along with some others, fall under the aptly-named category of >: extraordinary writs, not appeals. > > In many jurisdictions one can appeal from a non-dispositive order. The > jurisdiction that I am most familiar with that permits such >``interlocutory'' appeals as a matter of course is New York. And to > pick another nit, what Californians call a Petition for a Writ of > Mandate, in most jurisdictions would be called a Mandamus Petition, > although in New York ``Mandamus'' is called ``an Article 78 Proceeding > in the Nature of Mandamus.'' Yeah, Dan Steinberg was asking me about that. In schools, we're English only, but in Courts, we're Latin optional. We are, however, at least close to Yiddish mandatory. (The most, ahem, authoritative articles on the use of Yiddish in the courts are by Gerry Uelman, and by Eugene Volokh and Alex Kozinski, Californians all. A California appellate judge once marvelled at how I managed to blend well English, Latin and Yiddish in a single sentence. ;-) > California is quite unusual in the extent to which Petitions for a Writ > of Mandate are used in lieu of appeals. That is why there are so > many cases in the California appelate court reports entitled something > like ``Doe v. The Superior Court'': technically in a mandamus action the > defendant is the Court or Board or Agency whose decision is being > reviewed. Yep, as MacN loves to remind me, we are unusual in many ways. In Smith v. Jones, if Smith wants to take a writ on an adverse non-appealable order, the caption in the appellate court would be Smith v. Superior Court, Jones, Real Party in Interest. It is rare, but not unheard of, that the nominal defendant, the court, will defend itself. The defense of the court's order usually is provided by Jones. Personally though, I like in rem proceedings with captions such as People v. $123,495.62 cash. There is something viscerally satisfying in seeing that, when it's the People v. the Money, the People almost always win. -------------------------------------------------------------------- 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 Sep 22 22:44:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05693 for dvd-discuss-outgoing; Fri, 22 Sep 2000 22:44:38 -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 WAA05690 for ; Fri, 22 Sep 2000 22:44:37 -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 WAA04216 for ; Fri, 22 Sep 2000 22:46:02 -0400 (EDT) Message-ID: <39CC1969.8C1B017C@mediaone.net> Date: Fri, 22 Sep 2000 22:46:01 -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] Pavlovich Appeal of Quash Motion Denial References: <4.3.2.7.2.20000922183437.00ab5390@cyberpass.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 "James S. Tyre" wrote: ... > > Personally though, I like in rem proceedings with captions such as People > v. $123,495.62 cash. There is something viscerally satisfying in seeing > that, when it's the People v. the Money, the People almost always win. > ... Once we get over the language barriers, lawyers are going to understand programmers just fine. (Alright, so you might find some of the things we laugh at just plain unfunny...) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 23:51:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07045 for dvd-discuss-outgoing; Fri, 22 Sep 2000 23:51:48 -0400 Received: from mail.travel-net.com (root@[204.92.71.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07042 for ; Fri, 22 Sep 2000 23:51:46 -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 XAA19791 for ; Fri, 22 Sep 2000 23:54:37 -0400 Message-ID: <39CC2919.DA0555BC@travel-net.com> Date: Fri, 22 Sep 2000 23:52:57 -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] Pavlovich Appeal of Quash Motion Denial References: <4.3.2.7.2.20000922183437.00ab5390@cyberpass.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 "James S. Tyre" wrote: > At 04:22 PM 9/22/2000 -0400, Peter D. Junger wrote: > >"James S. Tyre" writes: > > > >: At 06:07 AM 9/21/2000 -0400, John Young wrote: > >: >We offer in the CA case, DVD CCA v. 521, Matthew Pavlovich's > >: >appeal of Judge Elfving's denial of his motion to quash the court's > >: >jurisdiction: > >: > > >: > http://cryptome.org/dvd-v-521-pqa.htm (94KB) > >: > >: Nit-pick, and not a criticism of John, but since many here are seeing the > >: process for the first time - and since I need to type something to "wake > >: up" my fingers ;-) - this is *not* an appeal. > > > > Jame's explanation is a fine example of worthwhile nitpicking, but I have > > another nit to pick with it. The explanation only has to do with > > California procedure. > > But of course. ;-) It's a California case, I'm a California lawyer, we're > in my sandbox now. > > >: > >: In contrast, there is no "right" to review by an appellate court of most > >: non-dispositive trial court rulings, including, as here, the denial of the > >: motion to quash service. (It is non-dispositive because Matt could win the > >: case on the merits in the lower court, and if he doesn't, he can raise the > >: jurisdictional issue on an appeal from the final judgment.) You'll note > >: that this is called a Petition for Writ of Mandate, not an appeal, and such > >: petitions, along with some others, fall under the aptly-named category of > >: extraordinary writs, not appeals. > > > > In many jurisdictions one can appeal from a non-dispositive order. The > > jurisdiction that I am most familiar with that permits such > >``interlocutory'' appeals as a matter of course is New York. And to > > pick another nit, what Californians call a Petition for a Writ of > > Mandate, in most jurisdictions would be called a Mandamus Petition, > > although in New York ``Mandamus'' is called ``an Article 78 Proceeding > > in the Nature of Mandamus.'' > > Yeah, Dan Steinberg was asking me about that. In schools, we're English > only, but in Courts, we're Latin optional. We are, however, at least close > to Yiddish mandatory. (The most, ahem, authoritative articles on the use > of Yiddish in the courts are by Gerry Uelman, and by Eugene Volokh and Alex > Kozinski, Californians all. A California appellate judge once marvelled at > how I managed to blend well English, Latin and Yiddish in a single > sentence. ;-) > > > California is quite unusual in the extent to which Petitions for a Writ > > of Mandate are used in lieu of appeals. That is why there are so > > many cases in the California appelate court reports entitled something > > like ``Doe v. The Superior Court'': technically in a mandamus action the > > defendant is the Court or Board or Agency whose decision is being > > reviewed. > > Yep, as MacN loves to remind me, we are unusual in many ways. > > In Smith v. Jones, if Smith wants to take a writ on an adverse > non-appealable order, the caption in the appellate court would be Smith v. > Superior Court, Jones, Real Party in Interest. It is rare, but not unheard > of, that the nominal defendant, the court, will defend itself. The defense > of the court's order usually is provided by Jones. > > Personally though, I like in rem proceedings with captions such as People > v. $123,495.62 cash. There is something viscerally satisfying in seeing > that, when it's the People v. the Money, the People almost always win. Ah but when the money files an appeal.......... -- Dan Steinberg SYNTHESIS:Law & Technology 35, du Ravin phone: (613) 794-5356 Chelsea, Quebec fax: (819) 827-4398 J9B 1N1 e-mail:synthesis@vrx.net From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 22 23:56:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07237 for dvd-discuss-outgoing; Fri, 22 Sep 2000 23:56:51 -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 XAA07234 for ; Fri, 22 Sep 2000 23:56:50 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13cgSB-0008Lj-00; Fri, 22 Sep 2000 20:58:19 -0700 Date: Fri, 22 Sep 2000 20:58:19 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] InterVideo demonstrates licensed Linux player Message-ID: <20000922205819.J7550@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i X-Accept-Language: en,la,eo Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu LWN reports that InterVideo demonstrated to the public a licensed Linux software DVD player. That doesn't mean it's available, except to OEMs. I think this is the best-known long-time vaporware software player. Lots of people have treated it as really existing. http://www.newsalert.com/bin/story?StoryId=CoCbnqbWbq0Dusda4m The press release does not make any mention of concepts such as "lawsuit" or "open source". You know, the courts may think of "available" in the computer technology world as "available to be licensed by OEMs". I'm getting into the habit of thinking of "available" as "on a public FTP site", or, maybe, in really unusual cases, "on the shelf at Fry's". That's a big discrepancy. -- 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 Sep 23 00:22:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07752 for dvd-discuss-outgoing; Sat, 23 Sep 2000 00:22:47 -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 AAA07749 for ; Sat, 23 Sep 2000 00:22:44 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13cgr9-0008Pu-00; Fri, 22 Sep 2000 21:24:07 -0700 Date: Fri, 22 Sep 2000 21:24:07 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000922212407.K7550@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921223425.B309@lemuria.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000921223425.B309@lemuria.org>; from tom@lemuria.org on Thu, Sep 21, 2000 at 10:34:25PM +0200 X-Accept-Language: en,la,eo Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tom Vogt writes: > it most likely is. for example, germany has a law in what is our equivalent > to the constitution (i.e. a "top" law) that no german citizen will ever be > handed over to foreign authorities. Isn't it the "bottom" law (Grundgesetz)? Is my etymology wrong? -- 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 Sep 23 00:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08233 for dvd-discuss-outgoing; Sat, 23 Sep 2000 00:28:14 -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 AAA08230 for ; Sat, 23 Sep 2000 00:28:13 -0400 Received: (from daemon@localhost) by smtp05.primenet.com (8.9.3/8.9.3) id VAA03345 for ; Fri, 22 Sep 2000 21:29:58 -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 smtpdAAApLaizg; Fri Sep 22 21:29:48 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 VAA07501 for ; Fri, 22 Sep 2000 21:29:27 -0700 From: "D. C. Sessions" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Date: Fri, 22 Sep 2000 21:28:49 -0700 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: <20000922213849.19034.qmail@web512.mail.yahoo.com> In-Reply-To: <20000922213849.19034.qmail@web512.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00092221292900.03150@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, 22 Sep 2000, Bryan Taylor wrote: > --- Eric Eldred wrote: > > > The distinction between circuits in California and Texas might > > be that the California circuit might be more inclined to agree > > with the DVD CCA argument that their shrinkwrap license overrides > > the UTSA. At least one decision (ProCD) might sway them. On > > the other hand, the Texas circuit has the Vault v Quaid decision > > that stands in opposition to ProCD. > > While, not a shrinkwrap case, the 9th Circuit Court of Appeals has a > great case that requires express assent to have a contract, which cites > Step-Saver [the conflicting case to ProCD]: > > Expeditors v. Official Creditors 166 F.3d 1012 (9th Cir 1999) > http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/9th/9717345.html > > "The failure to obtain the purchaser's express assent to those terms > indicates the seller's agreement to do business on other terms -- those > expressly agreed upon by the parties." > > Also, Arizona is in the 9th Circuit? Although this case concerned the > Georgia (weird?) U.C.C., it from a 9th Circuit decision. > Arizona Retail Sys. v The Software Link, 831 F. supp. 759 (D. AZ 1993) > http://eon.law.harvard.edu/h2o/property/alternatives/arizona.html Yes, Arizona (like most of the West) is in the Ninth. -- | 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 Sep 23 07:07:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA15814 for dvd-discuss-outgoing; Sat, 23 Sep 2000 07:07:10 -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 HAA15808 for ; Sat, 23 Sep 2000 07:07:08 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 23 Sep 2000 12:57:35 +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; Sat, 23 Sep 2000 12:40:48 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 23 Sep 2000 12:40:48 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000923124048.B5993@lemuria.org> References: <200009211018.GAA26860@granger.mail.mindspring.net> <39CA534D.661FDF35@easybase.com> <20000921223425.B309@lemuria.org> <20000922212407.K7550@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000922212407.K7550@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: > > it most likely is. for example, germany has a law in what is our equivalent > > to the constitution (i.e. a "top" law) that no german citizen will ever be > > handed over to foreign authorities. > > Isn't it the "bottom" law (Grundgesetz)? Is my etymology wrong? you may be right. yes, it's "grundgesetz". I think "grund" would better translate as "basic" or "fundamental" than "bottom" here. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 07:07:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA15807 for dvd-discuss-outgoing; Sat, 23 Sep 2000 07:07:08 -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 HAA15787 for ; Sat, 23 Sep 2000 07:07:06 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 23 Sep 2000 12:57:35 +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; Sat, 23 Sep 2000 12:39:51 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 23 Sep 2000 12:39:51 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial Message-ID: <20000923123951.A5993@lemuria.org> References: <20000922172219.A3372@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 John Galt wrote: > Turn the tables--sue them in a German court... give me two things and I'll file suit on monday morning: 1 - the necessary money 2 - something to sue over that has a good chance of winning -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 09:20:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA18579 for dvd-discuss-outgoing; Sat, 23 Sep 2000 09:20:22 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA18576 for ; Sat, 23 Sep 2000 09:20:22 -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 JAA26915 for ; Sat, 23 Sep 2000 09:21:51 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA08004; Sat, 23 Sep 2000 09:21:51 -0400 (EDT) Date: Sat, 23 Sep 2000 09:21:51 -0400 (EDT) Message-Id: <200009231321.JAA08004@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] InterVideo demonstrates licensed Linux player In-Reply-To: <20000922205819.J7550@zork.net> References: <20000922205819.J7550@zork.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen writes: > LWN reports that InterVideo demonstrated to the public a licensed > Linux software DVD player. That doesn't mean it's available, except > to OEMs. Hmmm... perhaps another reason to stress region coding, and other reasons beyond "linux availability" for wanting the LiViD player... or at least to rephrase that argument as "providing support for DVD viewing on platforms where licensed players are unavailable to the consumer, *or inadequate*." rst From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 10:21:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA19710 for dvd-discuss-outgoing; Sat, 23 Sep 2000 10:21:05 -0400 Received: from hotmail.com (f92.law9.hotmail.com [64.4.9.92]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA19707 for ; Sat, 23 Sep 2000 10:21:04 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sat, 23 Sep 2000 07:21:58 -0700 Received: from 38.30.241.194 by lw9fd.law9.hotmail.msn.com with HTTP; Sat, 23 Sep 2000 14:21:58 GMT X-Originating-IP: [38.30.241.194] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] A four-pronged error in the ruling Date: Sat, 23 Sep 2000 10:21:58 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 23 Sep 2000 14:21:58.0280 (UTC) FILETIME=[A1CE0080:01C02569] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Recently there has been some discussion of Kaplan's finding that "the only lawful way of obtain [DVD crypto keys] is to enter a license with the DVD CCA..." Robert noted that reverse engineering is another lawfully way. The statute provides for four lawful ways! 1201 (c)(4) allows you to be told the keys, or to read them in a publication. 1201 (e) allows law enforcement to gather them as evidence in a crime investigation. 1201 (f)(2) allows you to reverse engineer to obtain them. 1201 (g)(2) allows you to find them through crypto analysis. I think that we can use this as a nice club for the appeals brief. Something like: The Court's broad finding that DVD cryptographic keys cannot be lawfully found by any of the exceptions explicit in the statue shows that Court believes those exceptions can never be applied regardless of circumstances. I believe that we should consider including a decimal representation of one of the player keys in order to illustrate just what a key is, and how prohibiting publication of it would be a grave injustice to the first amendment. After all, a player key by itself is SO far from functional that nobody could argue that it is a circumvention device. _________________________________________________________________________ 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 Sat Sep 23 10:34:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA20387 for dvd-discuss-outgoing; Sat, 23 Sep 2000 10:34:39 -0400 Received: from hotmail.com (f294.law9.hotmail.com [64.4.8.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA20384 for ; Sat, 23 Sep 2000 10:34:38 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sat, 23 Sep 2000 07:35:38 -0700 Received: from 38.30.241.194 by lw9fd.law9.hotmail.msn.com with HTTP; Sat, 23 Sep 2000 14:35:38 GMT X-Originating-IP: [38.30.241.194] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] counter offensive? Date: Sat, 23 Sep 2000 10:35:38 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 23 Sep 2000 14:35:38.0510 (UTC) FILETIME=[8AB32AE0:01C0256B] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am really impressed with the motion to dismiss in the CT case. Probably because I love to argue reducto ad absurdum, and they do so beautifully. Anyway, it got me thinking. Presently the movie studies may be in a vulnerable position which they have created for themselves. They believe that no persons are authorized to decrypt, and that they can't even give such authorization, yet they sell encrypted movies to the public. As the motion in CT showed, this creates the position that buyers of DVDs receive almost nothing for the purchase price of an encrypted DVD. Presently there is a NY ruling upholding this view, and plenty of movie studio testimony to support it to. A own a few Warner Bros. DVD's that I bought at Best Buy about a year ago (before I learned of all this evil - I've been boycotting for quite some time now). I would be happy to perform the absurd step of taking them to Best Buy and trying to get a refund. Surely Best Buy isn't going to take them back now, but should be willing to sign a document stating that they won't refund my money. Now what is to stop me from suing Warner Bros in small claims court in my home state for fraud in order to get my money back? I have their testimony (from the NY case) that I am not authorized to decrypt, but come October, 1201 (a)(1) says A PERSON may not decrypt without authority Warner won't give it to me, so there is no longer any lawful way to watch the movie that I "own". At the time of sale, it was represented to be a movie available for home viewing without restriction, and there was no indication that it was encrypted, or that authority to decrypt it for viewing was not granted at the time of sale. Maybe some lawyers on this list can suggest the risks/rewards of going to small claims court over this. Imagine if 1,000 or 5,000 people all over the country went to their small claims court in October-November! _________________________________________________________________________ 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 Sat Sep 23 11:17:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21280 for dvd-discuss-outgoing; Sat, 23 Sep 2000 11:17:02 -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 LAA21277 for ; Sat, 23 Sep 2000 11:17:01 -0400 Received: from lemuria.org by mail.lemuria.org via rsmtp with bsmtp id for ; Sat, 23 Sep 2000 17:10:30 +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; Sat, 23 Sep 2000 17:07:22 +0200 (MEST) (Smail-3.2 1996-Jul-4 #1 built 1999-Nov-8) Date: Sat, 23 Sep 2000 17:07:22 +0200 From: Tom Vogt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] InterVideo demonstrates licensed Linux player Message-ID: <20000923170722.A6624@lemuria.org> References: <20000922205819.J7550@zork.net> <200009231321.JAA08004@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <200009231321.JAA08004@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: > Hmmm... perhaps another reason to stress region coding, and other > reasons beyond "linux availability" for wanting the LiViD player... > or at least to rephrase that argument as "providing support for DVD > viewing on platforms where licensed players are unavailable to the > consumer, *or inadequate*." that last would include the windows platform. I have evaluated five DVD players for windows, and they all come short of what I want. a free software player, where I can add the features I want myself (and they're often not overly complex, things as simple as switching the language with a hotkey) would be perfect. -- "The net treats censorship as a malfunction and re-routes around it." (John Gilmore) From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 13:08:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23798 for dvd-discuss-outgoing; Sat, 23 Sep 2000 13:08:47 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23795 for ; Sat, 23 Sep 2000 13:08:45 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 23 Sep 2000 10:10:01 -0700 Subject: Re: [dvd-discuss] Pavlovich Appeal of Quash Motion Denial To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Sat, 23 Sep 2000 10:09:59 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/23/2000 10:10:00 AM MIME-Version: 1.0 Content-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 suspect the lawyers probably find "IANAL" pretty amusing too..... Sphere To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: Re: [dvd-discuss] Pavlovich Appeal of arvard.edu Quash Motion Denial 09/22/00 07:47 PM Please respond to dvd-discuss "James S. Tyre" wrote: ... > > Personally though, I like in rem proceedings with captions such as People > v. $123,495.62 cash. There is something viscerally satisfying in seeing > that, when it's the People v. the Money, the People almost always win. > ... Once we get over the language barriers, lawyers are going to understand programmers just fine. (Alright, so you might find some of the things we laugh at just plain unfunny...) -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 13:26:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24478 for dvd-discuss-outgoing; Sat, 23 Sep 2000 13:26:46 -0400 Received: from mhultra.aero.org (mhultra.aero.org [130.221.88.102]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24475 for ; Sat, 23 Sep 2000 13:26:44 -0400 From: Michael.A.Rolenz@aero.org Received: from ladir01.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 23 Sep 2000 10:27:55 -0700 Subject: Re: [dvd-discuss] InterVideo demonstrates licensed Linux player To: dvd-discuss@eon.law.harvard.edu X-Mailer: Lotus Notes Release 5.0.3 March 21, 2000 Message-Id: Date: Sat, 23 Sep 2000 10:27:54 -0700 X-MIMETrack: Serialize by Router on ladir01/AeroNet/Aerospace/US(Release 5.0.4 |June 8, 2000) at 09/23/2000 10:27:54 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I agree. Available to OEMs is NOT available. And their website states "LinDVD is now available to manufacturers for evaluation and integration." That's not LINUX as far as I'm concerned. Also check this out "InterVideo is actively engaged with the Linux community, Linux platform manufacturers, and DVD content providers to deliver a robust, high quality DVD software player solution, and is committed to providing outstanding multimedia software solutions for the Linux operating system. InterVideo is actively recruiting talented Linux gurus to develop sophisticated multimedia applications that will make Linux fun and accessible to everyone. " Now that's insulting. Fun and accessible.....that's what I use Windows for....when I want P O W E R, I turn to UNIX based systems. One thing that has been bothering me about the whole DVD licensing is that it truly is restricting competition AND who can compete. We have DVDs that are being sold to the public and presumably have a known format (e.g., DVD demystified) yet only those who are willing to pay the $10,000 licensing fee can create DVD players. Reverse engineering in such a way that one doesn't need to pay the licensing fee has been a time honored tradition in the USA (upheld in court, I remember reading a case about locks in the last few months.). It has been recognized that it spurs competition. The $10,000 fee is enough that it's a pittance to a company or to the DVDCCA but it's enough that a tinkerer isn't going to pay it. Some of the best inventions have been created by tinkerers. Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Sent by: cc: owner-dvd-discuss@eon.law.h Subject: [dvd-discuss] InterVideo demonstrates arvard.edu licensed Linux player 09/22/00 08:59 PM Please respond to dvd-discuss LWN reports that InterVideo demonstrated to the public a licensed Linux software DVD player. That doesn't mean it's available, except to OEMs. I think this is the best-known long-time vaporware software player. Lots of people have treated it as really existing. http://www.newsalert.com/bin/story?StoryId=CoCbnqbWbq0Dusda4m The press release does not make any mention of concepts such as "lawsuit" or "open source". You know, the courts may think of "available" in the computer technology world as "available to be licensed by OEMs". I'm getting into the habit of thinking of "available" as "on a public FTP site", or, maybe, in really unusual cases, "on the shelf at Fry's". That's a big discrepancy. -- 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 Sep 23 18:54:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04532 for dvd-discuss-outgoing; Sat, 23 Sep 2000 18:54:22 -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 SAA04529 for ; Sat, 23 Sep 2000 18:54:20 -0400 Received: from Jana-Server (user-38ld7n1.dialup.mindspring.com [209.86.158.225]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id SAA28399 for ; Sat, 23 Sep 2000 18:55:46 -0400 (EDT) Message-ID: <39CD34DE.51C51EF1@mindspring.com> Date: Sat, 23 Sep 2000 18:55:27 -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: [dvd-discuss] [dvd-discussHatch disagrees with White House brief? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.nytimes.com/2000/09/22/technology/22CYBERLAW.html "The government's view of the law is not monolithic, however. Senator Orrin Hatch, Republican of Utah and chairman of the Senate Judiciary Committee, recently wrote a letter to the Court of Appeals stating that the government's brief does not necessarily express the views of the Congress in the matter. " Anyone seen the letter he wrote? mickeym From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 19:58:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA05969 for dvd-discuss-outgoing; Sat, 23 Sep 2000 19:58:26 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA05966 for ; Sat, 23 Sep 2000 19:58:24 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id TAA21475 for ; Sat, 23 Sep 2000 19:59:55 -0400 (EDT) Message-ID: <39CD43FA.2A1A0CAD@mediaone.net> Date: Sat, 23 Sep 2000 19:59:54 -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] [dvd-discussHatch disagrees with White House brief? References: <39CD34DE.51C51EF1@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: > > http://www.nytimes.com/2000/09/22/technology/22CYBERLAW.html > > "The government's view of the law is not monolithic, however. Senator > Orrin Hatch, Republican of Utah and chairman of the Senate Judiciary > Committee, recently wrote a letter to the Court of Appeals stating that > the government's brief does not necessarily express the views of the > Congress in the matter. " > > Anyone seen the letter he wrote? > > mickeym The last paragraph of the article: "Litman added that if Napster won its point on appeal the losing side could go to Congress and ask for an amendment requiring Napster and its clones pay a royalty tax compensating rights holders for lost recordings. She said the tax could be based on the frequency of MP3 music downloads." How is Gnutella going to pay the tax? -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 22:34:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09224 for dvd-discuss-outgoing; Sat, 23 Sep 2000 22:34:33 -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 WAA09221 for ; Sat, 23 Sep 2000 22:34:31 -0400 Received: from Jana-Server (user-38ld7vm.dialup.mindspring.com [209.86.159.246]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id WAA01139 for ; Sat, 23 Sep 2000 22:36:01 -0400 (EDT) Message-ID: <39CD687C.A22F54AD@mindspring.com> Date: Sat, 23 Sep 2000 22:35:41 -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] Hatch disagrees with White House brief? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > > > http://www.nytimes.com/2000/09/22/technology/22CYBERLAW.html > > > > "The government's view of the law is not monolithic, however. > Senator > > Orrin Hatch, Republican of Utah and chairman of the Senate Judiciary > > > Committee, recently wrote a letter to the Court of Appeals stating > that > > the government's brief does not necessarily express the views of the > > > Congress in the matter. " > > > > Anyone seen the letter he wrote? > > > > mickeym > > The last paragraph of the article: > > "Litman added that if Napster won its point on appeal the losing side > could go to Congress and ask for an amendment requiring Napster and > its clones pay a royalty tax compensating rights holders for lost > recordings. She said the tax could be based on the frequency of MP3 > music downloads." > > > How is Gnutella going to pay the tax? > A victory for Napster might mean that all motherboard manufacturers and OS companies would owe the royalty, and new PC's would have serial copy management installed. mickeym From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 23 22:35:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09241 for dvd-discuss-outgoing; Sat, 23 Sep 2000 22:35:30 -0400 Received: from hotmail.com (f94.law10.hotmail.com [64.4.15.94]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09229 for ; Sat, 23 Sep 2000 22:35:28 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Sat, 23 Sep 2000 19:36:29 -0700 Received: from 209.90.98.36 by lw10fd.law10.hotmail.msn.com with HTTP; Sun, 24 Sep 2000 02:36:29 GMT X-Originating-IP: [209.90.98.36] From: "K Phill" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd-discussHatch disagrees with White House brief? Date: Sat, 23 Sep 2000 20:36:29 MDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 24 Sep 2000 02:36:29.0239 (UTC) FILETIME=[3E24AC70:01C025D0] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >"The government's view of the law is not monolithic, however. Senator >Orrin Hatch, Republican of Utah and chairman of the Senate Judiciary >Committee, recently wrote a letter to the Court of Appeals stating that >the government's brief does not necessarily express the views of the >Congress in the matter. " Hi; I live in Utah where Senator Hatch is up for re-election. As someone who once knew Senator Hatch, I'm really sorry to say that he _is not_ your fair use friend. As head of the Judiciary Committee he was the principal author of the DMCA. The very piece of vile legislation we are combating here. Also, he was the one that sponsored the Sonny Bono Copyright Term Extension Act (CTEA). When MPAA and a few pals roll into town he is only too willing to roll over and support their cause after a few "donations". The conservative "Eagle Forum" explains how Disney has clout with the republican congress. He was the one who put forth from "anonymous" a bill attached to unrelated legislation to extend the term for drug patents. (ala the "as a work for hire" fiasco that took song rights from musicians). It's the least he could do after riding around in Schering-Plough's corporate jet, the ones who have the patent for Claritin that is about to expire. Too bad seniors (AARP) noticed because they have enough of a hard time as it is paying for prescriptions. It sort of makes the republican's plan for a prescription drug benefit ring hollow. If he really cared about "fair use", he would have delineated it by now in the DMCA. Or at least given half a thought about the "anti-circumvention" monster that he created. My guess is that he wanted to blow some hot air in the sails of the Good Ship Lollipop before she goes down, knowing full well that "fair use" has already been tossed in a lockbox and thrown overboard to the unattainable deep. Sure he looks good for supporting Napster and "fair use". Just too bad that he really smells. Phil _________________________________________________________________________ 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 Sat Sep 23 23:01:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA09950 for dvd-discuss-outgoing; Sat, 23 Sep 2000 23:01:41 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA09935 for ; Sat, 23 Sep 2000 23:01:39 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA23193 for ; Sat, 23 Sep 2000 23:03:11 -0400 (EDT) Message-ID: <39CD6EEB.149E5927@mediaone.net> Date: Sat, 23 Sep 2000 23:03:07 -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] Hatch disagrees with White House brief? References: <39CD687C.A22F54AD@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: > > > > > > > http://www.nytimes.com/2000/09/22/technology/22CYBERLAW.html > > > > > > "The government's view of the law is not monolithic, however. > > Senator > > > Orrin Hatch, Republican of Utah and chairman of the Senate Judiciary > > > > > Committee, recently wrote a letter to the Court of Appeals stating > > that > > > the government's brief does not necessarily express the views of the > > > > > Congress in the matter. " > > > > > > Anyone seen the letter he wrote? > > > > > > mickeym > > > > The last paragraph of the article: > > > > "Litman added that if Napster won its point on appeal the losing side > > could go to Congress and ask for an amendment requiring Napster and > > its clones pay a royalty tax compensating rights holders for lost > > recordings. She said the tax could be based on the frequency of MP3 > > music downloads." > > > > > > How is Gnutella going to pay the tax? > > > > A victory for Napster might mean that all motherboard manufacturers and > OS companies would owe the royalty, and new PC's would have serial copy > management installed. > > mickeym So, what is the brand name of thar Chinese computer I should buy? -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 24 01:12:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14410 for dvd-discuss-outgoing; Sun, 24 Sep 2000 01:12:57 -0400 Received: from nospam.com (c08-136.015.popsite.net [64.24.188.136]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id BAA14391 for ; Sun, 24 Sep 2000 01:12:24 -0400 Date: Sun, 24 Sep 2000 01:12:24 -0400 From: nospam@nospam.com Message-Id: <200009240512.BAA14391@eon.law.harvard.edu> To: dvd-discuss@eon.law.harvard.edu References: <39CD6EEB.149E5927@mediaone.net> Subject: Re: [dvd-discuss] Hatch disagrees with White House brief? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sphere wrote: > mickeym wrote: > > (snip) > > > > A victory for Napster might mean that all motherboard manufacturers and > > OS companies would owe the royalty, and new PC's would have serial copy > > management installed. > > > > mickeym > > > So, what is the brand name of thar Chinese computer > I should buy? Bung Enterprises? ;-) From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 24 02:47:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA16389 for dvd-discuss-outgoing; Sun, 24 Sep 2000 02:47:25 -0400 Received: from web10007.mail.yahoo.com (web10007.mail.yahoo.com [216.136.130.43]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id CAA16386 for ; Sun, 24 Sep 2000 02:47:24 -0400 Message-ID: <20000924064825.23216.qmail@web10007.mail.yahoo.com> Received: from [24.131.216.37] by web10007.mail.yahoo.com; Sat, 23 Sep 2000 23:48:25 PDT Date: Sat, 23 Sep 2000 23:48:25 -0700 (PDT) From: Larry Blunk Subject: [dvd-discuss] Attorney General statement To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-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 US Patent Office recently sponsored a symposium entitled "Intellectual Property Symposium of the Americas: Protecting Intellectual Property in the Digital Age". Details can be found at http://www.uspto.gov/web/offices/dcom/olia/ipsa2000/index.html I found a statement from the Attorney General given at the symposium here: http://www.publishers.org/home/itr/statement.htm Here's an interesting excerpt from the statement: "But there is another area where we need to work together with industry. I have been quite concerned reading accounts of individuals who have been charged with committing computer-related crimes -- especially statements by young people in the U.S. and other countries -- who brag about their technological accomplishments. Some young people talk about these activities as if they were harmless hobbies or, at best, intriguing challenges. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Sep 24 06:44:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA21792 for dvd-discuss-outgoing; Sun, 24 Sep 2000 06:44:51 -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 GAA21789 for ; Sun, 24 Sep 2000 06:44:46 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Sun, 24 Sep 2000 13:43:39 +0200 Message-ID: <39CE3FD9.EA582EF2@easybase.com> Date: Sun, 24 Sep 2000 13:54:33 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-9mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] counter offensive? 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 GAA21790 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I too was very impressed by the CT motion to dismiss. I must say, that i was even more impressed by it, than by any defense presented in NY case. I however, was mostly impressed by the argument of "real party of interest" Was such an argument made in NY case, we had much easier time on bringing in the necessary information about the access/copy control scheme. It seems now that this argument ("real party") is now lost in NY case. This however really brings an interesting question: MPAA are merely a single licensee of CSS technology. They say that DeCSS circumvents and assists in copyright infringement of their work. If i understand the argument made in CT correctly, if any other licensee of CSS would claim otherwise, we would have a conflict that a court somehow resolve. All it takes is 10,000$ to become a licensee, and then claim in court counter to the MPAA claim. Your claim as CSS licensee, should be no less important than the claim of MPAA, since they don't have more rights to CSS when you would. Is it too late to if not actually make it, then at least try somehow to squeze this argument in the appeal? If not, how can we argue that 2600.org now faces the possibility of numerous harrasing suits by all/some CSS licensees, and therefore needs court's determination that MPAA was the only real party of interest? This would have the interesting effect that if court finds MPAA to be the only real party, DVD-CCA should feel that their contract with MPAA has been breached which in itself has interesting consequences... on the other hand, if MPAA is not (real party) the whole suit was absurd. Rgrds, Moshe Vainer moshev@easybase.com Harold Eaton wrote: > I am really impressed with the motion to dismiss in the CT case. > Probably because I love to argue reducto ad absurdum, and they > do so beautifully. > > Anyway, it got me thinking. Presently the movie studies may be > in a vulnerable position which they have created for themselves. > > They believe that no persons are authorized to decrypt, and that > they can't even give such authorization, yet they sell encrypted > movies to the public. As the motion in CT showed, this creates > the position that buyers of DVDs receive almost nothing for the > purchase price of an encrypted DVD. Presently there is a NY > ruling upholding this view, and plenty of movie studio testimony > to support it to. > > A own a few Warner Bros. DVD's that I bought at Best Buy about a > year ago (before I learned of all this evil - I've been boycotting > for quite some time now). I would be happy to perform the absurd > step of taking them to Best Buy and trying to get a refund. Surely > Best Buy isn't going to take them back now, but should be willing > to sign a document stating that they won't refund my money. > > Now what is to stop me from suing Warner Bros in small claims court > in my home state for fraud in order to get my money back? I have > their testimony (from the NY case) that I am not authorized to decrypt, > but come October, 1201 (a)(1) says A PERSON may not decrypt without > authority Warner won't give it to me, so there is no longer any > lawful way to watch the movie that I "own". At the time of sale, > it was represented to be a movie available for home viewing without > restriction, and there was no indication that it was encrypted, or > that authority to decrypt it for viewing was not granted at the time > of sale. > > Maybe some lawyers on this list can suggest the risks/rewards of > going to small claims court over this. > > Imagine if 1,000 or 5,000 people all over the country went to their > small claims court in October-November! > _________________________________________________________________________ > 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 Sep 24 16:36:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02456 for dvd-discuss-outgoing; Sun, 24 Sep 2000 16:36:18 -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 QAA02453 for ; Sun, 24 Sep 2000 16:36:14 -0400 Received: from odin ([193.71.100.3]) by odin.funcom.com with smtp (Exim 2.12 #1) id 13dIWs-0007Jd-00 for dvd-discuss@eon.law.harvard.edu; Sun, 24 Sep 2000 22:37:42 +0200 Date: Sun, 24 Sep 2000 22:37:42 +0200 (CEST) From: Frank Andrew Stevenson X-Sender: frank@odin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] counter offensive? In-Reply-To: <39CE3FD9.EA582EF2@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 IIR no such argument was mad in the NYC case, but by the looks of it the CT motion relies on the NYC court record. And I agree that the "real party of interest" seems impressive (IANAL!), but would also be much harder to make, had not the NYC case moved through discovery etc. It seems that the MPAA have been caught in their own web, and filing more suits is most likely to do harm their own case :-) ( Sooner or later, they will have to run across a judge that won't be blinded by "piracy chaff", and be able see how ridiculous the MPAAs claims are ) frank On Sun, 24 Sep 2000, Moshe Vainer wrote: > I too was very impressed by the CT motion to dismiss. > I must say, that i was even more impressed by it, than by any defense > presented in NY case. > I however, was mostly impressed by the argument of "real party of interest" > Was such an argument made in NY case, we had much easier time on > bringing in the necessary information about the access/copy control > scheme. 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 Sep 25 03:26:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA14833 for dvd-discuss-outgoing; Mon, 25 Sep 2000 03:26:08 -0400 Received: from hotmail.com (f236.law10.hotmail.com [64.4.15.236]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA14830 for ; Mon, 25 Sep 2000 03:26:07 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Mon, 25 Sep 2000 00:27:10 -0700 Received: from 209.90.98.16 by lw10fd.law10.hotmail.msn.com with HTTP; Mon, 25 Sep 2000 07:27:10 GMT X-Originating-IP: [209.90.98.16] From: "K Phill" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] an interesting link Date: Mon, 25 Sep 2000 01:27:10 MDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 25 Sep 2000 07:27:10.0853 (UTC) FILETIME=[04918350:01C026C2] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At this link : http://www.law.indiana.edu/ilj/v71/no4/masson.html >From a paper called "Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work" Written in 1997 it seems eerily prophetic. On the "anti-circumvention" clause that was proposed by Clinton's 1993 task force for the copyright law; "Far from promoting science and the useful arts, such an amendment would do much to frustrate them. For example, it would prevent programmers from obtaining devices to help them reverse engineer their copies of a computer program.(81) Furthermore, the inability to determine how a program works prevents a programmer from creating another program which can work with the first. The amendment would do the sciences and useful arts a great disservice by hindering the interoperability of programs and systems." Also; "The message of these recommendations seems to be that the Task Force will see what rights are left over for the public once the rights of the authors have been firmly established. Phill _________________________________________________________________________ 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 Mon Sep 25 11:41:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02240 for dvd-discuss-outgoing; Mon, 25 Sep 2000 11:41:44 -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 LAA02224 for ; Mon, 25 Sep 2000 11:41:38 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Mon, 25 Sep 2000 18:40:25 +0200 Message-ID: <39CFD6E8.CE026185@easybase.com> Date: Mon, 25 Sep 2000 18:51:20 -0400 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.17-9mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] counter offensive? 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 LAA02226 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes, but what i meant as a counter offensive, was to ask a _judgement_ from Kaplan, that MPAA _is_ the real party of interest in this lawsuit. I think doing so would put Kaplan's decision in an interesting light: IANAL, but to support his own previous decision, he would have to declare that MPAA, and not DVD-CCA is the real party of interest. If he does, we have a possible clash between the interests of MPAA and DVD-CCA. Hopefully, DVD-CCA would not like this decision very much and will oppose it. Now a question to the lawyers here: 1. Is it possible (to ask for such judgement) 1.1 If DVD-CCA opposes such judgement, could it be used to overturn the decision 2. If MPAA is declared real party in NY, and DVD-CCA in CT, what would it make to the higher court's decisions; i mean, that when and if all this comes to the supreme court, what case is considered, NY or CT or both. 3. If one case make it faster to the supreme court, can it still be argued that there is another case with on exactly the same issue with opposite result? Rgrds, Moshe Vainer moshev@easybase.com Frank Andrew Stevenson wrote: > IIR no such argument was mad in the NYC case, but by the looks of it the > CT motion relies on the NYC court record. And I agree that the "real party > of interest" seems impressive (IANAL!), but would also be much harder to > make, had not the NYC case moved through discovery etc. It seems that the > MPAA have been caught in their own web, and filing more suits is most > likely to do harm their own case :-) ( Sooner or later, they will have to > run across a judge that won't be blinded by "piracy chaff", and be able > see how ridiculous the MPAAs claims are ) > > frank > > On Sun, 24 Sep 2000, Moshe Vainer wrote: > > I too was very impressed by the CT motion to dismiss. > > I must say, that i was even more impressed by it, than by any defense > > presented in NY case. > > I however, was mostly impressed by the argument of "real party of interest" > > Was such an argument made in NY case, we had much easier time on > > bringing in the necessary information about the access/copy control > > scheme. > > 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 Sep 25 16:27:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17836 for dvd-discuss-outgoing; Mon, 25 Sep 2000 16:27:23 -0400 Received: from eperke.themail.com (root@eperke.themail.com [216.64.18.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA17833 for ; Mon, 25 Sep 2000 16:27:21 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.154]) by eperke.themail.com (8.9.3/8.9.3) with SMTP id PAA40385 for ; Mon, 25 Sep 2000 15:25:47 -0500 (EST) (envelope-from mw@themail.com) Date: Mon, 25 Sep 2000 15:25:47 -0500 (EST) Message-Id: <200009252025.PAA40385@eperke.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd-discussHatch disagrees with White House brief? X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.125.157.130 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_20_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_20_Boundary___ Content-type: text/plain Thank you Phil! This is all so important info. -marcia >>"The government's view of the law is not monolithic, however. Senator > >>Orrin Hatch, Republican of Utah and chairman of the Senate Judiciary > >>Committee, recently wrote a letter to the Court of Appeals stating that > >>the government's brief does not necessarily express the views of the > >>Congress in the matter. " > > > >Hi; > > I live in Utah where Senator Hatch is up for re-election. As someone who > >once knew Senator Hatch, I'm really sorry to say that he _is not_ your fair > >use friend. > > > > As head of the Judiciary Committee he was the principal author of the > >DMCA. The very piece of vile legislation we are combating here. > > > > Also, he was the one that sponsored the Sonny Bono Copyright Term > >Extension Act (CTEA). > > > > When MPAA and a few pals roll into town he is only too willing to roll > >over and support their cause after a few "donations". The conservative > >"Eagle Forum" explains how >href="http://www.eagleforum.org/column/1998/nov98/98-11-25.html">Disney has > >clout with the republican congress. > > > > He was the one who put forth from "anonymous" a bill attached to > >unrelated legislation to extend the term for drug patents. (ala the "as a > >work for hire" fiasco that took song rights from musicians). It's the least > >he could do after riding around in Schering-Plough's corporate jet, the ones > >who have the patent for Claritin that is about to expire. Too bad seniors > >(AARP) noticed because they have enough of a hard time as it is paying for > >prescriptions. It sort of makes the republican's plan for a prescription > >drug benefit ring hollow. > > > > If he really cared about "fair use", he would have delineated it by now > >in the DMCA. Or at least given half a thought about the "anti-circumvention" > >monster that he created. > > > > My guess is that he wanted to blow some hot air in the sails of the Good > >Ship Lollipop before she goes down, knowing full well that "fair use" has > >already been tossed in a lockbox and thrown overboard to the unattainable > >deep. > > > > Sure he looks good for supporting Napster and "fair use". Just too bad > >that he really smells. > > > >Phil > >_________________________________________________________________________ > >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. > > > > > > > > __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_20_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 26 09:01:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA16222 for dvd-discuss-outgoing; Tue, 26 Sep 2000 09:01:14 -0400 Received: from orange.fenimore.org (sf-du127.cybermesa.com [209.12.75.127]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA16177 for ; Tue, 26 Sep 2000 09:00:55 -0400 Received: (from paul@localhost) by dial235.roadrunner.com (8.8.7/8.8.7) id MAA01962 for dvd-discuss@eon.law.harvard.edu; Mon, 25 Sep 2000 12:56:37 -0600 Date: Mon, 25 Sep 2000 12:56:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS vs. Access Control Message-ID: <20000925125636.A1127@localhost> References: <200009052236.SAA18792@soggy-fibers.ai.mit.edu> <20000905182332.A10900@thud.reric.net> <200009060033.UAA20090@soggy-fibers.ai.mit.edu> <39B5A874.F8B032ED@swbell.net> <200009061532.LAA23998@soggy-fibers.ai.mit.edu> <39B722FC.DDCF6EBF@swbell.net> <20000907013908.C4106@eldritchpress.org> <200009070958.FAA02664@soggy-fibers.ai.mit.edu> <39B82548.5B64F0B3@swbell.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39B82548.5B64F0B3@swbell.net>; from tjolley@swbell.net on Thu, Sep 07, 2000 at 06:31:20PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Sep 07, 2000 at 06:31:20PM -0500, Jolley wrote: > If Kaplan has bullied one of the defendent's lawyers into agreeing > that CSS protects access to a copyrighted work, does that destroy any > arguments we have here to the contrary? Sorry for the long delay in replying. Ms. Gross did *not* agree that CSS protects access to a work. A. Ms. Gross did stipulate that DeCSS "descramble[s]" a work. However taking this (as Kaplan did) to be "circumvent" is simply incorrect, the plain-English construction of the statute attaches other tests to "circuvment". B. As has been pointed out many times, stipulating "scrambling" does nothing to establish access control. Factually, "scrambling" could be hashing (a one-way function). Legally, "access" is not defined by the statute, access requires operation with authority of copyrigh owner. A sipulation of scrambling or descrambling does nothing to address these other points. > "Robert S. Thau" wrote: > > > > We can argue that Kaplan's ruling against Corley, based entirely on the > > notion that "CSS effectively controls access to a work", ought to be > > tossed. > > > > rst > > >From the "code as speech" thread by Paul Fenimore: > > >The judge having been duly indoctrinated, we get: > > > > > > THE COURT: The charge against your clients is providing a device which > > is a means for circumventing an access limiting factor. The > > infringement would be done by someone else, although it might be done > > by your client, it need not be. Nor is the infringement essential to > > the violation of 1201. Is there some error in that, counsel? > > > > MS. GROSS: I think you need to have--I'm sorry. > > > > MR. LEVY: Essentially, your Honor, our reading of the DMCA, certainly > > in order to make it a constitutional reading, is that it does not > >=> outlaw any type of decryption. It only outlaws decryption that affects > > copyrighters' rights, and to that extent the two are read together; > > that is, it is not the case that as soon as you engage in the science > > of cryptology you have violated the DMCA, though certainly those raise > > other constitutional issues. That's essentially what we are saying. Is > > that clear? > > > > THE COURT: What you've said is clear. It's just very different from > > what Congress said. > > > >[ ... ] > > > > THE COURT: It says that you can't offer to the public any technology, > > product, service, etc., that's primarily designed or produced for the > > purpose of circumventing a technological measure that effectively > > controls access to a protected work. Now, is there any doubt that CSS > > protects access to a copyrighted work? Is there any at all? > > > > MS. GROSS: Agreed. > > > >=> THE COURT: Is there any doubt at all that DeCSS is a device that > >=> circumvents CSS? > > > >=> MS. GROSS: It does descramble it. > > > >=> THE COURT: Okay. > > > >=> MS. GROSS: But that-- > > > >=> THE COURT: With that established, let's proceed. > > Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 26 13:52:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16981 for dvd-discuss-outgoing; Tue, 26 Sep 2000 13:52:07 -0400 Received: from imo-r04.mx.aol.com (imo-r04.mx.aol.com [152.163.225.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA16978 for ; Tue, 26 Sep 2000 13:52:06 -0400 From: VTLAW1@aol.com Received: from VTLAW1@aol.com by imo-r04.mx.aol.com (mail_out_v28.15.) id x.36.bd8227a (16784) for ; Tue, 26 Sep 2000 13:51:51 -0400 (EDT) Message-ID: <36.bd8227a.27023c32@aol.com> Date: Tue, 26 Sep 2000 13:51:46 EDT 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" 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 Help! Somehow I've slipped back onto the list. Could someone please remove my name for the LISTSERV. Thanks From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 26 14:13:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20532 for dvd-discuss-outgoing; Tue, 26 Sep 2000 14:13:12 -0400 Received: from hulaw5.law.harvard.edu (hulaw5.law.harvard.edu [140.247.200.68]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA20513 for ; Tue, 26 Sep 2000 14:13:11 -0400 Received: from seltzerw ([204.243.92.112] (may be forged)) by hulaw5.law.harvard.edu (8.8.6 (PHNE_14041)/8.8.6) with ESMTP id OAA18920 for ; Tue, 26 Sep 2000 14:13:08 -0400 (EDT) Message-Id: <4.2.2.20000926140817.016ef8e0@seltzer.com> X-Sender: wendy@seltzer.com (Unverified) X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 26 Sep 2000 14:13:18 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] [administrivia] eon back 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 A network problem and not the MPAA's minions took eon offline yesterday evening. It's back online now, but you may receive odd messages queued from earlier dates. --Wendy Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 26 17:53:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07057 for dvd-discuss-outgoing; Tue, 26 Sep 2000 17:53:29 -0400 Received: from mail.onetouch.com ([205.180.182.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA07054 for ; Tue, 26 Sep 2000 17:53:27 -0400 Received: by mail.onetouch.com with Internet Mail Service (5.5.2652.35) id ; Tue, 26 Sep 2000 14:53:18 -0700 Message-ID: From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 4C Entity Date: Tue, 26 Sep 2000 14:53:16 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2652.35) Content-Type: text/plain; charset="iso-8859-1" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Deep linking" is not really providing a URL to a page down someone else's web site tree, it's embedding a resource from someone else's site in your own page. For example, on my site I have a bunch of pictures of skaters. All of 'em are present somewhere on this site: http://www.catslair.com Now, if you set up a website on AOL and wanted to use my pictures, there are two ways of doing it. 1) copy 'em to your space on the AOL server (copyright violation) 2) "deep link" -- write your pages to show images straight from my server. The second method can't be copyright violation because you never made copies of the pictures, right? I've got 'em on my server for people to see, and you are using my server. Well ... except that they are not being presented with my HTML "wrappers" that has my captions, copyright notices, ads, etc. Essentially you are presenting my work as your own even though you never made copies of it on your server. This can be considered to be a) fraud (presenting my work as your own) and/or b) theft of services (using my server to save space and/or loading on yours that would be used if you had copied my pictures). This whole concept is a bit wierd, and certainly not yet really covered by preexisting law. One approach to this issue has been to pursue it as "trespass". A bit unusual, but you gotta take what options the law offers when you're breaking new ground, eh? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Stephen L Johnson [mailto:sjohnson@monsters.org] > Sent: Thursday, September 21, 2000 12:42 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] 4C Entity > > > On Sep 21, Michael.A.Rolenz(at)aero.org wrote: > > >"deep linking" is something that I had never heard of before (anyone > >else?). I suspect it's one of those "hacker" jargon made up > by the press. I > >must confess that I really don't understand what their > concern is about. > >Why should anyone have to plow through advertising to get to > anything. > >Magazines, books and even the newspapers have indexes and > sections why > >should an internet site be chained to a linear topology. > > Hello all. I'm new to the dvd-discuss list. But I have been > reading the > list archives for many weeks. All of the DeCSS cases have become an > addiction. Hopefully I can make some small contribution to > the discussion. > > "deep linking" is not what I would deem a "hacker" term. It's > a new term > given to a web site development pratice that really didn't > need a name before > now. The best techinical definition would be creating a hyperlink on > a web page that points to an off-site web page that is not > the home page of > the internet site, i.e. (any off-site link that isn't > http://some-company.com, http:// > www.some-site.org/index.html, and so forth.) > > The funny thing is I don't see why some companies are > creating a bit stink or > filing suit over it. In almost all cases, it is technical possible to > prevent any "deep linking". The web browsers can redirect any > "deep link" > accesses to their site front page. > > This is possible because web browsers send a "Referral" > header as a part of > web access requests when a hyperlink is selected from a web page. The > "Referral" header is the URL of the web page where the > hyperlink was present. > > The web servers can be configured/programmed to look at the > "Referral" header > of a request. The web server can send redirect the browser > to the site's front > page if the "Referral" URL was not from soem where on their site. > > Stephen L Johnson sjohnson@monsters.org > From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 26 19:47:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24846 for dvd-discuss-outgoing; Tue, 26 Sep 2000 19:47:58 -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 TAA24823 for ; Tue, 26 Sep 2000 19:47:46 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA13191 for dvd-discuss@eon.law.harvard.edu; Tue, 26 Sep 2000 19:49:20 -0400 Date: Tue, 26 Sep 2000 19:49:15 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Valenti v Lessig Message-ID: <20000926194914.I9682@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://cyber.law.harvard.edu/futureofip/ Oct 1 at Harvard Law School, Larry Lessig and Jack Valenti debate "The Future of Intellectual Property in Cyberspace." http://cyber.law.harvard.edu/futureofip/webscast.asp promises to webcast the event. Registration requested at http://cyber.law.harvard.edu/futureofip/signup Valenti wins in any case unless we can finish our brief! From dvd-discuss-owner@eon.law.harvard.edu Tue Sep 26 20:40:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA05111 for dvd-discuss-outgoing; Tue, 26 Sep 2000 20:40:47 -0400 Received: from mail.onetouch.com ([205.180.182.5]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA05108 for ; Tue, 26 Sep 2000 20:40:45 -0400 Received: by mail.onetouch.com with Internet Mail Service (5.5.2652.35) id ; Tue, 26 Sep 2000 17:40:41 -0700 Message-ID: From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Candidate draft: The Interests of the Amici Date: Tue, 26 Sep 2000 17:40:32 -0700 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2652.35) Content-Type: 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, I may be way late w/ my $.02 on this ... but I am not particularly an "adherent to the open source philosophy". Not that I'm agin' it per se, but it just ain't one of my interests one way or the other. Also, I think by putting that forward as our interest we are diverting attention from the real issue. The interests of -this- ami is that the pas of modern technology has far outstripped the capability for the lawmakers to keep up. Moreover, the understanding implications of the advances in technology are as much a speciality as understanding the implications of legalese. Just as engineers aren't laywers, lawyers aren't engineers ... and thus aren't especially qualified to make new law and/or attempt to apply old law to situations that are really "something new under the sun" without competant advise from parties without vested interests in the outcome of the law. (ok, that could be said better ... but the gist is there) -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: John Zulauf [mailto:john.zulauf@ia.nsc.com] > Sent: Monday, September 18, 2000 9:21 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Candidate draft: The Interests of the Amici > > > I was thinking about the group and what it's unique > characteristics and > interests would be. The following literally flew from my > fingers. Please > let me know if I've (a) capture the essence of it and then > (b) if I have let > get some specific edits (both legal and gramatical) to get > this amcicus > going. > > John Zulauf > private netizen > > Interests of the Amici > > > The amici are adherents to the open source philosophy and > methodology. They > hold that the best "progress of the useful arts and sciences" > are served > when information is shared, with the explicit voluntary consent of the > authors and inventors in an open forum. From this voluntary > commons of > ideas, they believe that the best, highest quality, most > honest results are > derived. This commons is open to all who will share, with > none excluded on > the basis of background, formal education, training or > opinion. As such the > amici, drawn from the diverse background of engineering, law, > education, > writing, publishing, encryption, among others have voluntarily bonded > together to bring before the court the best possible > understanding of the > difficult issues involved in this case. > > Far from the characterization of the court regarding open > source developers, > "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" (need citation) > the amici are > deeply concerned about Copyrights. The core values of open > source being the > free, voluntary, sharing of information protected by > copyrights (cite GNU > copyleft) that assure that the results of the intellectual > commons cannot be > usurped by those who would wrongly profit from another's > work. Further the > amici are deeply committed to, and concerned regarding the > preservation of > the Constitution balance struck by the Copyright Clause. > While the amici > respect and defend the exclusive rights of the copyright > holders to benefit > commercially from their work, they also are struck by the > importance of the > converse aspect of this social contract. Namely that in > order to gain the > legal benefits and rights over their works, that these works > must be truly > published, and then after the "limited times" expire, pass > into the public > domain. It is the concerned interest of the amici that this > balance be > maintain, and feel that it is currently at risk. Little was > allowed into > the record regarding the various rights of the copyright > holders and the > citizen consumers. The amici have a strong interest expanding the > information available to the Court regarding the risks to > that traditional > balance posed by the "horribles" endemic in strong > technological controls. > Said succinctly, it is in the interest of the amici that > encrypted work be > understood as rightly not being published. As to publish is to "make > public" the amici cannot understand how encryption content > (by it's nature > to keep information private) can be understood as fulfulling > the copyright > holders half of the social contract as it is not readily > understood and > cannot "promote progress" and as it will not lapse into the > public domain > after limited times. > > That said, the amici are tinkerers, explorers, inventors, > creators, writers, > and innovators. When presented with a problem, a limitation, > a reduction in > quality, a difficulty in user experience, their first > instinct is to solve, > to improve, to understand, to explain, and to improve. The > amici see these > abilities being steadily eroded and restricted by those who > would ignore the > traditional balance of the Copyright and claim unlimited > authority over > their creative works. While the amici respect the rights to > publish and > vend, they strenously object the intrusion of the copyright > holders beyond > the first sale of the copyright works. They see the legal > emcumbrances > which impose quality and user experience restrictions upon > DVD manufacturers > as the equivalent of a publisher requiring that a book be > read only in poor > light. The amici seek to defend the freedom not to steal the > book, but to > replace the light bulb. Beyond this the amici are concerned > that these > initial technological intrusions beyond the first sale of > published works > are only the "nose of the camel." Given (arguendo?) a positive legal > outcome in the case before the court, and the enormous > economic incentive to > further control the use of published media, the amici fear > comprehensive, > complete control over all uses of digital media. Thus achieved, the > intellectual commons becomes barren. All creative content corporately > chained to the business models of the copyright holders > becomes unavailable > for fair use, parody, or any further intellectual discoure. > > The amici are further interested in the rights of open intellectual > discourse. The plaintiffs and the lower courts would > restrain the rights of > open source software developer to exchange information in > public the fora > which form the basis for the open source community. Further > they would > restrain the press from reporting, or even linking to the > products of these > open communities, base soley on the content -- specifically > that it regards > the decryption of CSS encoded media. This chilling effect > thus extends the > control of the copyright holders beyond just the works which > they publish to > include control over the works which others would create and > publish. The > chilling effect of the lower courts decision are (by > neccesity of being > after the fact of the ruling) are "de novo" but the amici > seek to show that > there interests are already being threatened subsequent to the ruling. > > Finally, many of the amici are scientist, academics, engineers, and > educators. They are concerned about factual accuracy, > complete honesty, and > open disclosure. As such the issues of "spin" and > "understanding" are of > the concern. Throughout the record various statements were > asserted by the > plaintiffs and the court. Examples include that encryption is copy > protection, that decryption is circumvention, and that publication is > trafficking. Given the careful spin given these assertions > and the only > partial understanding of technical matter demonstrated (and > admitted) by the > Court, the amici have strong interest in removing the element of spin, > addressing these assertions factual, and aiding the > understanding of the > complicated technical matters involved. > From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 27 11:06:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21656 for dvd-discuss-outgoing; Wed, 27 Sep 2000 11:06:36 -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 LAA21652 for ; Wed, 27 Sep 2000 11:06:35 -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 e8RF5wX01649 for ; Wed, 27 Sep 2000 11:05:59 -0400 (EDT) Message-ID: <39D20CE3.52EF0F4F@mindspring.com> Date: Wed, 27 Sep 2000 11:06:11 -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] Music =?iso-8859-1?Q?Owners=92?= Listening Rights Act of 2000 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Have anyone seen this? http://www.house.gov/boucher/docs/molra-leg.htm " It is not an infringement of copyright for a transmitting organization that transmits a personal interactive performance to make or cause to be made phonorecords or copies of a sound recording and any nondramatic musical works embodied therein if such phonorecords and copies are used by the transmitting organization soley in connection with the transmission of personal interactive performances." From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 27 11:18:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25790 for dvd-discuss-outgoing; Wed, 27 Sep 2000 11:18:58 -0400 Received: from bnmsx1.bnventures.com (216-175-238-242.client.dsl.net [216.175.238.242]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA25787 for ; Wed, 27 Sep 2000 11:18:57 -0400 Received: from BONOBO ([192.168.29.232]) by bnmsx1.bnventures.com with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.2650.21) id S471AVZG; Wed, 27 Sep 2000 11:18:07 -0400 From: "Ernest Miller" To: Subject: [dvd-discuss] =?us-ascii?Q?RE:_=5Bdvd-discuss=5D_Music_Owners'_Listening_Rights_Act_of_?= =?us-ascii?Q?2000?= Date: Wed, 27 Sep 2000 11:20:06 -0500 Message-ID: <000301c0289e$ccc8a820$e81da8c0@bnventures.com> MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2910.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 Importance: Normal In-Reply-To: <39D20CE3.52EF0F4F@mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yep. Already called my representative to ask that he support it. -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of mickeym Sent: Wednesday, September 27, 2000 10:06 AM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Music Owners' Listening Rights Act of 2000 Have anyone seen this? http://www.house.gov/boucher/docs/molra-leg.htm " It is not an infringement of copyright for a transmitting organization that transmits a personal interactive performance to make or cause to be made phonorecords or copies of a sound recording and any nondramatic musical works embodied therein if such phonorecords and copies are used by the transmitting organization soley in connection with the transmission of personal interactive performances." From dvd-discuss-owner@eon.law.harvard.edu Wed Sep 27 20:22:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA23530 for dvd-discuss-outgoing; Wed, 27 Sep 2000 20:22:00 -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 UAA23527 for ; Wed, 27 Sep 2000 20:21:58 -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 UAA06195 for ; Wed, 27 Sep 2000 20:19:09 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200009252025.PAA40385@eperke.themail.com> References: <200009252025.PAA40385@eperke.themail.com> Date: Wed, 27 Sep 2000 17:02:54 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Hatch disagrees with White House 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 The New York Times published an roundtable on Internet File Sharing that included Sen. Hatch in which he takes some fairly reasonable positions. It's at http://partners.nytimes.com/library/tech/00/09/biztech/technology/20mi rapaul.html Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 28 09:22:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA27692 for dvd-discuss-outgoing; Thu, 28 Sep 2000 09:22:25 -0400 Received: from baosoft.com ([202.101.38.219]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA27643; Thu, 28 Sep 2000 09:22:21 -0400 From: HotStock@masterone.com Received: from _[152.180.113.17]_by by baosoft.com (SMI-8.6/SMI-SVR4) id VAA25946; Thu, 28 Sep 2000 21:21:33 +0800 Message-Id: <200009281321.VAA25946@baosoft.com> Received: from [107.35.96.235] by _[152.180.113.17]_by with SMTP id A105C50E10 Thu, 28 Sep 2000 09:00:20 PDT Subject: [dvd-discuss] Why So Much Smart Money Is So High on Read-Rite !! Mime-Version: 1.0 Content-Type: text/plain, charset="iso-8859-1" Date: Thu, 28 Sep 2000 09:17:36 Apparently-To: Apparently-To: Apparently-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Link to article below: http://www.thestreet.com/comment/herbonthestreet/1096812.html Commentary: Herb on TheStreet.com -------------------------------------------------------------------------------- Why So Much Smart Money Is So High on Read-Rite By Herb Greenberg Senior Columnist 9/26/00 6:30 AM ET Read-Rite(symbol= RDRT) Feeling benevolent, so let's get bullish: Reading right: As I've written in RealMoney.com's Columnist Conversation, the one stock quite a few of my smartest sources are yapping about is Read-Rite (RDRT:Nasdaq - news - boards), the (until very recently) long-forgotten maker of heads for disk drives. The only reason I take it seriously is because of the variety of investors in the stock (from seasoned and savvy traders to some of the most-dogged researchers I know). Most of the sizzle surrounding the company in recent weeks has been tied to the launch of a new division called Scion Photonics, which is developing optical wafers for use in the fiber-optic networks, and which was initially funded with $25 mil from Tyco Ventures and Roger McNamee's Integral Capital, which got a quarter of the company in return. But that's only part of the story: According to Scott Turkel of TCM Partners, who has had his share of hits and misses in this column, and who also happens to be the only on-the-record holder among my sources, the company without Scion is worth about where it trades today, $10.50, or around 1 times sales. "They're completely sold out in their core business in the fourth quarter," he says, "and for the first time, they have pricing power." (One reason is that disk drives are no longer sold mostly for PCs; they've become a staple in storage networks.) Scion, meanwhile, is currently valued at around $100 million (based on Tyco/Integral's 25% stake). "Chump change," says Turkel. That's because the valuation is without even having a marketable product; the first wafer isn't expected to hit the market until next year (which, I should point out, is why some skeptics are, uh, skeptical). But another very sharp manager I know, who is often short stocks, said he saw Read-Rite at several recent conferences, and "I thought the story got better between Salomon Smith Barney and Banc of America, both on the optics side and on their base business. They actually showed a slide of the optical wafer prototype they had made; they said they are sampling product with several customers. They said, Our customers have said, 'If you can make them, we'll buy them.' In other words, the move to optical is less theoretical than it was a month ago." What's more, according to this money manger, who is great at spotting nuances, "They went from saying, 'We'll be break-even cash flow in Q-4 from core businesses,' to saying, 'We are on allocation and we may actually make money in Q4' from the core business.' " Based on that, Turkel (who first bought the stock when it was $4 not long ago) thinks he now owns a $10 stock that is worth $25. P.S.: Read-Rite recently paid the first installment of interest on a convertible bond with cash, rather than stock, which was an alternative. (The cash came from the State of Wisconsin Investment Board, already a large Read-Rite investor.) Translation to some investors: The only reason the state paid with cash is because it thinks the stock is going higher. Or, put another way, Wisconsin, which already owns a 20% stake, wouldn't have sunk in even more cash if it didn't think it would make a decent return. (Did I really write something that glowing? Must be some kind of a market top!) (Voluntary Disclosure: Position- Long) Read-Rite CEO gets into growth By Janet Haney, CBS.MarketWatch.com Last Update: [Timestamp]NewsWatch Latest headlines SAN FRANCISCO (CBS.MW) -- Read-Rite Chief Executive Officer Alan Lowe waxed positive about the future growth prospects for the magnetic-recording-head supplier. Lowe told a crowd of investors and analysts during a presentation at the Banc of America Securities Investment Conference in San Francisco on Thursday that he expects huge unit growth potential for Read-Rite's (RDRT: news, msgs) December quarter, as well as the possibility of profitability. Lowe added that the company is hiring people as fast as it can for its wafer fabrication facility. For the September quarter, the CEO said Read-Rite has a "lot of product to ship in the last 10 days of the quarter." Additionally, Lowe talked about Read-Rite's recent formation of an independent fiber optic company called Scion Photonics which he said hopes to go public. Scion received funding from Tyco, which will make a presentation at the conference later Thursday. Janet Haney is a reporter for CBS.MarketWatch.com. From dvd-discuss-owner@eon.law.harvard.edu Thu Sep 28 11:45:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA02036 for dvd-discuss-outgoing; Thu, 28 Sep 2000 11:45:03 -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 LAA02033 for ; Thu, 28 Sep 2000 11:45:01 -0400 Message-ID: <20000928154432.3343.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 28 Sep 2000 08:44:32 PDT Date: Thu, 28 Sep 2000 08:44:32 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] New 5th Circuit Opinion To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Computer Management Assistence Co. v. DeCastro No. 99-30513 (5th Cir. 2000) http://www.ca5.uscourts.gov/opinions/pub/99/99-30513-CV0.HTM DeCastro used a 3rd party direct order entry package called FACTS that was specially modified to integrate with CMAC sales management software called Access. CMAC claimed that by modifying FACTS to interface with Access that DeCastro infringed their copyrights and violated their trade secrets. The 5th Circuit upheld the district court's ruling that defendents did not infringe or misappropriate CMAC's intellectual property. __________________________________________________ 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 Sep 28 19:02:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23131 for dvd-discuss-outgoing; Thu, 28 Sep 2000 19:02:03 -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 TAA23128 for ; Thu, 28 Sep 2000 19:02:00 -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 SAA19777 for ; Thu, 28 Sep 2000 18:02:02 -0500 (CDT) Message-ID: <39D3CDE9.4854F64@uic.edu> Date: Thu, 28 Sep 2000 18:02:02 -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] Public Performances Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Off topic ... discovered while scouring the web ... A 1995 "FAQ" from our friends, the MPAA, reads: > Neither the rental nor purchase of a videocassette > carries with it the right to show the tape outside of > the home. No license is required to view a videotape > inside the home by a family or social acquaintances, > and home videocassettes may also be shown, without > a license, in certain narrowly defined face-to-face > teaching activities (Federal Copyright Act, Title 17, > section 110). > Taverns, restaurants, private clubs, prisons, lodges, > factories, summer camps, public libraries, day-care > facilities, parks and recreation departments, churches, > and non-classroom use at schools and universities are > all examples of situations where a public performance > license must be obtained. This legal requirement applies > regardless of whether an admission fee is charged, > whether the institution or organization is commercial or > non-profit, or whether a federal or state agency is involved. Okay ... this sounds familiar ... but there's also 17 U.S.C. 109(c), which says: (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. Either the MPAA FAQ is wrong, and 109(c) permits one to show a *purchased* copy of a DVD, as opposed to a rented copy, in a tavern for instance, or I don't understand why 109(c) wouldn't apply. Can anyone clarify? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 00:09:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA04388 for dvd-discuss-outgoing; Fri, 29 Sep 2000 00:09:37 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA04385 for ; Fri, 29 Sep 2000 00:09:33 -0400 Received: (from news@localhost) by abraham.cs.berkeley.edu (8.8.6/8.8.6) id VAA12117; Thu, 28 Sep 2000 21:08:58 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@mozart.cs.berkeley.edu (David Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Draft of part IV on Reverse Engineering Date: 29 Sep 2000 04:08:57 GMT Organization: University of California, Berkeley Lines: 30 Distribution: isaac Message-ID: <8r14kp$bqc$1@abraham.cs.berkeley.edu> References: <20000921212749.17122.qmail@web514.mail.yahoo.com> NNTP-Posting-Host: mozart.cs.berkeley.edu X-Newsreader: trn 4.0-test74 (May 26, 2000) Originator: daw@mozart.cs.berkeley.edu (David Wagner) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: >I offer for your reading pleasure 99 lines explaining why Kaplan should >be reversed on reverse engineering: Ok, I got lost at lines 25--32. Are you arguing that merely because Johansen owns the copyright on DeCSS, Congress cannot pass any law that has the effect of blocking publication of DeCSS, no matter their reason? That doesn't sound like a winning argument to me. The statement at line 29 had me particularly confused: Certainly the DMCA may not Constitutionally allow plaintiffs to block exclusive rights the Constitution insist belong to the authors. What were you trying to argue here? Why is the above relevant? What Constitionally-protected exclusive rights are the plaintiffs trying to block? Where does the Constitution list any exclusive rights as belonging to the authors? Aren't these exclusive rights merely a construction of Federal copyright law? Moreover, isn't it possible that the DMCA is justified, not under the copyright clause of the Constitution, but under the commerce clause? I'm sorry if these questions are so scatter-shot; I must admit to some confusion about your point. By the way, are you arguing that Corley provided DeCSS solely for the purpose of enabling interoperability? His own testimony stands in opposition to such an argument -- I believe he stated that he provided DeCSS, among other reasons, to educate the public, allow them to come to their own conclusions regarding this controversial news item, and so on. Am I overlooking something? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 03:09:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA10308 for dvd-discuss-outgoing; Fri, 29 Sep 2000 03:09:02 -0400 Received: from hotmail.com (f116.law10.hotmail.com [64.4.15.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA10305 for ; Fri, 29 Sep 2000 03:09:00 -0400 Received: from mail pickup service by hotmail.com with Microsoft SMTPSVC; Fri, 29 Sep 2000 00:09:00 -0700 Received: from 209.90.98.11 by lw10fd.law10.hotmail.msn.com with HTTP; Fri, 29 Sep 2000 07:09:00 GMT X-Originating-IP: [209.90.98.11] From: "K Phill" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public Performances Date: Fri, 29 Sep 2000 01:09:00 MDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Message-ID: X-OriginalArrivalTime: 29 Sep 2000 07:09:00.0336 (UTC) FILETIME=[2438D300:01C029E4] Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I have some ooolldd 78 records that don't have a copyright notice on them. And in the middle of the record where the label is and around the edge there is this; THIS THIS RECORD IS LICENSED IN USA FOR _USE ONLY_. AND ONLY UNDER THE CONDITIONS PRINTED ON THE VICTOR COMPANY'S ENVELOPE CONTAINING IT. NO LICENSE IS GRANTED IF THE RECORD IS NOT DELIVERED IN THE ENVELOPE CONTAINING SAID CONDITIONS. SEE CONDITIONS. And on another 78 record there is this; Licensed by Mfr. under U.S. Patent Nos. 1625705 and/or 1702564 (and other patents pending) only for non-commercial use on phonograph in homes. See detailed trade mark and patent notices on envelope. Made in U.S.A. I don't know how the history of the law evolved from this, but it would be interesting to research out. The really sad thing is that the law evolved in a time when congress wasn't bought. I wonder if the license is still in effect, as they were in not in the original envelopes, but in a album made for records. So, what if you wanted to open a dance hall where people could dance to this music?? Now don't laugh at me, as I don't think the copyright has expired yet on these....... Phill >Off topic ... discovered while scouring the web ... > >A 1995 "FAQ" from our friends, the MPAA, reads: > > > Neither the rental nor purchase of a videocassette > > carries with it the right to show the tape outside of > > the home. No license is required to view a videotape > > inside the home by a family or social acquaintances, > > and home videocassettes may also be shown, without > > a license, in certain narrowly defined face-to-face > > teaching activities (Federal Copyright Act, Title 17, > > section 110). > > > Taverns, restaurants, private clubs, prisons, lodges, > > factories, summer camps, public libraries, day-care > > facilities, parks and recreation departments, churches, > > and non-classroom use at schools and universities are > > all examples of situations where a public performance > > license must be obtained. This legal requirement applies > > regardless of whether an admission fee is charged, > > whether the institution or organization is commercial or > > non-profit, or whether a federal or state agency is involved. > >Okay ... this sounds familiar ... but there's also 17 U.S.C. >109(c), which says: > >(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. > >Either the MPAA FAQ is wrong, and 109(c) permits one >to show a *purchased* copy of a DVD, as opposed to a >rented copy, in a tavern for instance, or I don't understand >why 109(c) wouldn't apply. Can anyone clarify? > > _________________________________________________________________________ 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 Fri Sep 29 12:06:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA32716 for dvd-discuss-outgoing; Fri, 29 Sep 2000 12:06:40 -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 MAA32713 for ; Fri, 29 Sep 2000 12:06:39 -0400 Received: from localhost (khockenb@localhost) by attila.stevens-tech.edu (8.9.3/8.9.3/7) with ESMTP id MAA2498144 for ; Fri, 29 Sep 2000 12:06:42 -0400 (EDT) Date: Fri, 29 Sep 2000 12:06:42 -0400 From: Kurt Hockenbury To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] "What Every American Should Know About Copyright" In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's preaching to the choir for this list, but I thought this was a worthwhile essay; maybe people can point their non-aware friends at it. It's called "What Every American Should Know About Copyright" by Susan Aker. http://www.osopinion.com/Opinions/SusanAker/SusanAker1.html -Kurt From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 13:15:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04105 for dvd-discuss-outgoing; Fri, 29 Sep 2000 13:15:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA04100 for ; Fri, 29 Sep 2000 13:14:58 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA16566 for dvd-discuss@eon.law.harvard.edu; Fri, 29 Sep 2000 13:17:07 -0400 Date: Fri, 29 Sep 2000 13:17:02 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "What Every American Should Know About Copyright" Message-ID: <20000929131702.B16406@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from khockenb@stevens-tech.edu on Fri, Sep 29, 2000 at 12:06:42PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 29, 2000 at 12:06:42PM -0400, Kurt Hockenbury wrote: > It's preaching to the choir for this list, but I thought this was a worthwhile > essay; maybe people can point their non-aware friends at it. > > It's called "What Every American Should Know About Copyright" by Susan Aker. > > http://www.osopinion.com/Opinions/SusanAker/SusanAker1.html > > -Kurt thanks! and also note the response at (please unfold long line) 9/29/00 10:14 AM http://www.osopinion.com/cgi-bin/w3t4/showthreaded.pl?Cat=&Board=talkbackforum&Number=8942&page=0&view=collapsed&sb=5#Post8942 since that corrects several important errors in the article. I don't know who posted that, but thanks, it's very good! Also please note the Oct 1 debate between Lessig and Valenti, and the Oct 2 moot court debate at Harvard. see the main page http://cyber.law.harvard.edu/ Oct 5 in DC Circuit Court of Appeals are oral arguments in Eldred v Reno. I hope National Public Radio 'All Things Considered' runs an interview that afternoon with Berkman Center Co-Director Jonathan Zittrain (newly Assistant Professor of Law at Harvard Law School) and me. Also, I hope the Berkman Center stages similar events for the DVD appeals--nudge, nudge. All this is very important to educate the public as to their rights under copyright law. If we don't do it, guess who will. And I think the education is going along pretty well--if one can judge from online debates now, at least. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 13:19:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04409 for dvd-discuss-outgoing; Fri, 29 Sep 2000 13:19:40 -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 NAA04406 for ; Fri, 29 Sep 2000 13:19:39 -0400 Message-ID: <20000929171913.9066.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 29 Sep 2000 10:19:13 PDT Date: Fri, 29 Sep 2000 10:19:13 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Draft of part IV on 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 --- David Wagner wrote: > Ok, I got lost at lines 25--32. Are you arguing that merely because > Johansen owns the copyright on DeCSS, Congress cannot pass any law > that has the effect of blocking publication of DeCSS, no matter > their reason? > That doesn't sound like a winning argument to me. The Copyright clause empowers Congress to secure exclusive rights to authors for their original writings. Copyright law in accordance with the Constitution can stop people from publishing the writings of others, but there is no Constitutional way to use the Copyight power to stiffle publication approved by the author of their own "original" writings. The Constitution affords Congress latitute only in the degree of exclusivity, but in no case does the Constitution allow Congress to stop an author from distributing his own original writings or from contributing them to the public domain. That would be a prior restraint, which is a very sharp razor. > The statement at line 29 had me particularly confused: > > Certainly the DMCA may not Constitutionally allow plaintiffs > to block exclusive rights the Constitution insist belong to > the authors. > > What were you trying to argue here? Why is the above relevant? See above. Kaplan's argument is that 2600 can't spread information that qualifies for 1201(f) because 2600 didn't create that info. Johansen and Fawcus are the original authors of DeCSS, Johansen approves of the distribution by 2600, so Kaplan's argument says that you cannot communicate even with the authority of their author. Congress cannot take the writings of one author and give exclusive control over them to a different entity such as the MPAA or the government. > What Constitionally-protected exclusive rights are the plaintiffs > trying to block? The absolute right of an author to communicate their own original expression, or to contribute it to the public domain. > Where does the Constitution list any exclusive rights > as belonging to the authors? Aren't these exclusive rights merely a > construction of Federal copyright law? All rights given to the author are statutory. Congress has considerable choice in how much power to exclude is given to the author. But the Constitution does insist that any rights created must be given to the "author". What Congress does not give to the author remains in the public domain in accordance with the First Amendment. > Moreover, isn't it possible that the DMCA is justified, not under > the copyright clause of the Constitution, but under the commerce > clause? No, but that is a separate arguement. First of all, the commerce clause simply cannot restrict speech. The Copyright power was carefully crafted to balance the First Amendment. Moreover, Congress cannot erase the limits on its power that are found in narrow powers when using general powers. For example, trademarks (child of commerce power) cannot control functional aspects because of the "functionality doctrine" required to avoid preemption by the patent power. See Qualitex v Jacobsen Products described in : http://eon.law.harvard.edu/archive/dvd-discuss/msg08466.html Another example: bankruptcy regulation has specific Constitutional limitations requiring uniformity. Congress cannot override these. See Railway Labor Executives Association v. Gibbons described in: http://eon.law.harvard.edu/archive/dvd-discuss/msg00873.html Reductio ad absurdum: Could Congress pass a law that the House Commerce Committee could review and overrule Supreme Court decisions that impact commerce power jurisprudence? I'm sorry if these questions are so > scatter-shot; I must admit to some confusion about your point. > > By the way, are you arguing that Corley provided DeCSS solely for the > purpose of enabling interoperability? His own testimony stands in > opposition to such an argument -- I believe he stated that he > provided DeCSS, among other reasons, to educate the public, > allow them to come to their own conclusions regarding this > controversial news item, and so on. Am I overlooking something? In other words, he offered it to educate people on interoperability. This and Kaplan's rejection of Johansen creating DeCSS as "an end in itself" are distinctions without a difference. Both public learning and enjoyment are secondary effects of *any* act done solely for interoperability. __________________________________________________ Do You Yahoo!? Yahoo! Photos - 35mm Quality Prints, Now Get 15 Free! http://photos.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 13:27:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04787 for dvd-discuss-outgoing; Fri, 29 Sep 2000 13:27:11 -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 NAA04784 for ; Fri, 29 Sep 2000 13:27:10 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id B806D99C81; Fri, 29 Sep 2000 10:27:12 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 78680938C0 for ; Fri, 29 Sep 2000 10:27:12 -0700 (PDT) Date: Fri, 29 Sep 2000 10:27:12 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public Performances In-Reply-To: <39D3CDE9.4854F64@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 Thu, 28 Sep 2000, John Schulien wrote: > (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. > > Either the MPAA FAQ is wrong, and 109(c) permits one > to show a *purchased* copy of a DVD, as opposed to a > rented copy, in a tavern for instance, or I don't understand > why 109(c) wouldn't apply. Can anyone clarify? They define "display" earlier in the law. Playing the video doesn't count as display. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 14:20:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07000 for dvd-discuss-outgoing; Fri, 29 Sep 2000 14:20:58 -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 OAA06997 for ; Fri, 29 Sep 2000 14:20:54 -0400 Message-ID: <20000929182027.4300.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 29 Sep 2000 11:20:27 PDT Date: Fri, 29 Sep 2000 11:20:27 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Public Performances To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- K Phill wrote: > I have some ooolldd 78 records that don't have a copyright notice on > them. And in the middle of the record where the label is and > around the edge there is this; > > THIS THIS RECORD IS LICENSED IN USA FOR _USE ONLY_. AND ONLY UNDER > THE CONDITIONS PRINTED ON THE VICTOR COMPANY'S ENVELOPE > CONTAINING IT. NO LICENSE IS GRANTED IF THE RECORD IS NOT > DELIVERED IN THE ENVELOPE CONTAINING SAID CONDITIONS. SEE CONDITIONS. > I don't know how the history of the law evolved from this, but it > would be interesting to research out. The really sad thing is > that the law evolved in a time when congress wasn't bought. The Supreme Court has consistently rejected such things. Bobbs-Merril v Straus (first sale implies right to resell) and Quality King v. L'Anza (first sale implies right to import). The former case is from 1908, the latter was in the 1990's, and seems especially relevent. There are a couple others in the patent arena, both with similar results [Bauer & Cie. v. O'Donnell (1913); Motion Picture Patents v. Universal Film Mfg. Co. (1917)]. The simple fact is that you don't need a licence to do things which are not reserved exclusively to the copyright owner. Basically, publishers use notices for posturing. They want you not to do certain things so they falsely tell you that you are not allowed to. It's very similar to signing something that says you won't sue if you are injured due to negligence -- it carries no weight. __________________________________________________ Do You Yahoo!? Yahoo! Photos - 35mm Quality Prints, Now Get 15 Free! http://photos.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 14:56:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08748 for dvd-discuss-outgoing; Fri, 29 Sep 2000 14:56:08 -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 OAA08745 for ; Fri, 29 Sep 2000 14:56:03 -0400 Message-ID: <20000929185537.786.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 29 Sep 2000 11:55:37 PDT Date: Fri, 29 Sep 2000 11:55:37 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Status of Amicus 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 Have the folks working on the interest statement reached a consensus? If you have, then send me the current working copy. If not, who ever posted first should take the lead or yield to someone else who can drive this to consensus. I'll put the various section drafts together and get us closer to a single unified draft. Nobody has written anything for the authority section. Anybody up to it? Target length is 4 pages -- 112 lines. There is also the overbroad injunction section, but it'll be pretty short, I think (target 1 page -- 28 lines). Takers? __________________________________________________ Do You Yahoo!? Yahoo! Photos - 35mm Quality Prints, Now Get 15 Free! http://photos.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 15:01:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09094 for dvd-discuss-outgoing; Fri, 29 Sep 2000 15:01:47 -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 PAA09091 for ; Fri, 29 Sep 2000 15:01:45 -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 PAA27531 for ; Fri, 29 Sep 2000 15:01:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA10877; Fri, 29 Sep 2000 15:01:44 -0400 (EDT) Date: Fri, 29 Sep 2000 15:01:44 -0400 (EDT) Message-Id: <200009291901.PAA10877@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Status of Amicus Brief In-Reply-To: <20000929185537.786.qmail@web515.mail.yahoo.com> References: <20000929185537.786.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: > Nobody has written anything for the authority section. Anybody up to > it? Target length is 4 pages -- 112 lines. I've been meaning to get to this for a while, but other stuff has gotten in the way. I can certainly have it done by Tuesday evening, maybe before. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 15:06:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09300 for dvd-discuss-outgoing; Fri, 29 Sep 2000 15:06:19 -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 PAA09297 for ; Fri, 29 Sep 2000 15:06:18 -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 OAA13479 for ; Fri, 29 Sep 2000 14:06:22 -0500 (CDT) Message-ID: <39D4E839.EE485E58@uic.edu> Date: Fri, 29 Sep 2000 14:06:33 -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] Public Performances Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ken Arromdee writes: > They define "display" earlier in the law. Playing the video doesn't count > as display. Chapter 101 gives the only definition I can find ... To ''display'' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. which would appear to count playing a video as display, unless there's something I'm missing here ... From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 15:12:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09565 for dvd-discuss-outgoing; Fri, 29 Sep 2000 15:12:52 -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 PAA09562 for ; Fri, 29 Sep 2000 15:12:50 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13f5aW-0005Fa-00; Fri, 29 Sep 2000 21:12:52 +0200 Received: from localhost by sites.inka.de with local id 13f5aX-0002gt-00; Fri, 29 Sep 2000 21:12:53 +0200 Date: Fri, 29 Sep 2000 21:12:53 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public Performances Message-ID: <20000929211253.A10257@inka.de> References: <39D4E839.EE485E58@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <39D4E839.EE485E58@uic.edu>; from jms@uic.edu on Fri, Sep 29, 2000 at 02:06:33PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 29, 2000 at 02:06:33PM -0500, John Schulien wrote: > To ''display'' a work means to show a copy of it, either > directly or by means of a film, slide, television image, or any > other device or process or, in the case of a motion picture or > other audiovisual work, to show individual images > nonsequentially. > > which would appear to count playing a video as display, unless > there's something I'm missing here ... "to show individual images *nonsequentially*" (emphasis mine) Seems to suggest it's OK to display individual frames one at a time out of order, but not to play them as a film. 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 Sep 29 15:42:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14454 for dvd-discuss-outgoing; Fri, 29 Sep 2000 15:42:36 -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 PAA14451 for ; Fri, 29 Sep 2000 15:42:34 -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 OAA20074 for ; Fri, 29 Sep 2000 14:42:39 -0500 (CDT) Message-ID: <39D4F0BB.1511AB7C@uic.edu> Date: Fri, 29 Sep 2000 14:42:51 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Public Performances Content-Type: text/plain; charset=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 writes: > On Fri, Sep 29, 2000 at 02:06:33PM -0500, John Schulien wrote: >> To ''display'' a work means to show a copy of it, either >> directly or by means of a film, slide, television image, or any >> other device or process or, in the case of a motion picture or >> other audiovisual work, to show individual images >> nonsequentially. >> >> which would appear to count playing a video as display, unless >> there's something I'm missing here ... > > "to show individual images *nonsequentially*" (emphasis mine) > > Seems to suggest it's OK to display individual frames one at a time out of > order, but not to play them as a film. > > Sham The definition of "display" appears to have two possible interpretations: -------- (1) -------- To "display" a work means to show a copy of it ... by means of a ... television image ... (playing a DVD) or (meaning: "this is an ADDITIONAL way to "display" audiovisual works) in the case of ... (a work containing multiple images) ... to show individual images nonsequentially -------- (2) -------- To "display a work means to show a copy of it ... or (meaning: "The previous half of the sentence does not apply to audiovisual works") in the case of a motion picture ..., to show individual images non-sequentially. (Meaning that showing individual images sequentially is not "displaying" the work) ------ If playing a DVD isn't "displaying" it, then what is it? Ah! Here we go ... Section 101 again: > To ''perform'' a work means to recite, render, play, dance, or > act it, either directly or by means of any device or process or, > in the case of a motion picture or other audiovisual work, to > show its images in any sequence or to make the sounds > accompanying it audible. So apparently when you press play on a DVD, you are actually "performing" it, not "displaying" it ... Is this correct? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 16:50:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17755 for dvd-discuss-outgoing; Fri, 29 Sep 2000 16:50:37 -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 QAA17752 for ; Fri, 29 Sep 2000 16:50:36 -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 PAA04100 for ; Fri, 29 Sep 2000 15:50:41 -0500 (CDT) Message-ID: <39D500AE.6459ABA1@uic.edu> Date: Fri, 29 Sep 2000 15:50:54 -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] Attempting to "license" copies instead of selling them Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's a great example from 1910: http://www.irsmarketing.com/adventures/frankfilmneg.htm From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 17:19:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23638 for dvd-discuss-outgoing; Fri, 29 Sep 2000 17:19:39 -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 RAA23607 for ; Fri, 29 Sep 2000 17:19:37 -0400 Received: from ip61.bedford2.ma.pub-ip.psi.net ([38.32.10.61]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13f7ZG-0000Bj-00 for dvd-discuss@eon.law.harvard.edu; Fri, 29 Sep 2000 17:19:42 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public Performances Date: Fri, 29 Sep 2000 17:23:18 -0400 Message-ID: References: <39D4F0BB.1511AB7C@uic.edu> In-Reply-To: <39D4F0BB.1511AB7C@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 RAA23619 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 29 Sep 2000 14:42:51 -0500, John Schulien wrote: >If playing a DVD isn't "displaying" it, then what is it? > >Ah! Here we go ... Section 101 again: > >> To ''perform'' a work means to recite, render, play, dance, or >> act it, either directly or by means of any device or process or, >> in the case of a motion picture or other audiovisual work, to >> show its images in any sequence or to make the sounds >> accompanying it audible. > >So apparently when you press play on a DVD, you are >actually "performing" it, not "displaying" it ... I think the DVDCCA is performing it. After all, I'm not authorized to press play. __________NO-∞-DO__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 18:40:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18251 for dvd-discuss-outgoing; Fri, 29 Sep 2000 18:40:36 -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 SAA18248 for ; Fri, 29 Sep 2000 18:40:21 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA16770 for dvd-discuss@eon.law.harvard.edu; Fri, 29 Sep 2000 18:42:31 -0400 Date: Fri, 29 Sep 2000 18:42:26 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public Performances Message-ID: <20000929184226.C16406@eldritchpress.org> References: <20000929182027.4300.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000929182027.4300.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Sep 29, 2000 at 11:20:27AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 29, 2000 at 11:20:27AM -0700, Bryan Taylor wrote: > > --- K Phill wrote: > > I have some ooolldd 78 records that don't have a copyright notice on > > them. And in the middle of the record where the label is and > > around the edge there is this; > > > > THIS THIS RECORD IS LICENSED IN USA FOR _USE ONLY_. AND ONLY UNDER > > THE CONDITIONS PRINTED ON THE VICTOR COMPANY'S ENVELOPE > > CONTAINING IT. NO LICENSE IS GRANTED IF THE RECORD IS NOT > > DELIVERED IN THE ENVELOPE CONTAINING SAID CONDITIONS. SEE > CONDITIONS. >... > > Basically, publishers use notices for posturing. They want you not to > do certain things so they falsely tell you that you are not allowed to. > It's very similar to signing something that says you won't sue if you > are injured due to negligence -- it carries no weight. It's not quite the same with books as with phonorecordings when it comes to the law, but publishers of books also have put notices on them. British publishers for example used to claim that no copy of a work could be sold except in the original binding, and many British paperbacks as from Penguin state "not for sale in the U.S. for copyright reasons." Even British courts have now held that the former restriction is not legal, and so publishers have dropped it; the later restriction counts only for the original sale in England; a later resale in the U.S. is legal (IANAL). Both ought to count as attempts to restrain trade but publishers' business models tend to try to form copyright law around them. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 18:54:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18839 for dvd-discuss-outgoing; Fri, 29 Sep 2000 18:54:43 -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 SAA18835 for ; Fri, 29 Sep 2000 18:54:32 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA16798 for dvd-discuss@eon.law.harvard.edu; Fri, 29 Sep 2000 18:56:43 -0400 Date: Fri, 29 Sep 2000 18:56:37 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Attempting to "license" copies instead of selling them Message-ID: <20000929185637.D16406@eldritchpress.org> References: <39D500AE.6459ABA1@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39D500AE.6459ABA1@uic.edu>; from jms@uic.edu on Fri, Sep 29, 2000 at 03:50:54PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 29, 2000 at 03:50:54PM -0500, John Schulien wrote: > Here's a great example from 1910: > > http://www.irsmarketing.com/adventures/frankfilmneg.htm "FOR YOUR EYES ONLY" --Insert book here-- "BURN AFTER READING" Edison was considered such a genius back in the 1920s (because of the PR machines then) that he was almost a God. When he died, a reverent crowd assembled around his large desk. His son reverently unlocked the desk to discover the great unrealized projects Edison had been working on before his death. The son reverently took out a number of papers which proved upon closer examination to comprise dirty jokes. My American History professor in college (who retired this year) maintained this was true. I don't know if you can find those papers among those now being digitized and put online. Surely they will have to include the "PROPERTY OF EDISON MANUFACTURING COMPANY" on them, no? From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 19:31:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20537 for dvd-discuss-outgoing; Fri, 29 Sep 2000 19:31:28 -0400 Received: from web511.mail.yahoo.com (web511.mail.yahoo.com [216.115.104.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA20534 for ; Fri, 29 Sep 2000 19:31:27 -0400 Message-ID: <20000929233102.21241.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Fri, 29 Sep 2000 16:31:02 PDT Date: Fri, 29 Sep 2000 16:31:02 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Status of Amicus 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 --- "Robert S. Thau" wrote: > Bryan Taylor writes: > > Nobody has written anything for the authority section. Anybody up > > to it? Target length is 4 pages -- 112 lines. > > I've been meaning to get to this for a while, but other stuff has > gotten in the way. I can certainly have it done by Tuesday evening, > maybe before. A couple ideas that might be helpful. Use whatever you think is appropriate. Judge Kaplan missed the "First Sale" forest for the 109(a) tree. His notion of the concept is wrongly narrowed to reselling works after first sale. Besides ignoring 109(c), this opinion just can't be squared with Quality King v L'Anza, where the Supreme Court unanimously held that after first sale a work could be imported. The first sale doctrine is really just a restatement of property rights: a copy after it is sold is just ordinary property modified only by the few enumerated exceptions of the copyight Act. Moreover, 117 gives rights to the "owner" of a copy of software, and is also reasonably part of the "first sale" doctrine. A very good quote to support this is 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. Novell v. Network Trade Center 25 F. Supp. 2d 1218 (C.D. Utah 1997) Also here's a quote aimed at Kaplan's "consent" idea The author's consent to a reasonable use of his copyrighted works had always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained [citations removed] Harper & Row v. Nation Enterprises 471 U.S. 539 (1985) The DMCA's purpose is to enable internet distribution of copyrighted works. In order for the consumer to benefit from the product thereby received, they MUST decrypt the work, so it makes no sense to retain the decryption right beyond payment. Thus, like the right to vend, and the right to import, the right to decrypt cannot be restricted from owners of copies. Kaplan reads the statute favorably for copyright holders in violation of Sony, "the judiciary must be circumspect in construing the scope of rights created by a statute that never contemplated such a calculus of interests". __________________________________________________ Do You Yahoo!? Yahoo! Photos - 35mm Quality Prints, Now Get 15 Free! http://photos.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 21:59:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29314 for dvd-discuss-outgoing; Fri, 29 Sep 2000 21:59:10 -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 VAA29311 for ; Fri, 29 Sep 2000 21:59:09 -0400 Received: from swbell.net ([64.216.211.194]) by mta4.rcsntx.swbell.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with ESMTP id <0G1O00EAIG5MV7@mta4.rcsntx.swbell.net> for dvd-discuss@eon.law.harvard.edu; Fri, 29 Sep 2000 20:58:35 -0500 (CDT) Date: Fri, 29 Sep 2000 21:00:25 -0500 From: Jolley Subject: Re: [dvd-discuss] Status of Amicus Brief To: dvd-discuss@eon.law.harvard.edu Message-id: <39D54939.8C2E60C8@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: <20000929185537.786.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: > > Have the folks working on the interest statement reached a consensus? > If you have, then send me the current working copy. If not, who ever > posted first should take the lead or yield to someone else who can > drive this to consensus. > I wish we could come to a consensus. We took a short break to see how it will work with the rest of the brief. Here is what I have so far based what I have read from the other parts of the brief, Sphere's posting http://eon.law.harvard.edu/archive/dvd-discuss/msg08478.html and some more suggested modifications. I think we all agree on the first sentence and feel burdened by the length restriction. STATEMENT OF INTEREST The amici are engineers, programmers, scientists, lawyers, professors, students, and inventors, all of whom collaborate voluntarily on OpenLaw[1], an online public forum for discussing law. We find the lower court's decision to extend unlimited patent-like control over digital content deeply disturbing. The decision threatens many of us who are programmers involved in the Open Source movement; a recognized significant contributor to the nation's rapid technological advances. In order to protect our rights to express and share ideas through software, we have pooled our talents and expertise to aid the court in deciding how to apply copyright law to technology. We rely on copyright to protect our work and object to the plaintiffs' abuse of copyright and have serious doubts about the DMCA. We hope the Court will agree that the Constitution does not allow these abuses. --- [1]Although OpenLaw is kindly hosted by the Berkman Center for Internet and Society at Harvard Law School, we do not represent the Center's position, but instead write as individuals and as an independent community. See http://eon.law.harvard.edu/openlaw/dvd/. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 22:30:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA30489 for dvd-discuss-outgoing; Fri, 29 Sep 2000 22:30:28 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA30486 for ; Fri, 29 Sep 2000 22:30:27 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA21853 for ; Fri, 29 Sep 2000 22:30:33 -0400 (EDT) Message-ID: <39D55048.F17D9096@mediaone.net> Date: Fri, 29 Sep 2000 22:30:32 -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] Valenti vs. Lessig, October 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 Who else is planning on being there in the flesh? Sunday's going to be a busy day. My son's dragging me to Nader, then I'm dragging him to Lessig... -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Fri Sep 29 23:16:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA32201 for dvd-discuss-outgoing; Fri, 29 Sep 2000 23:16:43 -0400 Received: from chmls20.mediaone.net (chmls20.mediaone.net [24.147.1.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA32198 for ; Fri, 29 Sep 2000 23:16:42 -0400 Received: from mediaone.net (h0060b03c5b8b.ne.mediaone.net [24.128.18.77]) by chmls20.mediaone.net (8.8.7/8.8.7) with ESMTP id XAA14476 for ; Fri, 29 Sep 2000 23:16:48 -0400 (EDT) Message-ID: <39D55B1F.A94EE7A7@mediaone.net> Date: Fri, 29 Sep 2000 23:16:47 -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] Status of Amicus Brief References: <20000929185537.786.qmail@web515.mail.yahoo.com> <39D54939.8C2E60C8@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: > > Bryan Taylor wrote: > > > > Have the folks working on the interest statement reached a consensus? > > If you have, then send me the current working copy. If not, who ever > > posted first should take the lead or yield to someone else who can > > drive this to consensus. > > > > I wish we could come to a consensus. We took a short break to see how > it will work with the rest of the brief. Here is what I have so far > based what I have read from the other parts of the brief, Sphere's > posting http://eon.law.harvard.edu/archive/dvd-discuss/msg08478.html > and some more suggested modifications. I think we all agree on the > first sentence and feel burdened by the length restriction. > > STATEMENT OF INTEREST > > The amici are engineers, programmers, scientists, lawyers, professors, > students, and inventors, all of whom collaborate voluntarily on > OpenLaw[1], an online public forum for discussing law. > > We find the lower court's decision to extend unlimited patent-like > control over digital content deeply disturbing. The decision threatens > many of us who are programmers involved in the Open Source movement; a > recognized significant contributor to the nation's rapid technological > advances. In order to protect our rights to express and share ideas > through software, we have pooled our talents and expertise to aid the > court in deciding how to apply copyright law to technology. We rely on > copyright to protect our work and object to the plaintiffs' abuse of > copyright and have serious doubts about the DMCA. We hope the Court > will agree that the Constitution does not allow these abuses. > > --- > [1]Although OpenLaw is kindly hosted by the Berkman Center for Internet > and Society at Harvard Law School, we do not represent the Center's > position, but instead write as individuals and as an independent > community. See http://eon.law.harvard.edu/openlaw/dvd/. Following is what I last had as a Word doc. I'm of the opinion that whoever is going to pull together the brief into final form should edit it and/or alternative forms so as to best fit (in their opinion) the brief as a whole. There's no way we are going to achieve a Quaker concensus in the time and space available, and I'm quite willing to believe that the final draft of the brief is going to be done with our interests at heart. If we happen to have a few days after the brief as a whole is produced before we have to submit it -- then is the time to bitch and moan. Fiddling with this before we have some sort of whole is to risk not having any sort of whole at all. STATEMENT OF INTEREST The amici are engineers, programmers, scientists, lawyers, professors, students, and inventors, all of whom collaborate voluntarily on OpenLaw, an online public forum for discussing law. We are interested in helping the Court decide how to apply copyright law to technology. We are all deeply disturbed by the decision to extend unlimited patent-like control over digital media to movie studios and other big publishers. We do not represent commercial interests, but instead belong to the Open Source movement wrongly maligned by plaintiffs. The lower court's decision threatens our rights, freedoms, and community; without these, the current Internet would not have been invented, and the next will not arise. We do not seek to steal any property; instead, we object to the plaintiffs' mistreatment of the public domain in concert with Congress. We hope the Courts will agree that the Constitution does not permit this. -- Sphere. Government has no legitimate interest in protecting a monopoly from free speech. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 30 03:55:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA08587 for dvd-discuss-outgoing; Sat, 30 Sep 2000 03:55:24 -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 DAA08583 for ; Sat, 30 Sep 2000 03:55:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA17148 for dvd-discuss@eon.law.harvard.edu; Sat, 30 Sep 2000 03:57:31 -0400 Date: Sat, 30 Sep 2000 03:57:26 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Valenti vs. Lessig, October 1 Message-ID: <20000930035726.A16922@eldritchpress.org> References: <39D55048.F17D9096@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39D55048.F17D9096@mediaone.net>; from sphere1952@mediaone.net on Fri, Sep 29, 2000 at 10:30:32PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 29, 2000 at 10:30:32PM -0400, Sphere wrote: > > Who else is planning on being there in the flesh? I'd love to be there, since one of them is my lawyer. But we will have to be there a few hours early and wait in line, I guess. I'll be wearing a tan Red Sox cap and an olive drab Army jacket, so look for me. I look just like Whitey Bulger so the FBI will be looking at me too. From dvd-discuss-owner@eon.law.harvard.edu Sat Sep 30 04:00:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA08856 for dvd-discuss-outgoing; Sat, 30 Sep 2000 04:00:19 -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 EAA08819 for ; Sat, 30 Sep 2000 04:00:07 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id EAA17218 for dvd-discuss@eon.law.harvard.edu; Sat, 30 Sep 2000 04:02:26 -0400 Date: Sat, 30 Sep 2000 04:02:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Status of Amicus Brief Message-ID: <20000930040220.B16922@eldritchpress.org> References: <20000929185537.786.qmail@web515.mail.yahoo.com> <39D54939.8C2E60C8@swbell.net> <39D55B1F.A94EE7A7@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39D55B1F.A94EE7A7@mediaone.net>; from sphere1952@mediaone.net on Fri, Sep 29, 2000 at 11:16:47PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Sep 29, 2000 at 11:16:47PM -0400, Sphere wrote: > > jolley wrote: > > STATEMENT OF INTEREST > > > > The amici are engineers, programmers, scientists, lawyers, professors, > > students, and inventors, all of whom collaborate voluntarily on > > OpenLaw[1], an online public forum for discussing law. > > > > We find the lower court's decision to extend unlimited patent-like > > control over digital content deeply disturbing. The decision threatens > > many of us who are programmers involved in the Open Source movement; a > > recognized significant contributor to the nation's rapid technological > > advances. In order to protect our rights to express and share ideas > > through software, we have pooled our talents and expertise to aid the > > court in deciding how to apply copyright law to technology. We rely on > > copyright to protect our work and object to the plaintiffs' abuse of > > copyright and have serious doubts about the DMCA. We hope the Court > > will agree that the Constitution does not allow these abuses. > > > > --- > > [1]Although OpenLaw is kindly hosted by the Berkman Center for Internet > > and Society at Harvard Law School, we do not represent the Center's > > position, but instead write as individuals and as an independent > > community. See http://eon.law.harvard.edu/openlaw/dvd/. I like the following from Sphere a lot better than either the above or even my own earlier efforts and suggest we go with it unless we meet serious objections and have time to revise it. > STATEMENT OF INTEREST > > The amici are engineers, programmers, scientists, lawyers, professors, > students, and inventors, all of whom collaborate voluntarily on OpenLaw, > an online public forum for discussing law. > > We are interested in helping the Court decide how to apply copyright law > to technology. We are all deeply disturbed by the decision to extend > unlimited patent-like control over digital media to movie studios and > other big publishers. We do not represent commercial interests, but > instead belong to the Open Source movement wrongly maligned by > plaintiffs. The lower court's decision threatens our rights, freedoms, > and community; without these, the current Internet would not have been > invented, and the next will not arise. We do not seek to steal any > property; instead, we object to the plaintiffs' mistreatment of the > public domain in concert with Congress. We hope the Courts will agree > that the Constitution does not permit this.