mangeorge, you asked for further information about Canada’s legal system. Here’s a few introductory web-sites, from the Government of Canada’ homepage:
Canadian Charter of Rights and Freedoms
and the stars o’erhead were dancing heel to toe
Let’s see - the verdict went in favour of corporations, so there must have been a bribe?
Here’s a wild alternative position: the law was drafted to protect the copyright interests of the producers of the product, and the judge applied that law?
The judge has to apply the law that the legislature has drafted. You may not like the result in a particular case, but that means you don’t like that law, not that the judge was corrupt.
and the stars o’erhead were dancing heel to toe
Sure, I’ll wager. You deliver proof that the judge did not accept a bribe, and I’ll cough up $5 Canadian, mailed to you.
But, I don’t see how you could do so without being omniscient.
I can’t prove my point, I’ll admit, but neither could you prove the opposite, so I think the wager, which was suggested a little sarcastically, would be a bit pointless.
I’m interest in how you think you could prove this, or was it just intimidation, wanting me withdraw my statement that I think there was a bribe?
In something as obviously addled as this, it would definately make me suspect it.
The CSS encryption is supposedly copy protection, yet none of the pirate DVDs available on the market (in Asia, or on the net from companies in pirate-friendly companies) have cracked the DeCSS, they simply do a raw copy of the disk. This would be a pirate issue, if consumer DVD writers existed, or were expected to soon, that could write the whole disk (portions of blank are preburned over the encryption key area, to prevent people making raw copies) and if the size of the DVDs was large enough to support burning any but the smallest, least featured DVDs. The software was also developed by people on a mailing list (Livid) which was devoted to writing a Linux DVD player, good evidence that the software existed for a valid purpose, which is all the defense needed, if the CSS was a copy protection, which it’s not.
CSS encryption is used to enforce region coding, such that a disk labelled for region 1 (North America) won’t play in a non-modifier European player, or an Asian player, etc. This is so that the markets can be artificially controlled, such that media sold in one area stops working in another. The theatres use this to delay DVD sale in areas that have yet to see the movie in theatres.
Copyright law holds NO provisions for people controlling how the material sold can be used, for private consumption, with the exception of copying for non-backup purposes.
DeCSS isn’t patented, because that would make it open to view, (if it could be patented, probably in the USA…) so they left it as a trade secret. Trade secrets are NOT protected from reverse engineering. This secret was reverse engineered. Xing’s media player was disassembled and watched, it’s key was recovered, and through a weakness in the encryption, all the keys on standard DVDs were recovered. This is all legal.
If anyone has a case against the reverse engineering, it’s Xing, who asserts that the license prohibited reverse engineering. The MPAA should not be involved.
But, the MPAA is. They convinced Norwegian police to arrest the young man who initially published the source code, as well as his father. They used typical repressive tactics, like impounding everything from computers to cell phones. This is for something that isn’t a crime, as most is a civil case, violation of a licensing agreement. (Reverse engineering of a trade secret is not a crime.)
Then, the MPAA sought an injunction against many people, many John Does, to force them to remove copies of the DeCSS code. This is what the judge agreed to.
But, what for? The CSS encryption was market control, not copy control. And trade secrets are not protected. So the Digital Millenium Copyright Act doesn’t apply, because it only specifies protection for copy protection systems, and then only if the breaking of the protection isn’t needed to play/view the media. It’s VERY well established that the DeCSS code is the ONLY way to view DVDs on Linux, and that the goal of most people involved in the reverse engineering research were involved in trying to write a Linux player.
So, a judge made a ruling completely at odds with the law.
He did so in favor of a large corporate interest, one that is probably guilty of dropping a lot of money, or undue influence, on the Norwegian police, to get them to violate their citizen’s civil rights.
So, two choices. The judge is clueless when it comes to law, or he ruled as he did because of outside influence. The idea that he actually found with them for valid reasons is ludicrous, because the laws in this area are obviously against them. Sure, restraining orders are granted much more easily than final judgements, but to squelch the freedom of people to discuss an algorithm… free speech was overruled because some company MIGHT have a case? Since when has it been illegal to discuss way in which something illegal may be done, let alone discussing something that’s not illegal, nor a clear and present danger to anyone?
You can interpret it how you will, but I see someone getting a large bribe for selling out.
It’s basically terrorism via legal system, throw lawyers and bribes at the system until the little guys are all bankrupt.
WhiteNight said:
You could not be more wrong. You could try, but you would not be successful. (Extra credit to the first person to identify the source of that quote!) In any event, READ THE DAMN LAW before offering your opinions on what the law says!!
The Digital Millennium Copyright Act (17 U.S.C. § 1201 et. seq.) makes it illegal to “circumvent a technological measure that effectively controls access” to any copyrighted work. No person may “…manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part” designed to circumvent such a technological measure. To circumvent means “descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair,” technology that controls access to copyrighted materials.
“DeCSS” enables users thereof to break the CSS copy protection system and make digital copies of copyrighted DVD movies. It may well also be useful for Linux users, but that’s irrelevant. Linux users do not have a constitutional right to use DVD on their systems.
Now, as you have correctly pointed out, this ruling is only a preliminary injunction. In order to win a preliminary injunction, the party seeking the injunction must first show that irreparable harm will result if they don’t get it. In other words, they don’t dare wait to get the final trial ruling, because by the time that happens, no amount of money will compensate me. For example, if you had pictures of me cavorting naked with Ernest Borgnine, and were distributing them on the Internet, I would seek a preliminary injunction, because by the time we got to trial and I proved you didn’t have the right to distribute them, they’d already be all over the place, and no amount of money could compensate me.
The movant (the party seeking the injunction) must also show a likelihood of success on the merits of their claim.
Did the MPAA meet those tests? If they did, then the judge’s decision was correct, and a fair statement of the law, and you, WhiteNight, are full of it. If they didn’t, then I agree we can at least raise the question of bribery.
Irreparable Harm
This is an easy one. Copyright infringement is already presumed to create irreparable
harm. This is settled law; see Fisher-Price v. Well-Made Toys, 25 F.3d 119, 124 (2d Cir. 1994).
It is true that no one is saying that the defendants are infringing on any copyrights. But they are distributing an illegal system that allows others to easily infringe on copyrights. For the purpose of deciding if there is going to be irreparable harm, it’s basically the same issue. The movie people face the same harm from this activity as if the defendants were directly copying movies.
If the injunction were denied, and the defendants lose the trial, how would the movie people show how much they were damaged? They can’t say, “Hey, I would have sold two million copies of ‘The Matrix’ if pirated copies didn’t screw me!” So there would be no way to know what the damage suffered would actually be if the contested action is allowed to continue. This also argues in favor of “irreparable harm.”
Likelihood of success on the merits
DeCSS defeats CSS, the encryption system used by the movie people to protect their movies. The use of such a system is squarely prohibited by 17 U.S.C. § 1201. Even if the Linux claim is correct, playing a DVD on a Linux system without a licensed CSS “player key” would “circumvent a technological measure” that controls access to a copyrighted work anyway! So using the system for viewing DVDs under Linux is still illegal. As to your “reverse engineering” claim above, the legislative history and notes for 17 U.S.C. § 1201 make it obvious that Section 1201(f) permits reverse engineering of “copyrighted computer programs only” and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies. So the reverse engineering exception is inapposite here.
The MPAA therefore has an excellent chance of prevailing on the merits when this gets to trial.
For these reasons, the MPAA is entitled to a preliminary injunction against the distributors of DeCSS. No bribery, no “big evil corporation against the little guy.” Just a correct application of the current law.
Now, you may think that 17 U.S.C. § 1201 et seq. is unfair… that you have a right to copy any movie once you buy the DVD.
But that’s not what the law says.
Sheesh!
- Rick
While I can not take issue with what you say here because you preference it as your experience, I would add, however, that in the Family law arena, there are many people who are forced to represent themselves in divorce actions because they have been sued for divorce and can’t afford an attorney. (Unfortunately, there are not enough legal aid lawyers to meet all the need.) These people who appear “pro se” (i.e., representing themselves) do not fit your stereotype. They’re just poor folks who have to represent themselves.
terggie
FIVE DOLLARS CANADIAN??? ROFLMAO.
Well, Manhatten, don’t spend your $ 3.75 cents all at once. Make it last…
Cartooniverse
If you want to kiss the sky, you’d better learn how to kneel.
Family law is indeed an exception, and in some states the law is written to allow people with simple divorces to do it easily without a lawyer (short marriage, no real estate, agree on the disposal of any other marital assets, no kids? Bingo, no problem.) Should be more of that rather than less; but then, family law issues ought to be handled completely differently rather than through our adversarial system.
-Melin
Siamese attack puppet – California
Still neglecting and overprotecting my children
Lest we get into a repeat of the unfortunate 12(b)(6) business that happened in another thread, let me hasten to add that I am well aware that the full statement of the test for a preliminary injunction is (1) showing of irreparable harm, AND (2) either (a) likelihood of success on the merits, OR (b) sufficiently serious questions as to the merits to make them reasonable grounds for litigation and a balance of hardships tipping decidedly in favor of the movant. Since the question above could be resolved by 2a, I chose not to mention 2b. 
- Rick
Melin said:
But, Mel, all lawyers are part of a massive conspiracy against the common man. It says so right here on page 22 of the Lunatic Fringe for Dummies book.
To respond to the OP(and ignore the various and sundry tangents this thread has undertook.)
Why are judges lawyers?
Well, what’s a judge’s job. To correctly interpret and apply the law (and occasionally to make factual determinations). In order to intrepret or apply the law, one must know the law. In this country we have a system which certifies when people have a certain level of legal knowledge. We have decided, as a society, that our judges must have at least that must legal knowledge before they are empowered to make legal decisions.
I don’t think that one has to have a legal background in order to make wise decisions. A person could be infinitely fair, impartial and wise, but I wouldn’t want him to be my umpire if he didn’t know the rules of the game.
Plunging like stones from a slingshot on Mars.
[baiting]Now Rick, is that the standard for preliminary injunction in all the federal circuits?[/baiting] 
Oh, man - there’s one in every crowd.
It’s unquestionably the law in the Second Circuit, which includes the Southern District of New York, which is the venue for the case at bar. See Polymer Technology v. Mimran, 37 F.3d 74, 77-78 (2d Cir. 1994); Bourne Co. v. Tower Records, Inc., 976 F.2d 99, 101 (2d Cir. 1992); Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).
In my neck of the woods here in Virginia (Fourth Circuit), the test is a little different. The court must balance the hardships likely to befall the parties if the injunction is, or is not, granted. Balancing of hardships requires the court to weigh the relative importance of four factors: (1) the likelihood of irreparable harm to the plaintiff; (2) the likelihood of harm to the defendant if the injunction is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest. See Manning v. Hunt, 119 F.3d 254, 263 (4th Cir. 1997); Rum Creek Coal Sales v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991)); Blackwelder Furniture Co. v. Seilig Manufacturing, 550 F.2d 189, 196 (4th Cir. 1977).
As to the other circuits… beats me. The Supremes don’t seem to have addressed this test in any meaningful (non-dicta) way – at least based on a very cursory search. But the fact that two circuits still appear to have different law is a pretty good indication the Supremes haven’t touched it yet.
But what do I know? This civil law stuff confuses the heck out of me, anyway. Keep me in criminal law, where life is simple.
- Rick
The reason judges are usually required to be attorneys has to do with what a judge does.
We insist on the right to trial by jury precisely because, when the issue is important enough, we want the facts determined by impartial people who aren’t part of the judicial branch (that includes all us attorneys, who are officers of the court, admitted to bar, etc. (in other words, at its basic level, your attorney is your spokespeace provided to you by the system to speak to the system). Yes, I know it’s evolved a bit since then, but you’ll notice it is the court system that sets our rules of conduct, most places <significant look over reading glasses>).
Judges don’t decide who is guilty or innocent (unless you wiave a jury, or are being charged with a minor crime/infraction). Judges don’t decide civil cases unless the same things are true. What a judge does is decide how the rules of the system apply in the case presented. They are the arbitrators of disagreement between the parties.
Yes, you can theoretically train a person to be a judge who isn’t an attorney and hasn’t been through law school. But the training would be awfully similar and, after all, attorneys in general do have a better chance of understanding the effect of a judicial decision.
An exception is made to the law you quoted, in the event that the copyright protection is being circumvented for the purposes of viewing/using the media.
Otherwise there’d be media that it would be impossible to use, if the company went bankrupt, nobody would be able to use their data on the next generation of computers.
Well, that’s the question. If you assume that any chance of their being harmed in any way warrants a preliminary injunction, then sure. But if you would demand they have to be proved that they would be harmed by an illegal action, not by their own stupidity, then I don’t think they came close to deserving it.
It has this ability, but only as a step involved in letting the movie be viewed. It’s the VCR issue again. The DMCA allows for this because it’s part of writing a viewer.
It appears, to me, that the industry is getting a judge to prevent legal use of their media because they lose the ability to control the use of the media, not because of piracy. Piracy is already rampant with DVDs, and will not be affected at all by this, because it’ll still be easier to just bit-copy the whole thing.
Just a partial application of the current law, they’re looking only at the restrictions, not the allowances.
Somehow, I think the idea of a wager on a board like this would be the public admission that the loser agrees the winner is right.
Tell you what, you don’t have to bother reading my posts unless I offer at least $100… I’ll send you email and tell you when it’s worth your expensive time.
Intimidation is a different word than I’d use. I was trying to shame you into withdrawing your charge. It’s one thing to tar an entire profession as being crooks. That’s bad. And does nothing to help Stamp Out Ignorance.
It’s quite another thing to make a specific charge of a specific crime against a specific person with not a shred of evidence. That’s reprehensible.
Livin’ on Tums, vitamin E and Rogaine
White Night: when I talked about what the Digital Millennium Copyright Act (17 U.S.C. § 1201) says, I quoted it. I referenced specific sections in support of each point I made.
Now you come along and say, in essence, “No, it doesn’t.”
But where are YOUR quotes? Why aren’t you specifically mentioning exactly how the law supports your contention?
You say, for example:
Why don’t you quote those allowances, and show how they apply?
I have read the entire law, and I don’t see the allowances that you are describing. So tell me where they are, please.
- Rick
Reverse Engineering Exception. Section 1201(f) allows software developers to circumvent technological protection measures of a lawfully obtained computer
program in order to identify the elements necessary to achieve interoperability of an independently created computer program with other programs. A person may
reverse engineer the lawfully acquired program only where the elements necessary to achieve interoperability are not readily available and reverse engineering is
otherwise permitted under the copyright law.7 Furthermore, a person may develop and employ technological means to circumvent and make available to others the
information or means for the purpose of achieving interoperability.
That does mention programs specifically, not movies, but then, it was the programs that were reverse engineered, to be able to view the unmodified movies.
That’s the best I can find, and it may not be all of it. The point though is that there are exceptions for breaking copyright protection when the goal is to use the copyrighted work.
Will you post a link to the copy of the statute you used? I couldn’t find the full text.
Well, shame, whatever. I do admit I don’t have proof, but it looks very fishy. I will still publicly state that I think it’s likely that someone ot handed a fair bit of money, because I see what appears to be the MPAA walking all over the rights of a bunch of people, in a case where those people aren’t breaking any laws.
I think it’s worse to tar a whole profession as thieves, which I didn’t do. If you read my first post, you’ll see I said that I think it’s natural that lawyers have a bad image, but only because the bad ones stand out so much more. I didn’t say that all lawyers are thieves, I just offered an opinion on why a lot of people think they all are.
I did say that I think that judge likely took a bribe, but I’ll modify that to saying that I think he was influenced outside of his role as an impartial judge. Either bribes, blackmail, favours owed, whatever. I don’t see how a reasonably clued individual looking at the case could decide in favour of the MPAA.
That doesn’t strike me as such a reprehensible evil, because that’s saying, based on the specific actions of one person, I think they’re crooked. That’s one person, not a whole profession, and based on his actions, not based on a stereotype.
White Night, I think this is the cite to the provision Bricker is discussing:
and the stars o’erhead were dancing heel to toe
WARNING! NITPICK WARNING!!
No one in the United States appears in propria persona. That is an archaic pleading term that deals with contesting jurisdiction without using an attorney admitted to practice before the court (since in the old days that could constitute an admission of jurisdiction).
People representing themselves are appearing pro se. Or, you can skip the Latin (usually a wise idea, frankly) and say they are appearing for themselves.
I can’t usually agree with “Nanobyte” when he gets controversial, but I can give a few horror stories…
I’m 51, and I’ve never served on a jury. By this time it has become quite obvious that the reason is that during voir dire I speak in complete sentences and make nice distinctions.
I have been a victim of outright barratry and perjury by a member of the legal profession. Every member of the NJ bar seems to know of this man and of his character, and every member of the NJ bar apparently dismisses it with a nudge and a wink.
I have heard the words, “The judge is his best friend; you’ll have to settle.”
I’m old enough to remember when ambulance chasing was considered discreditable. Nowadays it seems to be de rigeur.
John W. Kennedy
“Compact is becoming contract; man only earns and pays.”
– Charles Williams