Thanks for the link JTI. That helped a lot.
Assuming arguendo that the above definition of 1201(f) is correct, it doesn’t apply. Why? Because the plain language says, “…circumvent technological protection measures of a lawfully obtained computer program.” The protection measures at issue here are for movies, not for computer programs.
Even if there is a slight chance your interpretation will end up being the correct one, though – you have to admit it’s only a slight chance.
What the judge decided, as I explained in detail a few posts ago, was that (1) the MPAA would suffer permanant harm if this kept going, and (2) the MPAA had a good chance of winning their claim.
If you believe the decision was wrong, you have to show that either they won’t suffer permanant harm, or they don’t have a good chance of winning at a trial. Certainly, the reverse engineering thing seems, on its plain language, not to apply here.
- Rick
By the way, WhiteNight – I am not a judge. But if I were, and I were deciding this issue, I would have ruled in favor of MPAA as well, for all the reasons I listed above.
And MPAA hasn’t bribed me at all!
How do you explain this?
- Rick
They should fall under the same statute, a program is a series of instructions a computer follows. A DVD movie is the same. An MPEG is just a series of instructions to be interpretted at runtime that produce a movie.
Yes, I do admit that. I think though that it’s because the MPAA is throwing around large sums of… political influence.
Sure, the MPAA would suffer a lot of financial harm, if they were relying on market control, via controlling the makers of DVD players, and market segmentation via the region codes. But none of that is a copyright protection. Nobody owes them anything because they made a bunch of business decisions that ended up being unwise. They would NOT suffer any financial harm if they were relying on CSS as copy protection because it is not.
CSS isn’t copy protection. I’ll say this till you understand it. Copy protection stops copies. CSS does NOT stop copies. You can make a bitwise copy of a commercial DVD with any equipment that can write DVDs. All pirated DVDs were made this way, and as a friend of mine who just got back from Thailand can attest, there are plenty of pirated DVDs floating around, without the help of DeCSS.
CSS only enforces the region coding, and other ‘features’ like telling players to not fast forward through some sections (My friend (another one) bought “The Mummy” and was unable to fast forward through the preview ads for other movies).
If the MPAA stands to lose money based on this, tough. It’s like buggy makers suing Ford for restraint of trade.
Only their blatant lying, saying that CSS is a copy protection system, is allowing them this trial. (Yes, they are lying. The encrypted contents can be read of the disk without CSS, CSS is just needed to get a playable movie. So movies can already be easily copied without CSS being reverse engineered.)
I do realize injunctions are supposed to be easier to get than winning the trial, so that you can be protected while you go to trial. I just think that they have no case. The only way you could see them with a valid case is to not understand the technical issues involved.
I don’t think you want my honest opinion on this…
To put it mildly, I think you lack all comprehension of the technical issues involved, such as, if CSS is copy protection. Also, I think you didn’t like the tone of my original message and are transfering your feelings towards me onto any opinions I may have.
Hmmmm let me see.
One guy thinks his opinion of the legal and technical issues is best because he believes he understands the technical issues better than the other.
The other guy believes his opinion of the legal and technical issues is best because he believes he understands the legal issues better than the other.
Neither is willing to budge an inch.
Thank god that a person who understands the legal issues will decide the legal questions, and that the people who are concerned about the technical aspects can testify about them. Not that the result will change anyone’s opinion: cf. the OJ Simpson case.
I suppose we do look funny, from the pov of someone watching the argument.
I sort of agree with you, that it’s good that the matters are being dealt with by the people who are more skilled in them, but…
When I see things being handled by legal types, who have no idea of the technical issues entailed, I see people being run over. The side with the most lawyers represents their case, the other side is basically a bunch of John Doe’s, unable to attend the trial, let alone obtain adequate representation. The side with the legal expertise is making sure they’re seen as the side with the technical expertise. So the court hears a distorted version of reality from the corporate side of the trial.
I can’t imagine how such a travesty could occur, if the judge were informed. The only options I can see are that the judge is uninformed, or that he’s in the pocket of the MPAA.
Bleh. It’s so frustrating, seeing the same thing over and over again. Rich company vs small organization, big company railroads an injunction through, or ties case up in court, waits till either lack or business or legal fees kills the smaller. Then they drop the suit, after all, suing a broke company is pointless. So they never have to even go to court, just have a potential case and use the injunction to kill anyone who bugs them.
Not hard to get a little disillusioned.
This is actually a good point.
I said:
And WhiteNight replied:
You raise an interesting point.
By that logic, any digital data is a “program.” A Microsoft Word document, in raw digital form, isn’t what you see on the screen. It contains formatting codes which it passes to the operating system, which passes instructions to the video card, which draws pixels on the screen.
I don’t have any doubt, though, in interpreting the word “program” as having a meaning that excludes digitally stored movies. If you don’t, then much pf the protection conferred upon digital movie publishers by the law becomes meaningless, or at least weakened.
But I admit that the above is a matter of legislative interpretation, not a matter of using the plain language of the law. I am very certain my interpretation is correct, and as soon as I get a free moment I’ll look to see if there is any case law that holds it up. For the moment, I grant you that there’s a slight ambiguity here.
Again, though, all that has to be shown is (1) unfixable harm, and (2) good chance of winning. Since there’s an excellent chance that the interpretation is as I suggest, the court’s decision about an injunction was still correct.
Well, like the man said when he saw the dark-haired Swede… that’s a Norse of a different color. If your point is that the MPAA used money to obtain laws that work in their favor, to the detriment of “the little guy” – then I agree you’re almost certainly right!
There is no question that this is a catch-all law that heavily favors the recording industry. And I have no doubt in my mind that campaign contributions and other heavy pressures were brought to bear to get those laws passed. By definition, the “little guy” has no way of matching that.
So if that’s your contention, you have no argument from me.
But I thought you were suggesting that the judge was suspect, and I’ve been tryign to show that he applied the law correctly. The law itself may be unfair, but that’s Congress’ fault, not the judge.
Oh, I know. I never said CSS stopped copies. I never said CSS was copy protection.
What I said was, “DeCSS defeats CSS, the encryption system used by the movie people to protect their movies.” I never said, “…protect their movies from copying.” CSS protects, as you suggest, from things like fast-forwarding through previews, from selecting portions of the movie to copy, rather than the whole disk, and similar fucntions.
CSS controls access to the copyrighted movie data on the DVD. The law says that you can’t
I am very familiar with the difference. When I was in college, I wrote my own low-level disk driver for the Apple Lisa to permit me to copy floppy disks that were copy protected (the famous “spiral tracking” copy protection scheme for Borland original Mac disks). My undergraduate degree is in computer science. So, with all due respect, I would suggest that I do grasp the technology here.
- Rick
By the way – I wrote that driver in Motorola 68000 assembly language.
So there.
- Rick
Ok, I misunderstood you then.
Ok, by my reading, access means, being able to view the work at all, not what you do with it at the end.
By this, I mean, you access a book by picking it up and opening it. If I control your access to the book, I control you picking it up and opening it, not if you skip pages once you’re reading it.
The courts may view access control as anything you do while watching the movie, from fast forwarding to resizing the screen, but it seems… incorrect. Usage control would be appropriate. You access the material, then use it. Access controls prevent access. Once you can access it you can copy it, etc. Thus access measures would be things like copy protection.
Yeah, that’s about the time I got into ASM, so I could rewrite the RWTS on my A2, for… much the same reason as you did.
It seems so. I had read your message as saying that CSS was copy protection, and thus reverse engineering it fell afoul of the DMCA. If you do agree that it’s not copy protection, then our disagreement comes down to what is meant by access control. To me, access control mean copy protection, the means by which you control access to the data.
A text file can be a program, for a lisp machine, and data at the same time. I would draw the line between the two based on their portability. If a file can be viewed on any platform, and is primarily the easiest reproduction of data (ie a program consisting of one print statement and a two page story, or a bitmap graphic, etc) then it is data. If a file contains instructions to manipulate data not necessarily in that file, then it’s a program.
The line does blur a bit, with rich text formats, etc.
But, anyways…
What was reverse engineered was the client side of CSS (of course, at the same time, the other parts of CSS fell), as used in a DVD viewer. The programs which control access were reverse engineered for reasons of interoperability. The actual movie data was untouched.
That is why I think the program provision is valid.
I’ve already explained my view on the access control vs usage control.
Then, there’s the provision that copy protection violating (access control?) measures were already illegal (I think) if their main purpose was to violate copyright. The MPAA challenged VCRs based on this when they first came out, saying they were tools of piracy only. That was turned down because VCRs have legitimate uses under the fair use provisions. I think DeCSS does, as part of writing a viewer. Given that the people who developed it did so as part of a project to view DVDs on alternative platforms, I think it’s obvious that DeCSS was a means to an end, not the end in and of itself.
With all of that, I don’t think this the decision as made was valid.
That was part of it. That was more the general feeling of my first post, that lawyers are involved in that sort of thing, so obviously not all lawyers have a highly developed sense of ethics, thus it’s not hard to see why they all, by association, get a bit of a bad name.
But, yes, I did also say I thought the judge was bribed, and I later revised that to say unduly influenced.
I still feel that way. I can’t see how you could read the laws are written and find for the MPAA. Not only do I find the law stretched at best, to cover this scenario, but the handling seems shoddy.
But, the law seems very badly written, hard to make sense of, not just totally in the interest of the MPAA, so it’s hard to say. It is in unclear cases like this though where the side with the most lawyers tends to win.
Is it possible to get the trial transcripts on the web? I’d be interested in knowing exactly what the MPAA claimed.
Just checking in! 
Peace,
mangeorge
That’s not a bad distinction.
But in some applications, it flies in the face of common sense. Is a JPG file a program? How about any generic TIFF? How about MPEG or AVI?
I would suggest that each of those file formats are meant to contain and present data. The data they contain may be copyrighted. A technological measure may be used to control how that data is presented.
And the purpose of the DMCA is to make it illegal to circumvent that control.
That’s all.
Is there a “server side” to CSS? I think CSS, as refers to the stored data, is an encryption method, rather than a program. As refers to the “client side,” it is the process of decrypting that information. The “client side” is required to have a licensed ‘player key’ to decrypt to CSS-encoded information.
You have a very good point here. I admit that a usual, normal, everyday meaning of “access,” is a yes-or-no proposition.
But another valid meaning refers to granular control of the method. For example, Windows NT’s Access Control List scheme controls (by group or user name) NTFS file permissions well beyond read or don’t read. I can set file and directory access permissions to list, read, add, add & read, change, change permissions, or take ownership. All of those permissions, which clearly go beyond “yes” and “no”, are fairly described as “access.”
When a law has a clear meaning, the courts are required to apply it. They can’t speculate on what the legislature might have meant. But when a law has an ambiguous meaning, a court may look to legislative intent, and examine the legislative history, previous versions or drafts, in an effort to determine what the legislature meant when they drafted the law. They must assume that a law never has nonsensical results, and they must read it in pari materia with other laws – that is, they must assume that all laws are meant to work together, and not contradict one another.
In this case, I agree that the law is ambiguous - “access” may mean either “complete denial or permission” or it may mean “control of the type of manipulation”. So we cannot apply the plain meaning, because we’re not sure what it is.
But if we look to the House and Senate hearings that accompanied the passage of this legislation, I think it becomes reasonably clear that the intent of the word “access” is more in line with the second meaning (the Windows NT meaning, if you will) above. See S. Rep. No. 105-190 (1998); H.R. Rep. 105-551(II) (1998).
You might have done better than the actual lawyer for the defendants; that is another excellent point.
But here’s why I think it fails:
“Fair use” is an exception to the Copyright Act, and is defined in 17 U.S.C. § 107. Basically, it says that a person does not violate copyright if he uses a portion of a copyrighted work “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”
I suppose what you’re suggesting is that the development and distribution of DeCSS fall into the category of research. If true, then the developers and/or distributors of DeCSS appear to have a valid defense against copyright infringement.
BUT - they are not being sued for copyright infringement!
They are being sued for offering to the public and providing technology primarily designed to “circumvent technological measures that control access to copyrighted works” in violation of Section 1201 et seq. of the DMCA. If Congress wanted the fair use defense to apply to the DCMA, as well as the Copyright Act, then it would have explicitly said so.
Again, I stress that my point here is in defense of the judge’s ruling, not the fairness of the underlying law. The judge accurately applied the law in granting the preliminary injunction.
- Rick
By the way…
Heh. I occurs to me that what I did then (1983) would now be illegal under the DMCA. Pretty funny. -RM
bricker,
I was going to ask you about that…
and the stars o’erhead were dancing heel to toe
Well, in my defense… there was no such law back then. So writing the driver was not illegal. But the follow-up activities (pirating the Borland disks for all my friends) were most certainly illegal. All I can say is (1) I was wrong, and (2) I was young.
Oh. (3) Statute of limitations. Whew.
- Rick
*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. *
And libellous, to boot, since arguably stated with malicious/negligent disregard for the truth.
An MPEG is a straight forward way to store the data, as in, it’s all designed to store data. A .exe wrapper around a zip file, or Postscript document, where the document is a program, are where the line starts to blur imho.
But, as you said, that is really not relevant to the case at hand.
This is what I think should be struck down, again out of the scope of the argument, but controlling access to media, except to stop it being distributed, strikes me as fundamentally wrong. This is where market forces should apply. If everyone wants a $50 rebate on the DVD player because the MPAA kicks back on all DVD players that force you to watch the ads, then great, but for everyone else, they should be able to purchase non-crippled machines.
Well, not a server side, but, the application decrypting the data is a client, even if there is no real server. Or maybe the DVD drive itself could be seen that way.
And the client side isn’t required to have a key, the client side just needs to decrypt the information. The only requirement for a key is if you are forced to do it the MPAA’s way.
I agree that these are access controls. But, these are in the context of operating system controls. The data isn’t (except in the ‘read’ case) being controlled, just the access to that specific copy. It’s to prevent accidental overwrite, etc. And even still, giving access to a certain portion of the data is still an all or nothing. If I give you read access to only one field in one record of a database, you can do anything you want while reading it. You can read it, read it backwards, ignore it, compose anagrams of it, etc. Access control the way the MPAA are claiming would not allow that, you’d be able to look at the data, but only to do one thing with it, you’d have to spend the same ammount of time on each field, etc. That’s usage. By my reading, access control does not also cover usage control.
Agreed. But the judge’s explanation called CSS a copy protection system, which it is not. He wasn’t thinking of distinctions between access and usage controls, he thought CSS was useful in preventing copies. (I’ll say as an aside, that ‘useful as’ must be implicit in that, or you could include anything and call it copy protection, thus making it illegal to modify. An example would be usage tracking, reporting every viewing to a central database.)
I have no idea where to find this sort of thing, URLs would help. The DMCA and the judge’s decision I found, partly thanks to Jti, partly through the EFF. (I’m Canadian, US law isn’t something I know how to find except for the really famous parts.)
Perhaps. They didn’t seem to, from the judge’s notes, have a coherent case.
But, I think they were hindered by being tried together. Some of the things the judge noted, such as the behaviour of some people in handing out DeCSS source, and in professing to want to pirate DVDs, seem to be the actions of all the defendants, even though they may not themselves have done any of that.
Yes, and here their defense fell apart, or was ignored.
They weren’t sued for infringement, they were (essentially) sued for breaking copy protection measures. But, breaking those are allowed when there is a valid primary use, like the VCR had, and the infringement is secondary. That there existed an application for which DeCSS was targetted would have been valid in the defense, because it would have gone to show the intent. Intent is obviously important because the judge mentioned that he believed the obvious intent was piracy, as demonstrated by various (non-defendant) people.
http://www.eff.org/IP/Video/MPAA_DVD_cases/20000202_ny_memorandum_order.html
That’s the explanatory order, if you haven’t read it.
Here he states that CSS is a copy protection system…
Here he says something misleading, and easily checked. I remember when the CSS code, and DeCSS code (DeCSS has mo
No 'blem, Rick, I’m sure we can get you a good lawyer! 
-Melin
Siamese attack puppet – California
Still neglecting and overprotecting my children
OK, rather than letting this post get longer (and I think we’ve moved in GD territory, by the way) let’s see if we can summarize.
Your general feeling is that it’s wrong for the law to permit copyright holders to do anything more than sell their work. Once their work is legitimately purchased, you think the purchaser should be permitted to fast forward, view in slow motion, edit out scenes, all without technological measures stopping them.
I don’t agree. But we can surely agree to disagree. If I were a movie maker, I believe I have every right to say, “If you don’t agree to watch my movie at normal speed, I’m not going to sell it to you. You don’t want to watch it at normal speed? Don’t buy it.”
You believe the word “access” should be interpreted consistent with your view, above. So far as I can tell, this is an issue of first impression. That means that no court has yet ruled on exactly how “access” should be interpreted as it’s used in the Digital Millennium Copyright Act. So far, the only ruling on point is a United States District Court judge ruling on a preliminary injunction.
The issue, in other words, is very much up in the air. Your interpretation may yet be found to be the correct one. I don’t agree with it, but no law is established on the point.
In fact, let’s cut to the chase:
The factors in the Second Circuit for winning a prelininary injunction have been described in detail before. I assume you agree that those are the law.
So - if the judge’s decision about the preliminary injunction was wrong, which factor was flawed?
(1) The plaintiffs will suffer irreparable harm without an injunction.
(2) The plaintiffs have a good chance of prevailing on the merits.
- Rick
Whew.
Nothing like a good affirmative defense to help out a good lawyer.
- Rick
[QUOTE}Bricker: I don’t agree. But we can surely agree to disagree. If I were a movie maker, I believe I have every right to say, “If you don’t agree to watch my movie at normal speed, I’m not going to sell it to you. You don’t want to watch it at normal speed? Don’t buy it.”[/QUOTE]
You are right. I do not support any form of what I call usage controls, in any way. I think copyright law (as existed earlier) controls usage just fine.
Controlling usage, or controlling user actions while using, gets into really hairy areas. What if I write an OS and forbid any usage of it for benchmarking purposes?
That’s what the software industry’s version of the MPAA is trying to push in the UCITA (I think), a shrinkwrap, usage-controlling type statute.
As soon as you allow any usage controls, it’s a small step from there to saying “you can not use this product in any way that could be construed as harmful (by us) to our company.” Then, people using MS Windows could be sued for writing something critical of MS. And the UCITA is looking to be this restrictive (ie, control free speech in a wide area, not just wrt the specific copyrighted material.)
Both. For (1), the plaintiffs only suffer harm if they should be allowed for force people to watch ads, etc. If having complete and total control over the way someone views the movie was guaranteed by law, then they might suffer damages. But, this is not how I read the law, and it’s vastly different than the spirit of copyright law so it strikes me as being the wrong interpretation, both of the DMCA, and second, of any law that supposedly helps the people (like copyright law is supposed to do.)
And second, the MPAA only, imho, has a good chance of winning a later trial if you ignore the issues I posted earlier of access controls being circumvented, but that being allowable because the primary purpose was legal viewing. They only easily prevailed here because of the judge’s ability to ignore large portions of the statutes, blame people for actions they didn’t take, and ascribe motives to people without any evidence.
Had the judge not been so heavy handed, weighed both sides of the issue, listened to the reason, understood that CSS wasn’t copy protection, and that the whole point of DeCSS was to write a DVD player, yet still decided that it was better to delay the progress of that, and to protect against possible damages were the MPAA right, and to reluctantly grant the injunction, I wouldn’t have been happy about the outcome, but it wouldn’t have made me suspicious about the judge being bribed.
To summarize: I see no laws supporting usage controls - I see in fact, laws which support access controls only, and allow any usage except that which specifically violates copyright. I see no potential damages to the MPAA, or rather, none for which anyone but they are responsible - the government shouldn’t obtain an injunction against company A because their product completely removes the need for company B’s product, even if company B would go broke because of now having a useless product.
Then there’s everything I said earlier about outside influence, etc.
Bricker, I mentioned this case, and this discussion, to a friend, and he had an interesting view…
He said that the DMCA prevents circumventing technological measures for access control. It doesn’t say anything about not copying, etc, just to not circumvent safeguards.
He then said that laws never just assume that everyone agrees on what’s wrong, they spell it out in detail, and we can see this detail in the DMCA, for what it does apply to. (Explaining how it’s okay for a program, or when circumventing isn’t the ends, it’s a means, etc.)
So, it could be assumed that the DMCA doesn’t spell out what you can’t do after circumventing access controls, or what those access controls are preventing access to, because that’s already spelled out in the copyright statues, in the same excrutiating detail. The DMCA is merely protection against copyright violation as it changed in the last few years, and in the digital world.
So, the only thing that access controls can control access to (and gain DMCA protection) are copy protection. The DMCA was written because the recognized that people will pirate if it’s easy, so they forbid making it easy. They didn’t forbid the pirating because it was already forbidden.
Usage controls are outside of the scope of the copyright law, and are also outside of the scope of the DMCA.
(Excepting if you were to agree to a contract before purchasing the content, then that contract could dictate usage in any way.)
Do you see what I’m getting at? If they wanted usage controls, they’d have written a law stating the sort of usage that could be controlled and exceptions, etc. They didn’t, they only wrote a law containing penalties for making it easier for someone else to violate an existing law.
It’s an interesting point, because it could solve the question of what the law intended.
And as an ammendum to my last message, I support no inherent usage restrictions of copyrighted work. I do not mind people signing away their rights as part of a larger contract, as long as it is entered into intentionally by both parties (no shrink wrap licenses, etc.)