California ruling. Free speech more important than DeCSS protection! (1 Viewer)

[Mike Russell]

Some of you may have read this already. I was looking to see if someone else already posted a thread. Check it:
From the San Jose Mercury News.
Ruling that free speech deserves more protection than trade secrets in cyberspace, a state appeals court dealt a blow Thursday to the DVD industry in its legal fight to prevent Web sites from posting software to unscramble the encryption on DVDs.
Concluding that First Amendment rights trump California's stringent trade secrets laws, the 6th District Court of Appeal in San Jose overturned an injunction that in practice has blocked dozens of Web sites from distributing DeCSS, a popular method for cracking the encryption scheme used by the industry to prevent copying of digital versatile discs.
DVDs are an increasingly popular medium for distributing movies and music, and the industry argues that the encryption format is a trade secret that must be protected. However, the First Amendment is more important, the court said.
The DVD industry's ``statutory right to protect its economically valuable trade secret is not an interest that is `more fundamental' than the First Amendment right to freedom of speech,'' Justice Eugene Premo wrote for an unanimous three-judge panel.
The California appeals court ruling won't result in the DVD decryption information being immediately unleashed on the Internet. In a related case, a federal judge in New York last year issued a similar injunction against Web site operators that remains in force.
But if upheld, the California ruling marks an unprecedented establishment of free speech rights in cyberspace and could have sweeping ramifications for the ability of businesses to police their trade secrets on the Internet.
The California appeals court ruling stems from a 2-year-old lawsuit filed by the Morgan Hill-based DVD Copy Control Association, which has sought to bar Web sites with links throughout the world from posting the software keys to the DVD encryption program.
The injunction had been issued against Andrew Bunner, the operator of one of the sites, but Thursday's ruling applies broadly to the many sites named as defendants by the industry.
The DVD industry, which is also backed by a computer industry trade group, vowed to quickly appeal the ruling to the California Supreme Court.
``The decision would be a devastating blow to the U.S. economy, and it makes absolutely no sense,'' said New York attorney Jeffrey Kessler, who represents the DVD Copy Control Association. ``The decision is crazy. Beyond our case, if this decision becomes the law of the United States, all trade secrets laws are unconstitutional.''
Civil liberties groups and lawyers for the Web site operators, meanwhile, called the decision a landmark endorsement of First Amendment rights on the Internet.
``What this case isn't about is intellectual property rights,'' said Robin Gross, an attorney with the Electronic Frontier Foundation. ``What it is about is the First Amendment rights of people who come across information in the public domain who want to republish and discuss that information.''
The ruling was a change of fortune for free speech advocates, who have repeatedly lost in their legal fight with the DVD industry.
Many of the Web site operators are Linux enthusiasts who have said they legitimately reverse-engineered the DVD technology to allow DVDs to be played on computers using the Linux operating system, and the dispute traces back to a 15-year-old computer whiz in Norway who first posted the technology in 1999.
In January 2000, Santa Clara County Superior Court Judge William Elfving issued a sweeping injunction barring the posting of the code after finding the industry's trade secrets would be lost if scofflaws were allowed to post it, unrestricted, on the Internet. Elfving concluded that unfettered access to information on the Internet does not equal a license to steal or distribute protected trade secrets.
But the appeals court determined that the injunction goes too far, cutting off the exchange of information -- in this case, source code -- among people who may not even know they are distributing a trade secret.

 

[John_Berger]

Although this could open a can of worms regarding piracy and open me up for a series of flames, I must admit that I'm pleased about this ruling.
I use DeCCS, but not for piracy purposes. I use it so that when I travel I can watch DVDs that I bought on my laptop which doesn't have a DVD player! I realize that I'm (probably) in the minority on that one, but it all should come down to how it is used, not whether or not is it available on the Internet.
DeCCS doesn't cause piracy. Cheap-skate, unethical morons cause piracy.

The movie industry and the software industry simply will never learn that for every type of copy protection that is implemented, someone, somewhere will find a way to break it.
The problem with things like DeCCS is that they CAN BE and ARE used for purposes that are not intended to defraud or steal revenues from the studios. In fact, theft is (supposedly) NOT why DeCCS was created, but rather because there were no DVD players for Linux at the time - WHICH IS TRUE.
Even if I bought a DVD player for my laptop, do you think that I would have bought a second DVD of the same title for travel? Be serious! I would have brought the one that I already bought. So, how am I stealing any revenues by using DeCCS to dump the DVD to my hard drive and compress it into an AVI so that I don't have to carry the DVD with me? I know that that's not really what the lawsuit was about, but that's still the end result.
And no one can convince me that this was not about fear of losing money. This does not have nearly as much to do with the DCMA as it does the possible loss in revenue. I'm not saying that that's bad. I'm just saying that I don't appreciate the DCMA pretense.
Ah, well. We'll just have to see what happens.
The real thing is still the best thing, though.
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A Member of the Artists Rights Foundation
http://www.widescreen.org

 

[Mick Wright]

This is a great day for our country. If that verdict had been allowed to stand, then free speech in cyberspace would have been dead.
Now maybe someone will see that the digital millennium copyright act (upon which the previous verdict was based) is the most un-constitutonal act ever passed.
The judge in the first case ruled that our fair use doctrines aren't violated by CSS because movies are also available on formats we can copy like video tape! I'm still shaking my head over that one.
[Edited last by Mick Wright on November 03, 2001 at 10:09 AM]

 

[Jeff Ulmer]

I think that the ramifications of a ruling that basically make legal the unlimited distribution of information including trade secrets is a serious and potentially fatal decision.
The encription used for DVD isn't the only kind of information this allows to be spread, if this is supported under law. This also means that any information, including that which could be vital to national security, is open to mass distribution without any form of recourse. Trade secrets include how to build weapons of mass destruction, how to engineer biological weapons, how military security systems work and thousands of other types of classified information which could be as easily disseminated as the DeCSS code.
If free speach becomes the overriding factor in policing what shows up on the internet, this also allows the disemination of hate propaganda, or even instructions for how to plan and execute terrorist attacks under the guise of free speech.
There is no way that free speech can be a free for all of information sharing. It never has been - just mention the word "bomb" at an airport and see how fast your right to free speech is eliminated. It is a priviledge that also carries with it a responsibility. I hope this is struck down on appeal in a hurry. Trade secrets must be able to be enforceably maintained. There are limits as to how far free speech can be allowed to go, and breaking patents or diseminating information that is materially damaging to industries - unless it is for extenuating circumstances - must be regulated.
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[Edited last by Jeff Ulmer on November 02, 2001 at 07:06 PM]

 

[Vince Maskeeper]

Mike,
This info was posted yesterday: http://www.hometheaterforum.com/uub/Forum15/HTML/032550.html
AIM: VinceMaskeeper
Do you want SOUTH PARK on DVD in order, rather than themed sets? Join our overwhelming majority!!

 

[John_Berger]

Jeff,
The ruling clearly states that the ramifications of making DeCCS available does not supercede the restrictions that we do have on our "free" speech. Matters regarding national security and other interests vital to our survival AS A NATION are NOT subject to the 1st Amendment and can be prosecuted. Try posting a message that you're going to assassinate the President and explain when the Secret Service arrives that it was "free speech". It won't fly.
This restriction includes the weaponry and other material that is deemed as classified by the federal government.
DeCCS is HARDLY a vital national interest.
Read through the summary that was released. It's about seven or eight pages, but it was an interesting read. You have nothing to worry about.
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The Letterbox and Widescreen Advocacy Page
A Member of the Artists Rights Foundation
http://www.widescreen.org

 

[Matt Perkins]

I have to chime in here, in opposition to Jeff ...
quote: Trade secrets must be able to be enforceably maintained. There are limits as to how far free speech can be allowed to go, and breaking patents or diseminating information that is materially damaging to industries - unless it is for extenuating circumstances - must be regulated.[/quote]
I wholeheartedly agree. I also support this decision vehemently.
Trade secrets apply to someone who contractually waives her First Amendment right to expression. Working with an engineering, or biotechnical, or military (etc.) organization may require people to enter confidentiality agreements. People in such situiations, violating those agreements, should be subject to harsh penalties. And they still are.
This decision, however, applies to someone who never entered a confidentiality agreement. Legally, as the decision makes abundantly clear, the only way a third party can be liable for a trade secret violation is for him/her to have aquired the secret through "improper means."
Reverse Engineering, as was apparently done with the Xing player, is emphatically exempt from trade secret prosecution in California. So, the secret was not acquired through improper means, and so Brunner could not possibly be enjoined from distributing it.
And before anyone tells me that the "license agreement" binds users of software from legally recognized reverse engineering, check out Link Removed recent decision against Adobe.
EDIT: awww, nuts. I can't get that link to work. Never mind ...
[Edited last by Matt Perkins on November 02, 2001 at 09:17 PM]

 

[nolesrule]

Let's not forget that this appeal only overturned a preliminary injunction against posting DeCSS on a website. The trial still hasn't taken place.
Also, Jeff, you should read the actualk appeal decsion. It specifically states that kinds of speech that are not protected under the 1st amendment, including obscenity or words that can put people in immediate danger like yelling "fire" or "bomb" examples.
Other people addressed the trade secret issue as described in the decision. However, it needs to be remembered that the 1st amendment states:
"Congress shall make no law .... abridging the freedom of speech"
And by extension, Amendment X:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
(added emphasis mine)
The trade secret law that the CSS people are using is a California law that shouldn't even apply to a 3rd party anyway. And when the Constitution and a state law clash, the Constitution will always win.
[Edited last by Joe Kauffman on November 03, 2001 at 03:27 PM]

 

[Robert George]

One other point that I think should be made is this ruling specifically covers the use of information found in the public domain, not stolen from a company.
Trade secrets are just that, trade secrets. Not government secrets or military secrets or private individual's secrets. If a trade secret leaks out and becomes known, the only liable party should be those responsible for leaking it in the first place. Once the information is in the public domain, then it should be protected by the constitutional guaranty of protected speech.
[Edited last by Robert George on November 03, 2001 at 04:06 PM]

 

[Stu Rosen]

Robert:
While I can understand your sentiment about who should be held responsible, I don't believe that you've accurately stated the law.
For what it's worth, I'm a copyright attorney, and I'm unaware of any courts holding that once disclosed, trade secrets lose their protection. Were that the case, then, in essence, anything ever disclosed -- intentionally, inadvertently -- would forever lose its protection. That just isn't the case.
I wasn't sure if you were stating a wish or your understanding of the law, but I thought I'd try to correct any misstatement.

 

[nolesrule]

Robert is referring to a trade secret disclosed to the public by someone who is not party to any non-disclosure agreement of the trade secret.
For example, if I find the exact recipe for Coca Cola on a piece of paper while walking down the street in Atlanta and publish it on the internet, I am not in violation of any trade secret laws because I was not party to any trade secret agreement. Also, the recipe would no longer be considered a trade secret because in order to be considered a trade secret, it must not be general public knowledge.
Remember, we're talking about legal means for acquiring the trade secret where no laws were broken and no contracts were violated.
[Edited last by Joe Kauffman on November 03, 2001 at 05:45 PM]

 

[Stu Rosen]

Putting aside the niceties of the law for one moment, why are some of you putting so much energy into justifying the dissemination of someone elses intellectual property.
Even if we assume that no one has acted illegally, I find it strange that a forum that is so (justifiably, usually) obsessive about fulfilling the creator's intent on creative works, is so casual about copying and distributing that creator's work contrary to his or her wishes.
Instead of asking whether Stanley Kubrick intended to have his films displayed open matte in the home video format, ask whether he wanted people to break security codes and rob his works of the intended protections.
Because if you truly believe that creators are entitled to protect their works, then the argument ceases. At that point, it doesn't matter whether you agree with the creator's intent, or believe that your copying doesn't really hurt anyone (and spare me "fair use" arguments -- fair use is actually a narrow exception and is grossly exaggerated in this forum to justify robbery). A content owner, among other things, has the right to be unreasonable, stupid and flat out wrong. Comes with the territory.

 

[John Miles]

quote: Even if we assume that no one has acted illegally, I find it strange that a forum that is so (justifiably, usually) obsessive about fulfilling the creator's intent on creative works, is so casual about copying and distributing that creator's work contrary to his or her wishes.[/quote]
Copyright law isn't about "wishes," it's about granting exclusive rights to copy and distribute material for a limited time and under limited circumstances, circumstances which the law actually enumerates fairly specifically.
A content creator can "wish" for the great worm Catyrpelius to rise from his resting place in the Abyss and consume the entrails of anyone who copies a DVD, but that doesn't mean the law will justify or permit it.
quote: Because if you truly believe that creators are entitled to protect their works, then the argument ceases. At that point, it doesn't matter whether you agree with the creator's intent, or believe that your copying doesn't really hurt anyone (and spare me "fair use" arguments -- fair use is actually a narrow exception and is grossly exaggerated in this forum to justify robbery). A content owner, among other things, has the right to be unreasonable, stupid and flat out wrong. Comes with the territory.[/quote]
Right, and that's what needs to change, especially if we're going to permit AOL/TW-style oligopolies to grow like kudzu in the entertainment business.
Faced with your argument, Stu, an uninformed reader might be led to believe that content owners are in danger of losing legal protections that they've always enjoyed. Nothing could be further from the truth. In fact, at no time in history have content owners been able to dictate if, when or how their product is used by the retail consumer.... until now.
Copyright law (as you, as a copyright attorney, should well know) grants a limited monopoly for just that purpose... copying. Not control of post-purchase use or resale (see "first-sale doctrine," another consumer right that's endangered by the content industry's lawmaking-by-payola agenda.)
The whole DeCSS uproar is centered not around copying per se, but (a) the ability of an end user to play a DVD on a platform of his/her choice; (b) the ability of an end user to exercise his/her existing right to make an archival backup of licensed software; and (c) the ability of an end user to exercise fair-use rights. Content owners are under no obligation to go out of their way to facilitate fair use or any of the other actions above, but under the blatantly-unconstitutional DMCA ("taking without compensation"), consumers actually lose their ability to exercise fair-use rights.
Fair-use rights in particular should not be dismissed as cavalierly as you do, by the way. Ask your law librarian what s/he thinks about that. I agree that the term "fair use" is widely misunderstood, but it does have a meaning and a purpose in law. Research and criticism are just two of many legitimate reasons to permit limited copying of protected works. (And no, "Let them use VHS" is not a valid redress. Would you be happy if 8-track tapes were the last accessible medium for audio content?)
Again, fair use was not something that content owners had the legal or technical ability to prohibit until recently. Technologies such as CSS certainly were not anticipated by the framers of modern copyright law, any more than Betamax was. Our nation's courts and legislatures need to do something about the enforced erosion of existing consumer rights and prohibition of common, reasonable practices, so at least some of us (myself included) applaud the Court's recent ruling.
quote: Instead of asking whether Stanley Kubrick intended to have his films displayed open matte in the home video format, ask whether he wanted people to break security codes and rob his works of the intended protections. [/quote]
Wow, is your local fire department OK with you piling up that much straw in one place? "Breaking security codes" and "robbing" are two entirely different actions. The former action is necessary (but currently illegal) if a DVD consumer wishes to exercise existing rights under Federal copyright law. The latter action should be, and is, justifiably condemned.
[Edited last by John Miles on November 03, 2001 at 08:05 PM]

 

[Jeff Ulmer]

In fact, at no time in history have content owners been able to dictate if, when or how their product is used by the retail consumer.... until now.

And at no time in history have they faced the kind of threat that current technology enables. It used to be pretty damn difficult to copy someone's work when all we had were paper and film. Copying music always incurred a generational loss. That is not the case today, and is why acts like the DMCA have come about, because it is so easy to have your work copied.
There is no law that states the general public is entitled to the right to clone someone else's work, so the VHS or 8 track argument does hold up.
I'm also not buying the "once made public, protection is gone" concept. If you found the formula to Coke, it is still not available to the general public-unless you post it on the internet.
It is interesting the distinction between someone's intellectual assets and physical ones. If I found your TV on the side of the road - no matter how it got there - I wouldn't have the right to keep it, sell it or do what I liked with it. If you didn't agree to part with it, I could be charged with posession of stolen property. So why then is it okay to take something that you haven't compensated the owner for, and spread it around at your discretion?
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[John Miles]

quote: There is no law that states the general public is entitled to the right to clone someone else's work, so the VHS or 8 track argument does hold up.[/quote]
You're still missing the point. Until very recently, there was no law that stated the general public was not entitled to clone someone else's work for even limited fair-use purposes. (Not for lack of trying on the MPAA's part, though... see Sony vs. Betamax. Yet another innovation that was supposedly the "doom" of the content industry.)
When the DMCA effectively (and despite its own language) outlawed fair use in the digital realm, it robbed the consumer of existing rights without offering anything in return. That's unconstitutional.
In the US, copyright is granted by the law -- it's not a natural right, and it was always intended to balance the interests of both authors and consumers by operating within certain limits. Those limits have been strained, to say the least, by modern legislative trends.
quote: It is interesting the distinction between someone's intellectual assets and physical ones. If I found your TV on the side of the road - no matter how it got there - I wouldn't have the right to keep it, sell it or do what I liked with it. If you didn't agree to part with it, I could be charged with posession of stolen property. So why then is it okay to take something that you haven't compensated the owner for, and spread it around at your discretion?[/quote]
Because if you steal my TV, I no longer have the use of it. Software doesn't work that way. This is why analogies that compare software piracy to "stealing" are brain-dead from the word go (and that's coming from a guy who makes his living in the software business.)

At any rate, such analogies and arguments are not relevant to this case. In a world where arbitrary content-protection schemes on retail software are given the absolute force of law, nobody is being "robbed" but the consumer.
[Edited last by John Miles on November 03, 2001 at 08:20 PM]

 

[Jeff Ulmer]

In a world where arbitrary content-protection schemes on retail software are given the absolute force of law, nobody is being "robbed" but the consumer.

How is the consumer being robbed? By not having free access to everything? That makes no sense, and the argument that decrypting the protection because it won't play on a cerain computer platform is also ludicrous, as it isn't up to the software manufacturers to ensure that every device is compatable with their products - if it were then I should have a right reverse engineer any piece of software that won't run on my Mac (like those Star Wars extras...).
This argument isn't going to be solved here, so this is the last I'll post on it. Enjoy your stolen entertainment while you can.
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[Robert George]

Stu:
What John said.
My previous statement related to the issues of the case being discussed, not to any existing legal statute. Obviously, I am not a lawyer, not have studied law, so my position on matters such as these are that of an interested citizen and consumer.
John's very eloquent statements on copyright law reflect what I believe is the intent, if not the stated purpose, of copyright law. Do I think copyright law gives, or should give, anyone absolute control of their intellectual property? No, I do not. Nor do I think most legal interpretations of the U.S. Constitution allow this.
For the record, on matters of Constitutional protections and guaranties, I would classify myself a "civil libertarian", so I suspect that would put me at odds with most copyright lawyers.

How is the consumer being robbed? By not having free access to everything?

Jeff:
I believe you overstate the issue. No one is advocating a "free-for-all" with copyrighted material. The issue is the balance between the rights of the creator of intellectual property and the rights guaranteed by the U.S. Constitution. Neither is absolute. That is why we have a judicial system to sort out who gets what.
Like it or not, the consumer does have some rights, even to copyrighted material. It is the place of our courts to define the extent of those rights, not the people who would exercise absolute control without regard to the Constitutional rights of others.
[Edited last by Robert George on November 03, 2001 at 09:29 PM]

 

[Jeff Ulmer]

You're still missing the point. Until very recently, there was no law that stated the general public was not entitled to clone someone else's work for even limited fair-use purposes.

There was no need for such a provision given the nature of the technology. You simply could not do it before, which is why there is new legislation addressing the situation introduced by current technology. I doubt you will find any provision that permits replicating entire works and distributing them without limitation. This is the reality of what is going on, fair use or not. By effectively cloning the original work, there should be technically no difference between the right of the copyright holder to collect remuneration for the original or the clone, unless that clone is being stolen, thereby removing any possibility for compensation, and that is what is happening.
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[nolesrule]

CSS isn't really copy protection anyway. It's possible to copy a DVD (or CD) onto another disc bit for bit (there is a minor technical snag that bootleggers have already found a way around).
CSS is really about access control. Without the software to decrypt CSS, you can't watch a DVD. And you have the buy an expensive license from the CSS people in order to be able to get the decryption key. All set-top DVD players have the software built in, but computer DVD-ROM drives don't have this. It requires computer software to decrypt. Wella couple years ago, there was no decryption software for playing DVDs on a Linux computer. Plenty out there for Windows. Linux is a growing operating system and many people refuse to put Windows on there machines because of their personal feelings toward Microsoft.
But what good is a DVD player in their computer if they can't view their own DVDs that they paid money for on their desktop computer or their notebook computer that runs Linux? Everyone else can view DVDs on set-top, Wintel PCs (maybe Macs too, I don't know). Even PS2. But not a Linux box.
So, some people out there took the situation into their own hands figured out how to decrypt it so any MPEG-2 player for Linux could play the DVDs.
I don't see what's wrong with that.
Jeff, what you are saying is that CDs should not be copied so you can keep a copy in the car or in the second CD player so you don't have to take it out of your 300 disc CD jukebox. But even the government thinks that's ok. Ask Orin Hatch.
The part that would be illegal would be the distribution. Why make a tool illegal that has so many legitimate uses? Should guns be illegal because they can kill people? Should crow bars be illegal because you can break into places with them? How about knives? Ice picks? cars?
So many things out there have illegal uses, but also have benefits if used properly. Should we ban everything that can potentially used to commit a crime?

 

[Robert George]

First, by eliminating the ability of content providers to premptively prevent the theft of their intellectual property, you are creating a free for all, like it or not.

Content providers should have the ability to control their intellectual property, right up to the point that their protection infringes on others' Constitutional right to fair use. That is what I mean by balance. If a copyright holder developes a new technology that they contend is for the protection of their intellectual property, but the use of that technology impinges on what has been determined to be "fair use" by the judiciary, then the Constitutional right of "fair use" becomes the overriding law.
The point that seems to be lost on you is that "fair use", however and whenever that is defined by the courts, is not theft. Additionally, "fair use" is decided by the courts, not by "content providers". Don't forget, the Constitution, and the legal system set up to interpret and uphold it, exists to protect the rights of the individual equally with the rights of corporations.