posted Jun 02, 2001

Response to the Briefs DVD & DeCSS6/2/2001; 7:30:47 PM OK, I've read the two briefs now and I'd like to offer these comments:Based on these briefs, EFF is arguing a fundamentally stronger case. The MPAA has the always-difficult task of proving the absolute: DeCSS contains no speech elements whatsoever. While the EFF goes to the opposite extreme to state that DeCSS contains no non-speech elements (which I personally agree with), any compromise position will leave DeCSS as being at least partially speech, which would hurt the MPAA's position.Remember this is a trial about whether the injunction against 2600 was legal, not directly about DeCSS. The MPAA's position is that a link to DeCSS was more-or-less tantamount to the infringement that would occur, and if DeCSS is speech in any way, the First Amendment will begin to kick in and protect 2600. It is still possible for the court to rule that while DeCSS has some speech elements, it is not subject to full protection, but the MPAA would be much better off if it can get the court to buy in on the idea that DeCSS is totally non-speech.I would not call the EFF's position bullet-proof, but I think the flaws are relatively minor. In section B.1, after the lettered paragraphs, the EFF makes reference to the possibility of a system that could limit the number of copies of a DVD made. I think that in the context of a court case that is implicitly discussing a method of circumventing a copy control, that's a bold statement They do have a couple of statements that I would expect even extremely cynical judges to take note of, notably the last section about fair use ("fair use extends to works in whatever form they are offered").However, this is not a trial about DeCSS, it's a trial about whether 2600 violated a court order to not post links to DeCSS on its website, which I previous opined that 2600 is essentially destined to lose. So while the EFF is arguing a very strong case, I can't escape the fact that they seem to be arguing the wrong case. The MPAA lawyers have not violated a court order to not post links to DeCSS on its website, which I previous opined that 2600 is essentially destined to lose. So while the EFF is arguing a very strong case, I can't escape the fact that they seem to be arguing the wrong case. The MPAA lawyers have not missed that point, of course, and their brief comes on quite strong on that point in the beginning, and while I find it distasteful to say, I think they're mostly correct. I find myself agreeing with section III in its entirity, where the MPAA lawyers go over the reasons why the initial injunction is hardly a threat to journalism as a whole.I'm much more interested it the direct answers to the questions, though, and I find the MPAA answers sorely lacking:'Does DeCSS have speech and non-speech elements? No... DeCSS is a device (configured as a program, although it could as easily have been configured as a physical machine, i.e., a "black box") that accomplishes a mechanical task, namely descrambling and decrypting an encrypted, scrambled DVD and copying its content to a hard drive.'There are three major problems with this line of reasoning. First, as I saw someone on Slashdot pointed out, if DeCSS (and by extension, all programs) are merely "devices", then on what grounds do we allow programs to be copyrighted? Either they are "expressions" that can be copyrighted, and thus can carry some sort of First Amendment-protectable information, or they are purely devices which can never be copyrighted, ever, and thus can only be patented. (Of course the MPAA can afford to argue this line of reasoning, as they have no need to worry if a judge were to agree with this. Microsoft, on the other hand, might have something to say about that.Second, while it is true that DeCSS could be accomplished by a physical machine, this is true of all software. All software can be done in hardware; the difference between software and hardware is smaller then a lawyer might guess. For instance, if you have an older Palm Pilot, the OS and the programs that come with the OS are all done entirely in "hardware". Therefore, this argument has no meaning, since it has no distinguishing power between software that can be done in hardware and software that cannot.Third, the point about "copying to a hard drive" is dangerous to take at face value. If DeCSS is used to make a copy, which is then viewed by the owner and promptly erased, is this a crime? It's dangerous to say yes, because such copying happens routinely on the Internet with caching and other such mechanisms. Indeed, my computer has a fully legal DVD player and I can guarentee with reasonable confidence that at some point, contents of the DVD have ended up on my hard drive due to that memory being swapped to the hard drive. In fact, as I sit here, I'm watching Star Trek VI on my computer, and my hard drive light is flashing in perfect sync with the DVD drive's light. It's a pretty good guess that the DVD is essentially being copied directly to the hard drive.

One can profitably make the distinction between deliberately copying to the hard drive and having the system do it, but that's just asking for a clever hacker to straddle the line, just as systems like FreeNet straddle the free-speech line.The rest of the MPAA brief is mostly spent dismissing the questions the court posed about how the First Amendment applies, since the MPAA contends that there is no speech involved at all, so there's little else of value to me there.I think the EFF has put some good material together, and I'm sure we'll see it again when the trial about DeCSS resumes. In the meantime, the only reason I see to think that this particular court process will end in 2600's favor is that the judges were asking these questions at all. If I had to lay money down, I'd say the court will find in favor of the MPAA, that Corley did violate the provisions of the court order, but that their brief will validate (or at least consider) some of the points the EFF is making, and recommend that other courts pay more attention to them as the whole mess wends its way through the court system.


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