DMCA Revisited

Black Friday? Well... almost. Had the verdict come one day later it would have made for another black Friday, so much is for certain. Enjoy this small story situated in the Star Wars universe, after Episode I.

The End of the Old Republic: 2 years ago the old republic started to crumble. Unhappy with current revenues generated by holovid distribution some members of the Palpatine clan launched a new video format called DIVX that, had it succeeded, would have given these people complete control among all trade of holovid entertainment distributed on the Republic's holonet. Because a small faction of the senate actively opposed to this law and because the republic's citizens were slow to adopt the new format and some rebellious people launched a holonet campaign against the new format the Palpatine clan also pushed for a legislation that would grant it's clan complete control off the less restrictive DIVX-alternative called DVD, which offered superior features than DIVX but which wasn't so easily controlled. After long debates the senate, undoubtedly being heavily lobbied, enacted a law called "Digital Millennium Copyright Act" that enabled the people around chairman Jack "Palpatine" Valenti the complete rule over holovid distribution entertainment. When a year later DIVX crumbled this did not matter much anymore since this DMCA was all the clan needed. In the same year some of these rebellious people came up with a software that allowed everyone who owns a datapad to access these protected holovids despite the access control mechanism called CSS. The software was called DeCSS. Palpatine's people started sending out cease&decease messages to everyone who would offer DeCSS. Then in early 2000 they brought the case to court. After a long juridical battle the judge ruled in favor of the Palpatine clan an ordered everyone in the old republic to stop use and distribution of DeCSS. The court did not find that people who own datapads that are not equipped with the CSS technology but have legally purchased some holovids should be able to view them. Now, Palpatine's clan's rule over the holonet backed up by republic court - editors note: we don't know if Palpatine's people already have some influence on the court - the future of free access to holovids is dark. Only a small group of rebels dare to defy the court's orders. To be continued...


Star Wars fans may forgive me for the rather weak story... but I feel much more at home at writing ripping guides than at creating Star Wars stories.


Ok let's get to business. Judge Kaplan has ruled on the favor of the MPAA. Now I wouldn't say that this comes as a surprise to me. Having read many of the documents regarding this trial I was convinced from the very beginning that the judge was on the MPAA's side from the very first day on. As I've already outlined in my analysis of the DMCA I challenge judge Kaplan's ability to make an educated decision since he lacks the necessary technical knowledge required to rule on the case. The fact that he repeatedly refused to hear experts brought by the defense team supports this challenge. I'll get deeply into the matter as my analysis progresses. Of course judge Kaplan would judge my ability to make a decision on legal matters on pretty much the same arguments and he's probably right. But in certain cases an interpretation off the articles in a legal text should even be possible to the untrained...


In any case, what concerns me most in the DMCA is the following part:

(c) OTHER RIGHTS, ETC., NOT AFFECTED.-(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

Judge Kaplan has a very different understanding of this sentence than I do. I think that it means: Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement and/or fair use, under this title. Judge Kaplan's interpretation somehow completely twists this meaning, and basically the fair use meaning gets lost. Of course the court is right when it argues that defendants were not charged with copyright infringement but nevertheless its interpretation later simply dismisses fair use.


"Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement."

Well.. I think the analogy is outrageous. Murder has nothing to do with computer code, much less with it's possible completely legal uses.

"In an era in which the transmission of computer viruses—which, like DeCSS, are
simply computer code and thus to some degree expressive—can disable systems upon which the
nation depends and in which other computer code also is capable of inflicting other harm, society
must be able to regulate the use and dissemination of code in appropriate circumstances. "

Do I have to remind the judge that there are laws in many countries - not jus the US - that deal with viruses and other malicious use of computer systems. DeCSS does not fall into that category.

"An algorithm is a recipe that contains instructions for completing a task. It can be expressed
in any language, from natural spoken language to computer programming language."

Once again the judge just backs up my arguments and contradicts his own arguments. The quote above says that computer code can be speech. Every computer science student has courses in algorithms and programming, and he'll learn that instructions in plain, pure English can easily be turned into code in a certain programming language and still convey the exact same idea. Furthermore not only did the MPAA send C&D letters to site offering the executable of DeCSS, they also sent them to scholars and universities that offered the source-code or parts of it. To not allow dissemination of the source code for research is simply in violation of the first amendment no matter whether the judge rambles on over more than 10 pages on the subject. Having undertaken engineering studies I'd say nothing is as informative as a short and precise essay on an subject. If somebody keeps going on and on this begins to sound to me like politicians who like to talk and like to hide their weak message in an overkill of words.


"Licenses to manufacture compliant devices are granted on a royalty-free basis subject only to an administrative fee.
The administrative fee is one million yen, now about $9,200, for each “membership category selected by the licensee. "

"Defendants argue that the right of third parties to view DVD movies on computers running
the Linux operating system will be materially impaired if DeCSS is not available to them.
However, the technology to build a Linux-based DVD player has been licensed by the DVD
CCA to at least two companies, and there is no reason to think that others wishing to develop
Linux players could not obtain licenses if they so chose. Tr. (King) at 437-38. Therefore,
enforcement of the DMCA to prohibit the posting of DeCSS would not materially impair the
ability of Linux users to view DVDs on Linux machines."

The judge does still not understand the open source community. FREE SOFTWARE! No open source programmer can spend $9,200, and then not being able to distribute the full code because the CSS algorithms are probably under NDA. And we yet have to see those Linux DVD players...


"DivX is capable of compressing decrypted files constituting a feature length motion picture to approximately 650 MB at a compression ratio that involves little loss of quality."

"Indeed, having compared a store-bought DVD with portions of a copy compressed and synchronized with DivX (which often are referred to as “DivX’d” motion pictures), the Court finds that the loss of quality, at least in some
cases, is imperceptible or so nearly imperceptible as to be of no importance to ordinary consumers."

Ha... you've certainly come to the right person with this. Look at my Windows Media Encoder7 test I did last month: The results are clear: one CD rips suck. If you're not half blind you should see the difference between a DVD and a DivX rip done at low bitrates or even fast-motion. These statements are an insult to my intelligence and my visual perception. And I believe this also applies to most of my readers.


"Hence, transmission times ranging from three to twenty minutes to six hours or more for a feature length film are readily achievable, depending upon the users’ precise circumstances."

Well... first of all most servers carrying DivX rips are privately owned and even tough they may be on fast lines, the number of users is limited and so is the bandwidth since the Internet is overcrowded which wastes a lot of bandwidth. Also.. cable and xDSL lines are still limited by the provider's backbone and usually such lines have a limited upward rate making downloads much faster. I'd really like to see someone download 650 megs in 3 minutes. Man.. I'd love to have such an internet connection. I have yet to see a connection that even comes close to these speeds that is not on a LAN. 


"First, the availability of DeCSS on the Internet effectively has compromised plaintiffs’ system of copyright protection for DVDs, requiring them either to tolerate increased piracy or to expend resources to develop and implement a replacement system unless the availability of DeCSS is terminated."

Well... try to stop DeCSS, would you please? Star Treks: Insurrection says it: Resistance is futile. This task is simply not doable. Even to get it off all US servers is close to impossible and there are just a couple of other countries... a fact that many US citizens do not realize. The world does not end at US borders and do you sincerely believe that people in lower developed countries would care about copyright laws? They have much more pressing problems. Besides DVD ripping was possible before DeCSS and it will be possible after it.


"First, Section 1201(f)(3) permits information acquired through reverse engineering to be made available to others only by the person who acquired the information. But these defendants did not do any reverse engineering. They simply took DeCSS off someone else’s web site and posted it on their own."

Can you say ridiculous? Encryption research results need to be published broadly so people around the world can comment on that. Everyone that's even loosely associated with any kind of research should notice how ridiculous that claim is. Research results, once published, must be disseminated to anyone interested. This does not work if only the person who acquired the information in the first case may distribute it. What about translating to other languages, just as an example.


"Defendants claim also that the possibility that DeCSS might be used for the purpose
of gaining access to copyrighted works in order to make fair use of those works saves them under
Sony Corp. v. Universal City Studios, Inc.167 But they are mistaken. Sony does not apply to the
activities with which defendants here are charged. Even if it did, it would not govern here. Sony
involved a construction of the Copyright Act that has been overruled by the later enactment of the
DMCA to the extent of any inconsistency between Sony and the new statute. "

So here we have our confirmation of the story above. DMCA overrules Copyright Act. Palpatine overrules fair use. The evil empire begins..


"The interest served by prohibiting means that facilitate such piracy—the protection of the
monopoly granted to copyright owners by the Copyright Act—is of constitutional dimension. There
is little room for doubting that broad dissemination of DeCSS threatens ultimately to injure or destroy
plaintiffs’ ability to distribute their copyrighted products on DVDs and, for that matter, undermine
their ability to sell their products to the home video market in other forms. The potential damages
probably are incalculable, and these defendants surely would be in no position to compensate plaintiffs
for them if plaintiffs were remitted only to post hoc damage suits."

To quote what many DVD sites out there - and I'm talking site that have absolutely nothing to do with ripping here - Make it available, make it affordable! That's the key to beating piracy. Why do you think is piracy such a problem in the far east? Ever thought of how much these people earn? The can't afford legal copies! Make legal copies cheaper so that people can buy it and the piracy goes away. DeCSS does not destroy the movie studios abilities to distribute movies on DVD, but it should rather be a motivation for these to go for a reasonable pricing scheme - and not to try to get more money out of customers by making several releases over the time, create rental schemes and such. 
ONCE AGAIN: You want to get rid of piracy? Ask yourself what these people really want? Why do people buy pirated goods? You can't stop piracy by going to court... it'll never work. But if you stick to the rule mentioned above you can seriously lessen the problem!


"The copyrighted works at issue, of course, are motion pictures. People use copies of
them in DVD and other formats for various purposes, and we confine our consideration to the lawful
purposes, which by definition are noninfringing or fair uses. The principal noninfringing use is to play
the DVD for the purpose of watching the movie—viewing the images and hearing the sounds that
are synchronized with them. Fair uses are much more varied. A movie reviewer might wish to quote
a portion of the verbal script in an article or broadcast review. A television station might want to
broadcast part of a particular scene to illustrate a review, a news story about a performer, or a story
about particular trends in motion pictures. A musicologist perhaps would wish to play a portion of
a musical sound track. A film scholar might desire to create and exhibit to students small segments
of several different films to make some comparative point about the cinematography or some other
characteristic. Numerous other examples doubtless could be imagined. But each necessarily involves
one or more of three types of use: (1) quotation of the words of the script, (2) listening to the
recorded sound track, including both verbal and non-verbal elements, and (3) viewing of the graphic
All three of these types of use now are affected by the anti-trafficking provision of the
DMCA, but probably only to a trivial degree. To begin with, all or substantially all motion pictures
available on DVD are available also on videotape.242 In consequence, anyone wishing to make lawful
use of a particular movie may buy or rent a videotape, play it, and even copy all or part of it with
readily available equipment."

I love that, I truly do. This is the point where the law turns against its makers: Judge Kaplan, are you sure you know the DMCA? Have you ever looked at section 1201 subsection k "Certain Analog Devices And Certain Technological Measures"? I bet you haven't. It states that every analog video recorder must include an AGC mechanism that make it susceptible to the Macrovision copy protection scheme which is present on almost all VHS tapes. So no copying is possible without circumventing a copy protection scheme and this action would violate the DMCA in any case, at least according to your interpretation. 


"Accordingly, there may be no injunction against, nor liability for, linking to a site
containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear
and convincing evidence that those responsible for the link (a) know at the relevant time that the
offending material is on the linked-to site, (b) know that it is circumvention technology that may not
lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that
technology.257 Such a standard will limit the fear of liability on the part of web site operators just as..."

Well... limit fear of liability all you want but this is simply not true. My site was shut down recently and I'm pretty sure it was due to the MPAA scaring my host. In another case I have proof that the MPAA shut down an upcoming site created by a friend of mine by contacting our host and threatening to sue them. So to say it in the words of Frau Farbissina: LIIIIIIIES! ALL LIIIIIIIES!


"Second, there is no reason to suppose here that prospective fair users will be deterred
from asserting their alleged rights by fear of sanctions imposed by the DMCA or the Copyright Act."

Well... the MPAA can sue you $2,500 for every act of circumvention no matter what use it's for according to judge's verdict. Come on... Let's say I want to view one of my DVDs on a notebook that is not equipped with a DVD drive. In order to make a backup, which would be permitted by the Copyright Act, I have to circumvent CSS and since the courts opinion is that the DMCA overrules the Copyright Act we either violate the DMCA and get sued or we refrain from exercising our fair use right by fear of sanctions imposed by the DMCA? It's no wonder most people don't trust lawyers... they're so good at lying, twisting the facts and other not-so-decent activities.

"An anti-linking injunction on these facts does no
violence to the First Amendment. Nor should it chill the activities of web site operators dealing with
different materials, as they may be held liable only on a compelling showing of deliberate evasion of
the statute."

Excuse me but I've experienced otherwise. The MPAA claimed that the link from DivxSOURCE to my site was illegal and already enough to launch legal actions against the host. Not chill the activities? 


"Third, defendants contend that there is no evidence that any decrypted movies that
may be available, if any there are, were decrypted with DeCSS. They maintain that “[m]any utilities
and devices . . . can decrypt DVDs equally well and often faster and with greater ease than by using
DeCSS.”265 This is a substantial exaggeration. There appear to be a few other so-called rippers, but
the Court finds that DeCSS is usable on a broader range of DVDs than any of the others. Further,
there is no credible evidence that any other utility is faster or easier to use than DeCSS. Indeed, the
Court concludes that DeCSS is the superior product, as evidenced by the fact that the web site
promoting DivX as a tool for obtaining usable copies of copyrighted movies recommends the use of
DeCSS, rather than anything else, for the decryption step 266 and that the apparent availability of
pirated motion pictures shot up so dramatically upon the introduction of DeCSS.267"

Well... I prefer not to comment that. Educated people will know what to think of it.

"These circumstances have two major implications for plaintiffs. First, the availability
of DeCSS on the Internet effectively has compromised plaintiffs’ system of copyright protection for
DVDs, requiring them either to tolerate increased piracy or to expend resources to develop and
implement a replacement system unless the availability of DeCSS is terminated.126 It is analogous to
the publication of a bank vault combination in a national newspaper."

Once again: The computer science community is relying on detailed reports about security flaws, encryption systems, etc in order to ensure that systems that incorporate them operate properly. Of course Judge Kaplan doesn't understand that but that's exactly why he's shouldn't be deciding on this case.

To come back to the beginning:

"Defendants, however, are
not here sued for copyright infringement. They are sued for offering and providing technology
designed to circumvent technological measures that control access to copyrighted works and
otherwise violating Section 1201(a)(2) of the Act. If Congress had meant the fair use defense to
apply to such actions, it would have said so. Indeed, as the legislative history demonstrates, the
decision not to make fair use a defense to a claim under Section 1201(a) was quite deliberate."

If Congress had meant the fair use defense to apply to such actions, it would have said so. And it did:

(c) OTHER RIGHTS, ETC., NOT AFFECTED.-(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

"Indeed, the difference is illustrated by comparison of two epidemiological models describing
the spread of different kinds of disease. In a common source epidemic, as where members of a
population contract a non-contagious disease from a poisoned well, the disease spreads only by
exposure to the common source. If one eliminates the source, or closes the contaminated well, the
epidemic is stopped. In a propagated outbreak epidemic, on the other hand, the disease spreads from
person to person. Hence, finding the initial source of infection accomplishes little, as the disease
continues to spread even if the initial source is eliminated. For obvious reasons, then, a propagated
outbreak epidemic, all other things being equal, can be far more difficult to control.
This disease metaphor is helpful here. The book infringement hypothetical is
analogous to a common source outbreak epidemic. Shut down the printing press (the poisoned well)
and one ends the infringement (the disease outbreak). The spread of means of circumventing access
to copyrighted works in digital form, however, is analogous to a propagated outbreak epidemic.
Finding the original source of infection (e.g., the author of DeCSS or the first person to misuse it)
accomplishes nothing, as the disease (infringement made possible by DeCSS and the resulting
availability of decrypted DVDs) may continue to spread from one person who gains access to the
circumvention program or decrypted DVD to another. And each is “infected,” i.e., each is as capable
of making perfect copies of the digital file containing the copyrighted work as the author of the
program or the first person to use it for improper purposes. The disease metaphor breaks down
principally at the final point. Individuals infected with a real disease become sick, usually are driven
by obvious self-interest to seek medical attention, and are cured of the disease if medical science is
capable of doing so. Individuals infected with the “disease” of capability of circumventing measures
controlling access to copyrighted works in digital form, however, do not suffer from having that
ability. They cannot be relied upon to identify themselves to those seeking to control the “disease.”
And their self-interest will motivate some to misuse the capability, a misuse that, in practical terms,
often will be untraceable."

I'd like to share a revelation that I've had during my time here. It came to me when I tried to classify your species and I realized that you're not actually mammals. Every mammal on this planet instinctively develops an equilibrium with the surrounding environment. But you humans do not. You move to an area, and you multiply and multiply, until every natural resource is consumed. The only way you can survive is to spread to another area. There's another organism on this planet that follows the same pattern. Do  you know what it is? A virus. Humans that rip DVDs are a disease. A cancer of this planet. You are a plague. We are the cure.

Does this sound familiar? I've just changed 3 words and it perfectly matches the above said. Agent Kaplan wants to eradicate us. We're a disease, we have to be hunted down, killed, put in a gas chamber, electrocuted or shot right away. Some more sane people on the face of the earth might recall that more than 60 years ago other people were considered as being a disease to humanity in some parts of this world.


During the final day of the trial the defense team brought some computer experts who testified on the relationship between computer code and speech. After Dr. Touretzky's testimony Judge Kaplan said the following: 

"Well, Dr. Touretzky, let me just tell you that this was illuminating and important. I was hoping we were going to hear something like this through the whole trial. I appreciate your having come."

But then agent Kaplan does not really need humans, does he. He's part of the superior race and therefore it's up to him to decide what's true and what's not. Despite having no knowledge whatsoever on the issue it's up to him to rule.. even if he's completely wrong by all logic. 





Why is it that even without legal training I can always find some serious flaw's in the court's argumentation? Either I just don't get it or then the court's decision is wrong. Let's assume for a moment that DMCA should overrule Copyright Act. Then good-bye fair use! You will NEVER again be allowed to make a copy of something you thought you own. NEVER! So if this decision should not be overturned at a later point this law must be abolished, crushed, whacked into pieces. Quite simply: Freedom of speech and fair use should weigh more than corporate greed and the whish to control the world.

Also... 2600 has found other serious issues:

But one very bad thing to come out of this is the order for us to remove all links to sites with the DeCSS code. By ordering us not to link, we're basically being told it's illegal to tell people where they can find the DeCSS utility. Search engines can, based on this ruling, be held liable if they link people to material deemed objectionable by a court. We find this to be a most frightening turn of events.