Court: DVD-cracking code is free speech

JustHalf

Thank God

http://www.zdnet.com/zdnn/stories/news/0,4586,5099131,00.html?chkpt=zdnnp1tp02

b20uvkft6m5xwg

My instant reaction to this that if litigated in the EU, the Co's -ie-Sony whoever, could apply for an interloccutory inunction estopping the parties from divulging the code on the basis of their intention to commit what is an illegal act.

Free Speech is an unemnumerated right in our constitution, but may be extinguished in such a situation, where it is to commit an offence.

BTW, I'm presuming the offence in question would be the breach of the Intellectual property right referred commonly to as "Trade Secret".


BTW Who gives a shít??
I know y'all will go look for it anyway. I know I will heeehehehehe

irishguy

does it realy matter? we have the dvd code anyway you can just use programs like decess

JustHalf

80project:
No, this is where an American guy was barred from printing details on how to circumvent CSS encryption for the purposes of playing said movies on Linux.

The argument put against him was that it was decryption aided the distribution of pirated DVD's... despite there being no need to actually DECRYPT the DVD's to pirate them. Also, it meant that no player could be developed for an OS the MPAA had not, for want of a better word, approved.

BTW, CSS is ridiculously weak.

--

Irishguy:
Erm, did you read the article? It's about the legality of publishing the source code of DeCSS.

b20uvkft6m5xwg

Originally posted by JustHalf
80project:
This is where an American guy was barred from printing details on how to circumvent CSS encryption for the purposes of playing said movies on Linux.

I'd still reckon it would come under breach of Trade Secret. Theres usually quite a broad construction given to such acts.

Its actually a very interesting area. I have to submit a dissertation in March and I'm looking for some good topics that could marry what I'm studying and what I'm interested in:)
This is the kind of thing which I could write on:)

irishguy

i did a boo boo :rolleyes: i never read the artical

Typedef

xine.sourceforge.net

jmcc

An interesting post on the Cryptography list about this:

#############
subject:
Re: California appeals court holds that DeCSS code is protected speech
Date:
Sat, 03 Nov 2001 12:11:11 -0800
From:
"James S. Tyre" <jstyre@jstyre.com>
To:
Steve Bellovin <smb@research.att.com>, cryptography@wasabisystems.com




At 02:17 PM 11/3/2001 -0500, Steve Bellovin wrote:
>"SAN FRANCISCO (November 2, 2001 6:20 p.m. EST) - Publishing software
>code to decrypt and copy digital movies is protected by the First
>Amendment as an expression of free speech, a California appeals
>court ruled.
>
>"The state's 6th Appellate District in San Jose found Thursday that
>Andrew Bunner's publishing of links to a software program called
>DeCSS on his Web site represented "pure speech" protected under
>the First Amendment."
>
>http://www.nando.net/technology/story/162761p-1549723c.html


In the main, it is a good decision (available at
http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF), but before
folks get too excited, a few things should be pointed out.

First, the court made a clear and less than helpful distinction between
source and object:

"Like the CSS decryption software, DeCSS is a writing composed
of computer source code which describes an alternative method
of decrypting CSSencrypted DVDs. Regardless of who authored the
program, DeCSS is a written expression of the author's ideas and
information about decryption of DVDs without CSS. If the source
code were "compiled" to create object code, we would agree that
the resulting composition of zeroes and ones would not convey
ideas. (See generally Junger v. Daley, supra, 209 F.3d at pp.
482-483.) That the source code is capable of such compilation,
however, does not destroy the expressive nature of the source
code itself. Thus, we conclude that the trial court's preliminary
injunction barring Bunner from disclosing DeCSS can fairly be
characterized as a prohibition of "pure" speech."

Second, the court ruled that the preliminary injunction which the lower
court had issued was an unconstitutional prior restraint on speech, but
went out of its way not to answer whether damages and/or a permanent
injunction after trial would suffer the same fate.

Third, this is not a DMCA case, it is a case brought by the DVD Copy
Control Association under the California Uniform Trade Secrets law. The
court, without specifically mentioning DMCA, also made the point of
discussiing how a claim against DeCSS might be handled differently under
copyright law than under trade secrets law.

So, except for the source/object distinction drawn by the court, its a nice
decision, but its utility in DMCA cases is questionable.

---

James S. Tyre mailto:jstyre@jstyre.com
Law Offices of James S. Tyre 310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512 Culver City, CA 90230-4969
Co-founder, The Censorware Project http://censorware.net

---

The Cryptography Mailing List
Unsubscribe by sending "unsubscribe cryptography" to majordomo@wasabisystems.com

###########

jmcc

Originally posted by 80project
My instant reaction to this that if litigated in the EU, the Co's -ie-Sony whoever, could apply for an interloccutory inunction estopping the parties from divulging the code on the basis of their intention to commit what is an illegal act.

The problem with that is that the code is already published. While it may have some effect in stopping new publication of the code, it would be a waste of money.

BTW, I'm presuming the offence in question would be the breach of the Intellectual property right referred commonly to as "Trade Secret".

Actually the free speech issue is a distraction on this as it could very well be covered by conditional access legislation. I think the relevant legislation was enacted into Irish law (from Eu Directive) a few months ago. Under this legislation it is an offence to publish information that would allow people to break conditional access systems. It would of course be stretching the law to cover DVDs by arguing that CSS is conditional access. But in allowing the copying of DVDs, it does come under copyright law which now is a lot more powerful. It has come a long way from BSkyB et al Vs David Lyons (Dublin HC, `93-94). :-) One case that I know a lot about ;-).

Regards...jmcc

Red Moose

Originally posted by 80project


I'd still reckon it would come under breach of Trade Secret. Theres usually quite a broad construction given to such acts.

Its actually a very interesting area. I have to submit a dissertation in March and I'm looking for some good topics that could marry what I'm studying and what I'm interested in:)
This is the kind of thing which I could write on:)

Surely it would only be a Trade Secreit violation if he had signed a contract or something to prohibit him from distributin info that arose from work at the company. DeCSS arose outside a company, on it's own, so it is independent of company secrets, etc., . IANAL (and looking at some other posts in College/Work, you obviously are/will be).

If you come up with something on your own that is copyright work of a company, but is not developed under that company, it can be released under whatever you want unless you try and copyright or patent it.

bonkey

Originally posted by JustHalf
The argument put against him was that it was decryption aided the distribution of pirated DVD's... despite there being no need to actually DECRYPT the DVD's to pirate them. Also, it meant that no player could be developed for an OS the MPAA had not, for want of a better word, approved.

IIRC, the argument was not about pirating DVDs, but rather about pirating their content. In other words, DeCSS allows people to easily write tools which take the DVD content and effectively "re-code" it to another unnencrypted format (like DivX), which could then be distributed over the internet.

Of course, this is actually not the real issue (IMHO, of course) with DeCSS and its dissemination

The DVD content system allows the disk to contain instructions to disable "commands" at various points. For example, some DVD I got recently - Mummy Returns, special Edition, Region 1 - shows some trailers after you hit "play movie" but before the movie starts. Others show FBI warnings at this point. The Farscape DVDs all have fairly long startup sequences of everyones logo.

In all of these situations, the player does not recognise commands to skip to the root menu, and in most cases ignores fast-forward, stop, etc.

One of the conditions imposed on companies who wanted CSS licenses was that their players had to obey these "disabling" instructions. Which means that MPAA have a lovely way of gradually introducing advertising into DVDs which you cannot avoid. Handy revenue for them.

Without the security of CSS, there is no way to force manufacturers to obey these instructions, which would dry up a potentially huge revenue stream. So, anything which opens up CSS must be bad for them. If someone can legitimately build a pc-based player using this stuff, then there is no reason why a hardware based player could not also be built...and the whole thing gets out of control.

MPAA basically want all traces of DeCSS removed. They know it wont prevent or even slow piracy, but they dont want the decryption "legitimsed" in any way.

Course, looks like they may be fighting somewhat of a losing battle on that now.

jc

b20uvkft6m5xwg

Red Moose

Surely it would only be a Trade Secreit violation if he had signed a contract or something to prohibit him from distributin info that arose from work at the company.

Not necessarily, usually a broad construction is given to the interpretation. Whether cracking the process is a breach is uncertain. AFAIK, a breach can arise whether or not I have a contract or agreement w/ the company not to reveal info. For instance, if I was to magically concoct the Coca-Cola formula, they would probably sue me for breach of trade secret...ie- using the process that makes Coke.

I think JMCC was intimating such here...

it could very well be covered by conditional access legislation. I think the relevant legislation was enacted into Irish law (from Eu Directive) a few months ago. Under this legislation it is an offence to publish information that would allow people to break conditional access systems.

Its all very unclear. As w/ most things there is no right or wrong answer, its all down to the jurisdiction and the judge. I was hypothesising, playing Devils Advocte for the DVD co.s.
All arguments here-to-fore by everyone are plausable.

BTW...

IANAL (and looking at some other posts in College/Work, you obviously are/will be)