On Thu, Oct 19, 2000 at 12:30:47PM -0700, Tyler Ochoa wrote:
>> >>> Eric Eldred <eldred[_at_]eldritchpress.org> 10/17 9:59 AM >>> >> I think the difference between Vault v Quaid and Universal v >> Sony on the one hand and the DMCA on the other is that the >> former allowed *any* "infringing"technologies if there was a >> "substantial non-infringing use," while the rule under the >> DMCA is that a small exception can be made for "substantial >> non-infringing commercial use," otherwise *all* fair use is >> banned. (This rule is slightly different from Tyler's >> "primary purpose is for infringement.") <<<<<
I certainly do not wish to misinterpret you or misquote you. Tyler, you don't quote it below, but here it is again, as I quoted in the previous message (maybe there is a mistake in the chevrons?--was this from some other person--I've tried-- miserably--to straighten out the chevrons below--it would be easier if all mailers maintained a decent line length and wrapped lines):
>>On Sat, Oct 14, 2000 at 02:30:59PM -0700, Tyler Ochoa wrote: >>> [...] >>> I think the DMCA overrules Vault v. Quaid. It makes the selling of >>> circumvention technology illegal, even if it can be used for >>> non-infringing purposes, if the primary purpose is for infringement.
I don't think this is necessarily the court's position, but I do agree it seems to be the DMCA's interpretation if one were to extrapolate the court's position on circumvention to that of ordinary infringement. There might be a difference between this case of DeCSS and another case under DMCA. (Note that DeCSS is not sold, either.)
The distinction I am trying to make between Sony and Vault is simply that, in the case of Vault, making a backup copy was fair use (not because of some statutory exception, but because of the inherent nature of fair use involved in any use of copyrighted material), and *therefore* buying and selling a program to allow access to make this fair use was lawful. If Universal v Corley overrules the user's rights to obtain a program in order to carry out fair use, it throws out much of the legislative history of the DMCA, and the exceptions that were placed therein, as well as much of what we understand as fair use in general.
> I also disagree somewhat with your characterization of the
> statute. You wrote "the rule under the DMCA is that a small
> exception can be made for 'substantial non-infringing
> commercial use,' otherwise *all* fair use is banned." I think
> the last clause should read "otherwise *all* use is banned,
> whether it is fair or unfair." You're right, the DMCA changed
> the Sony rule. The DMCA may be unwise, even unfair; but
> unless it is unconstitutional, it is the law.
I'm not sure what "use" we are talking about here. In the case of DeCSS, the use is exactly the same as in CSS, use of a DVD. Both "circumvent" its "encryption", and the language of the legislative history indicates that "lawful circumvention" was foreseen--whatever that means. Both imply use of a DVD, and a use after purchasing a disc means fair use. It makes no sense to ban "use" of DeCSS unless one bans use of CSS at the same time--but that is certainly not what the courts says here. Again, there is no licensing or contract issue here; the purchaser and user of a DVD is never licensed--that was stipulated.
But the question is really access in order to "circumvent." In the DeCSS case, the DMCA is being applied to ban access. But CSS is not copyrighted, and in order to use DeCSS, one has to first purchase a DVD disc and a drive (which comes with a player). This "access" right appears novel to me--where did it come from--is there some separate contract or license or permission to access, separate from buying the DVD?
I can see banning circumvention in the sense of bypassing paying for a pay-per-view movie. But here circumvention ought to come within the boundaries of fair use, since the discs were bought.
Now, as far as whether DMCA changed the Sony rule, it may well be that the statute is contradictory on that point. The legislative history is full of statements from congresspeople who said it did not, and the exceptions were crafted so as to ensure that it did not. The application in this court, however, splits off one part of the law to maintain a particular strong interpretation of the DMCA. I believe if one considers the law as a whole, then this cannot be true, and if that is the case, then the law as a whole must be struck down--the act was a series of compromises that go all together or not at all.
> I find myself in the difficult and uncomfortable postition of
> defending a law that I opposed and don't like, just because I
> think it is not entirely irrational and is probably not
> unconstitutional. Please bear in mind that I am trying to
> give the opposing viewpoint and to correct your legal errors
> (which are many).
Understandable. I appreciate your willingness to discuss this case--I apologize for seeming to attack you here--after all, I brought it up in a series of questions to open it for discussion. But I believe it is important to discuss it completely, even if that means strong feelings are aroused.
And please correct my legal errors (which are many--I am not a lawyer). I am just a technically-inclined person who is also interested in the application of right coast code to left coast code.
> I am on your side on term extension, so
> please don't shoot the messenger.
I understand and appreciate that message, Tyler. It is coming through strong. But your reluctance to apply the same thinking to DMCA is also coming through strong. Perhaps I see similarities where you see distinctions.
>> Open source advocates find this latter rule inapplicable. And >> the constitutional basis for fair use as recognized under >> Vault is being thwarted by a statute that has not been >> sufficiently examined to see if it is conflict with the First >> Amendment.
Yes, I agree he did try to take account of the First Amendment. But it seems highly unusual to me, that The New York Times can publish the Pentagon Papers free of prior restraint (even though the govt maintained that violated national security), the Progressive magazine can publish plans for a nuclear weapon free of prior restraint, The New York Times can publish links to DeCSS code--but 2600 magazine cannot publish links to the DeCSS code on its web site, because that would "threaten" the current business model of Hollywood movie magnates.
That's one part of the First Amendment. The other part was not considered properly by Judge Kaplan. But I'll simply refer interested readers to the OpenLaw discussion at http://eon.law.harvard.edu/openlaw/
>> I believe the legislative history of DMCA shows that >> legislators had no intention to overrule the Betamax case, and >> I believe the same is true of Vault v Quaid. The legislators >> might have been on the right track following the WIPO treaty >> to ban "black box" devices that allow users to circumvent >> paying for pay-per-view TV. But in this case, users are not >> circumventing paying. Granting movie studios a perpetual >> patent-like right to control licenses for players, and using >> copyright law in the form of the DMCA to do that, seems beyond >> the scope of congressional power. <<<<<
Yes, it is a question whether they all knew that or not--and whether Judge Kaplan realized that or not. But certainly Senator Ashcroft was adamant that it did not. The way that Congress passed both CTEA and DMCA, it seems to me, would argue strongly for correction by limiting campaign contributions and reforming the way Congress does its business.
> Second, there are many users who ARE circumventing paying.
I don't support anyone circumventing paying. But there was no evidence for that point in this case, that DeCSS is involved with infringement.
> You argue as if DeCSS was ONLY being used to create
> Linux-compatible players, which is simply not true.
There was much undisputed testimony from the creators of DeCSS that this was exactly their purpose, to play discs on Linux. And there was no testimony, even disputed, that provided evidence that DeCSS was used to infringe.
>The
This is an interesting point. Could Congress simply delete the fair use clauses in the Copyright Act, and therfore ban all uses that are customarily found fair now? Or is there some deeper justification for fair use in the Constitution, that would prevent Congress from doing that?
> The only debatable question is the
> First Amendment question.
We raise other issues, including the application of the law to reverse engineering.
> [Eric wrote:] > In the DeCSS case we amici argue that for the
> purposes of compatibility, to > construct a Linux open source
> DVD player, it was necessary at one point to > decrypt on a
> Windows machine, save a copy, and then move the copy to a
> Linux > machine. Do you think that should not be fair use,
> because of your framework > of what and what is not allowed
> with reproduction under fair use? <<<<<
> >
> >[I wrote:] I'm sorry, I don't see this as a fair use case.
> >Do I think that the DMCA and > encryption have the potential
> >to restrict fair use and prevent exploitation > of works in
> >the public domain? Yes. Do I think that movie studios are >
> >overreaching, greedy bastards who are using DVD encryption to
> >protect their > traditional market segmentation and make more
> >money? Yes. Do I think that a > consumer has the right to
> >decrypt DVDs so that he/she can view them on a > Linux
> >machine? No. If you want to view a DVD, buy a DVD player.
> >If it > doesn't work on a Linux machine, tough. I don't see
> >anything in the > Constitution that gives you the right to
> >view DVDs on a Linux machine. As > Judge Kaplan said:
> >
> > "Indeed, even academic commentators who take the extreme
> > position that most > injunctions in intellectual property
> > cases are unconstitutional prior > restraints concede that
> > there is no First Amendment obstacle to injunctions >
> > barring distribution of copyrighted computer object code."
> > Slip op. at 28.
>> >> [Eric replied:] Well, the DMCA does allow circumvention for >> the purposes of compatibility. The lower court ignored that >> or dismissed it. And the computer code argument Kaplan cites >> does not rule here. (Though I'd like to hear some more from >> the "academic commentators" on this issue.) <<<<< >> >> The article the court cited was Mark A. Lemley and Eugene >> Volokh, Freedom of Speech and Injunctions in Intellectual >> Property Cases, 48 Duke L.J. 147 (1998). It is an excellent >> article, and I am in full agreement that most preliminary >> injunctions in IP cases are unconstitutional. Computer code, >> however, is not solely speech; it is also a functional >> machine. Congress has the power to regulate it as a machine, >> as long as they aren't doing it to target the speech >> involved. You fail to explain why that argument "does not >> rule here."
I'll have to defer full argument on that point to our amici brief in appeal. This message is getting too long already.
>> [I do agree that the weakest part of the judge's >> decision is his interpretation of the compatibility exception >> to the DMCA; but it is a narrowly written exception, which >> may not provide the result you seek even if intepreted more >> broadly.] >>
> >>>>>
>>> I don't see anything in the Constitution that bars me from >>> viewing DVDs on a scanning electron microscope--or my own >>> Linux machine--if I have purchased the DVD disc. <<<<<
The First Amendment says "no law," which seems to me to forbid Congress from doing exactly that. And the Copyright Clause allows Congress to enact copyright laws--as long as they meet the specific standards there. It is going pretty far to find that a law "to promote the progress of science and useful arts" could ban me from studying a DVD disc under a scanning electron microscope, if such use was not specifically allowed by copyright holder.
> >>>>>
>>> This is not a license issue, since everyone agrees no license >>> is involved here--no license says I cannot view the DVD on a >>> Linux machine. Nor is it a patent issue nor a normal >>> copyright infringement case--there is no asserted "substantial >>> similarity" of expression involved. If it is copyright law >>> that bars me from viewing the DVD on a Linux machine, what >>> happened to the "limited times" provision of the Copyright >>> Clause? (Note that the same encryption technology is being >>> used to lock up public domain material as for material under >>> copyright.) <<<<< >> >> Congress' argument is that the DMCA is NOT a copyright law; it >> is a law the prevents the distribution of technology that has >> no commercially significant purpose other than to infringe >> and/or to decrypt/descramble. You have a right to copy a >> public domain work to which you have access. The question is >> whether you have a constitutional right of access. I think >> you SHOULD have a right of access in many cases. But your >> right of access may be outweighed by the studios right to use >> encryption and scrambling to protect their copyrighted works.
>> Remember, I wrote that "the DMCA and encryption have the >> potential to restrict fair use and prevent exploitation of >> works in the public domain." But at this point, it is just >> that: potential. Show me a case in which someone is using >> DeCSS to descramble public domain works, and I'll be on your >> side.
See below.
>> But right now, the only "commercially significant" use >> of DeCSS is to illegally reproduce copyrighted works. I may >> not like that standard any better than you do, but I'm not >> convinced its unconstitutional.
DeCSS is not a commercial product--what is the import of that phrase in the law? Since DeCSS was used in the development of LiViD, a Linux DVD player, why is not that significant?
>> <<<<< >>> What is happening here is that a piece of computer code is >>> being banned under the copyright law (with prior restraint) >>> because a copyright holder asserts that it might "threaten" >>> their rights to make money--even if there is no evidence >>> to show it can be "infringing" in any normal sense. In my >>> opinion copyright should be used to encourage publication, >>> not to ban all future publication of an expression.
Sorry, I don't under the use of "is outside" here. Do you mean that the DMCA is not part of the Copyright Act, or something else? If the former, then I still disagree. No legislature can pass a law regulating copyright without maintaining the balance struck in the Copyright Clause of the Constitution. The lower court simply ignored that point, and maintained that the limited monopoly the Constitution provides for, could be overruled later by Congress in legislation concerning monopolies. That might be true for other commerce, but not for "intellectual property" covered by the Copyright Clause, which clearly specified the purpose of such a monopoly, and therefore the kind of analysis the Congress should do (and failed to do in this case).
> and is arguably based on
> Congress' Commerce Clause power, not the Patent and Copyright
> Clause. But you're right, it is being banned not because it
> is itself infringing, but because it can be used to infringe.
> But the ban is probably constitutional, because it is the
> functional aspect of the software that is being banned, not
> its communicative aspect.
The lower court's distinction, we maintain, is without merit here. We don't think code should be banned--only human use of code. Software is not any more "functional" than any other use of language or speech act--it always requires a human person to apply it. Humans can be responsible under the law; software code cannot. To make the distinction as the lower courts says would mean that it would be impossible even to discuss many important matters concerning software, such as whether or not security works, or a professor such as Touretzky teaching students how to code, and so on. There is no way the code itself can be said to infringe or circumvent or avoid paying--but humans can be said to do so.
Didn't Judge Kaplan rely on a dissenting opinion for this rule? Isn't that hazardous?
> >>>>>
>> I believe this IS a fair use case, and briefs by amici well >> present that case. Unless the encryption can be lawfully >> circumvented, nobody can make fair use of the encrypted >> material, for example by quoting parts of a movie in a lecture >> at a law school. <<<<<
You always have to decrypt the movie in order to view it, with CSS or with DeCSS or some other way. This is a technical point obscured by the studios.
> [I do
> have to decrypt it to view it on a Linux machine, but I have
> to buy a TV before I can view a broadcast too.]
Yes, a user of DeCSS or the Linux player LiViD also buys the DVD drive, a player, and a DVD disc. What is the difference between using CSS or DeCSS here?
> So I have
> "access" to the movie in a viewing sense. What I can't do is
> literally copy small portions of the movie to use in, say, a
> scholarly documentary on film. But that right has already
> been greatly circumscribed by the courts under general
> copyright law. Try to use even a very short clip from a film
> and you'll find yourself having to pay a license fee. I don't
> agree with that narrow view of fair use, but I don't think the
> DMCA is really changing things to any great extent.
Well, it is codifying what was simply not affirmatively clear before. The right, I believe, is not a statutory right, but rather the right to fair use is logically implied by publication and sale of copyrighted material.
> >>>>>
>> It is disingenuous to assert that users have the right to >> circumvent if they can only figure out how to do it >> themselves. This is the key point of Vault v Quaid--that if >> users have that right, then they also have the right to >> purchase the circumventing technology to do so. <<<<<
>> If the higher courts do not recognize this, then copyright >> law as we know it will start to become meaningless in today's >> economy. Publishers will lock up works forever and fair use >> will remain only a technical possibility for a few experts. >> The balance will be tipped toward publishers not the public. >> <<<<<
The lower court in the SDNY DeCSS case mentioned in a footnote the possibility (far in the future) when CSS is used to encrypt public domain material--and decided that point did not need to be addressed in the decision. But the future is already here. The same "digital rights management schemes" are being applied to public domain material as to material under copyright.
For example, Microsoft recently released its Microsoft Reader software for electronic books. This program encrypts books. I was able to download some books from Barnes and Noble's site and "circumvent" Microsoft Reader, copy them, put them into HTML format, and I have reprinted one of the books (in the public domain) on my website. I am prevented by copyright law from reprinting some others, because they are in term. But whether or not the encrypted book is in term, the law as interpreted by the lower court in this case apparently is that I am barred from discussing with anyone else how to access and circumvent the encyption on the books--whether or not they are in the public domain--because at least one book that is still covered by copyright is so encrypted--protected not by technical means but by the DMCA as interpreted by this court.
The result is clearly that copyright term goes out the window and publishers have a perpetual term, just as they wllhave a perpetual patent-like protection on CSS, a system that is not copyrighted or patented in the appropriate way. So I apply the same arguments here as in Eldred v Reno--the balance is in the Copyright Clause itself, not tippable by Congress. What Congress has done with CTEA and DMCA is unconstitutional, I still maintain. But maybe somebody else wants to refute the arguments of a non-lawyer here? (I don't want to antagonize Tyler further--he is too good a contributor to this group and to our understanding of copyright.) Received on Sat Oct 21 2000 - 13:30:46 GMT
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