This is pretty much just an attempt at a blow-by-blow rebuttal of the "FACTS" (boy, scare quotes have seldom been more appropriate) section of the Appeals Court's ruling. See <http://www.eff.org/Cases/DVDCCA_case/20010807_pavlovich_appelate_ruling.html> -- G. Branden Robinson | Debian GNU/Linux | // // // / / branden@deadbeast.net | EI 'AANIIGOO 'AHOOT'E http://www.deadbeast.net/~branden/ |
[PREFACE: Yes, I know I'm saying a lot of things in here that aren't appropriate for an amicus brief. I probably sound way, way too hostile and argumentative. That's okay, the tone can be edited, and I have to write with passion to stay fueled. STANDARD DISCLAIMER: I'm not a lawyer, none of this is legal advice, I haven't located sources for many of the things I need to cite, etc. etc. etc.] FACTS ----- The Appellate Ruling contains what appear to be several factual inaccuracies. It asserts that the discovery materials on record indicate that DeCSS misappropriates trade secrets. However, it is our understanding that this is a matter of fact to be determined at trial. It asserts that the CSS, or "Content Scramble System", is a copy-protection system. While popularly referred to that way, it is no more a "copy" protection system than the scrambling of premium cable channels are. A brief experiment with a cable-ready television set and a VCR will reveal that a copy of the scrambled programming can easily be made, and will duplicate the scrambling as it appears on the screen. CSS works similarly. It provides absolutely no protection against making a bit-for-bit copy of a DVD disc. At a fundamental level, the only content on a DVD is a stram of bits -- digital ones and zeroes expressed as "lands" and "grooves" (or "peaks" and "valleys"). These can be compied directly and exactly, with no understanding of their intended meaning required, in exactly the same way that a person who does not understand Chinese can transcribe Chinese ideographs from one sheet of paper to another, using a pen (or a photocopier). It asserts that the purpose of the Open Source movement is to "make as much material as possible available over the Internet." To the best of our knowledge, no person in the Open Source movement has ever seriously made such a claim. Open Source, as used in the popular press and by its proponents, is a software development methodology. From www.opensource.org: "The basic idea behind open source is very simple: When programmers can read, redistribute, and modify the source code for a piece of software, the software evolves. People improve it, people adapt it, people fix bugs. And this can happen at a speed that, if one is used to the slow pace of conventional software development, seems astonishing." It asserts without any specific citation that the purpose of LiViD, the Linux Video and DVD Project, was to create an "unlicensed" player. Those familiar with LiViD from its inception know that its purpose was to create ways for users of the Linux operating system to watch their DVD's on their computers, a need which had been met by various companies for the Microsoft Windows and Apple Macintosh operating system, but not, at the time for Linux. LiViD used the Open Source software methodology in an effort to develop such a player for the Linux operating system. It asserts that Pavlovich posted the DeCSS program on the LiViD website, but offers no citation for this allegation. It asserts that "Pavlovich never sought or obtained a license to use DVD technology for his LiVid project", without pausing to consider that DVD technology and CSS technology are not the same things. It is perfectly possible to create a DVD that does not use CSS. (_Cosmos_, the PBS science education series, is a set of DVD's that does not use CSS.) Furthermore, since the CSS technology is not patented, software developers have a general understanding that it is not necessary to obtain a license to implement it. It asserts that "Pavlovich admitted that his LiVid project utilized DVD CCA's trade secrets, including those contained in DeCSS," which would seem to be a stunning admission, but no citation of deposition or discovery materials was made. On top of that, it remains to be shown that DeCSS contains any trade secret material. It asserts that "Pavlovich further admitted that through the LiVid project he aimed to develop an unlicensed DVD player that would use DeCSS to decrypt DVD data," also without citation. Since DeCSS is a program for Microsoft Windows, it will not operate on the Linux operating system upon which the LiViD project was doing its development work. Furthermore, it presumes that once must be licensed to create a DVD player. Surely such an assertion cannot be made until a research on outstanding patents on DVD has been made? Furthermore, LiViD's aim was to develop a software DVD player -- that is, a program that takes a stream of bits from some external source -- usually a DVD-ROM physically mounted in a computer, and decodes that stream into comprehensible data. It does not follow that the LiViD project would require licenses to implement various patented aspects of hardware DVD technology (if any exist), if one is not implementing anything in hardware. It asserts, yet again without citation, that "Pavlovich knew that DeCSS was developed by reverse engineering, which he knew was unauthorized." If Pavlovich knew any such thing, he was incorrect. Reverse engineering has long been regarded as a legitimate business practice (need legal citations). It reasserts that "Despite his knowledge of how DeCSS obtained and misappropriated DVD CCA's trade secrets, Pavlovich sought to and actually disseminated those trade secrets." It has never been determined by any court that the Windows program DeCSS obtained or misappropriated DVD CCA's trade secrets; surely that is a matter for the trial court. It asserts that "Pavlovich knew that pirating DVDs is illegal", without providing a citation to the deposition, and without defining the term "pirating". If watching a DVD that one has bought at a retail store on one's own computer in the privacy of one's home is piracy (which was the express purpose of the Linux Video and DVD Prohect), then perhaps the term "piracy" needs to be defined in a way that conflicts less with its general usage. It asserts that "DeCSS facilitates pirating of DVDs," again without citation. DeCSS no more faciliatates pirating of DVDs anymore than a store-bought, big-name brand DVD player does. The digital bitstream that comprises the meaningful portion of a DVD is inherently copyable, being only a series of ones and zeroes. CSS is a means of obscuring the data -- that information which those ones and zeroes are supposed to *mean*, using the centuries-old technique of cryptography. Furthermore, the CSS algorithm is usage-neutral. It, being only a simple means of scrambling data, does not "know" whether the information is hides is being viewed, copied, or discarded. It simply obscures the data. Far more than restricting copying, CSS prevents usage of any kind, until and unless it is circumvented. This circumvention takes place everytime a consumer views a DVD movie which uses CSS -- which is most of the ones he has an opportunity to buy, rent, or borrow from a friend. The "Facts" portion of the appeals court's ruling, which is ostensibly over a jursdictional issue, establishes precious few facts about geographic localities or business contacts between them, which would seem to be important in a jurisdictional ruling. It does not address the fact that a Norwegian teenager, Jon Johansen, has claimed credit for authoring the DeCSS program, along with, allegedly, two anonymous residents of Europe. It is worth noting that reverse engineering in explicitly permitted under Norwegian law, and is not an alienable right under contract.
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