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raw material for amicus brief, part 1

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.


G. Branden Robinson                |
Debian GNU/Linux                   |           //     // //  /     /
branden@deadbeast.net              |           EI 'AANIIGOO 'AHOOT'E
http://www.deadbeast.net/~branden/ |

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.


The Appellate Ruling contains what appear to be several factual

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

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

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

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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