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Re: Amicus Brief in DVD CCA v. Bunner, et al.

On Thu, Oct 11, 2001 at 12:53:17PM -0700, Walter Landry wrote:
> > I spoke with Allonn Levy on the phone a couple of weeks ago, and he
> > asked me to ask the Debian Developers to draft an Amicus Brief
> > ("friend of the court") document for submission to the California
> > Supreme Court, who are currently deciding whether to hear Matt's
> > appeal on jurisdictional grounds.  See
> > <http://www.eff.org/IP/Video/DVDCCA_case/20010808_eff_pavlovich_pr.html>.
> What is the time limit on this amicus?

Our goal at this point is to try to convice the California Supreme Court
to take the case.  They could decide to take it, or pass on it at any
time (the appeal brief was due, and filed, on Sept. 14th), so time is of
the essence.

It's 100% my fault that we're off to such a late start, so please don't
blame Allonn Levy or Matt Pavlovich.

I have communicated with Allonn Levy again and he suggests narrowing our
focus a bit for this phase.  I'll paraphase what he told me.

At this initial stage all we want to do is convince the High Court that
1) this issue is important to many people (i.e. it sets new (bad)
precedent) and 2) it should expend its strained resources to render a
new decision.

We should start out the letter by telling the Court who Debian is, why
we are impressive and important (blow our own horns) and why we are
interested in this issue.

Next, we begin to convince.  To do that, its best not to openly attack
the Court's factual findings (that suggests the case is confusing and
maybe the court should pass on it).  Instead, we should just pick a few
issues and state them as fact (often you will find there is no need to
actually say gee, the Court is totally off on this).

Allonn identified a few factual issues that we may want to keep, and
recommends holding off on the rest -- perhaps with an eye towards
including it in a brief if the Court grants review:

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.
"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.
---and ---
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 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.

We should also try to focus some argument on why this decision is bad for
our constituency.  If the new rule really is that anytime someone posts
information relating to an industry, they can be sued in States wehre that
Industry has a dominant presence, what does that mean for coders in other
states?  Other countries?  Are people who volunteer for open-source projects
less likely to do so if they know they can be dragged into California by
any company that makes an allegation of Trade Secret violation simply
because their information deals with the Computer Industry?  What about
people who simply report or talk about the industry - are they less likely
to do so because they can be sued for defamation in any state where the
industry exists?

Allonn concluded that this type of discussion can be very helpful to get
the Court thinking about the unintended effects of the Pavlovich

G. Branden Robinson                |    Kissing girls is a goodness.  It is
Debian GNU/Linux                   |    a growing closer.  It beats the
branden@debian.org                 |    hell out of card games.
http://people.debian.org/~branden/ |    -- Robert Heinlein

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