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Re: raw material for amicus brief, part 1

On Thu, Oct 11, 2001 at 04:24:29AM -0500, Branden Robinson wrote:
> -----
> 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.

This is not a mistake.  This hearing must assume the facts asserted by
the plaintiff are true, and then determine if the def. must stand
trial.  Pav.'s claim is "even if DeCSS is illegal, you can sue me in
Cal. for it".

> 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).

Just use the photocopier analogy.  It's more concise.

> 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.

This is true, isn't it?  

> 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.)

This is just them having terminological trouble.  It's not a real
problem w/ the legal argument of the court.  They'll see it as "ha ha,
you're not geeks like us".  Bad.

> 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.

CSS may actually be patented.  

See patents 6,009,171 and 5,910,987, and the email at

> 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.

This is precisely the DVDCCA's claim at trial, which we assumed.

> 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?  

This is precisely the DVDCCA's claim at trial, which we assumed.

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.

This just doesn't make sense.  What are you trying to say here?

> 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 is also explicity allowed in Norway.  

For a US case, see Sony vs Connectix or Nintendo vs Galoob.

> 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.

This is precisely the DVDCCA's claim at trial, which we assumed.

> 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.

Pavlovich clearly knew that pirating DVDs was illegal.  However, this
is not relevant, since not only are no claims relating to piracy being
made, but state courts cannot address them, since copyrights are a
federal matter.  Therefore, whether or not DeCSS facilitates piracy,
and whether or not Pavlovich knew the same, is not relevant, either at
trial or for this hearing.  

> 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.

See above.

> 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.

See previous citation of Bing's declaration.

Hope that helps some.  

sam th --- sam@uchicago.edu --- http://www.abisource.com/~sam/
OpenPGP Key: CABD33FC --- http://samth.dyndns.org/key
DeCSS: http://samth.dynds.org/decss

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