Openlaw on Open DVD.
The Openlaw/DVD forum is an open public forum developing arguments to challenge publishers' assertions of absolute control over digital media. The forum was established to help the defense of the web publishers who posted DeCSS code, a step toward enabling the viewing of DVDs on all platforms. We have since broadened focus to general discussion of challenges to the Digital Millennium Copyright Act's imposition of "access controls" and enforcement of "copy controls" that may too easily become limitations on the use of copyrighted material.
Background: We offer a roadmap to the DeCSS cases, the dvd-discuss FAQ, and more information collected on the resources page. Bruce Bell's The Coming Storm and John Gilmore's What's Wrong With Copy Protection describe some of the threats the DMCA poses to open source and free software.
The inflexible controls of CSS prevent people who have legitimately purchased disks in DVD format from making full use of those works. Without licensed DVD players for Linux and other operating systems, an entire class of computer users is completely cut off from viewing DVDs. CSS prevents many fair uses of the DVD works even on "supported" systems. DeCSS describes the operation of CSS so as to facilitate the creation of software DVD viewers for Linux and to expand the possible uses of DVDs. Yet rather than welcoming these potential additional viewers, the industry appears to fear that permitting broader interoperability of its format would weaken its monopoly on player devices.
The Electronic Frontier Foundation and Stanford Law School Dean Kathleen M. Sullivan represented web publisher 2600 Magazine and Emmanuel Goldstein when they were sued by the movie industry for posting DeCSS code, allegedly to break the encryption access controls on DVDs. The Second Circuit Court of Appeals affirmed the Southern District of New York opinion barring 2600 Magazine from posting or linking to DeCSS code. In the California trade secret case, however, the appeals court has reversed an injunction on the posting of DeCSS, stating that the code is speech protected by the First Amendment. The California court also ruled against the DVD Copy Control Association in its bid to haul out-of-state developers to trial in California.
We believe the Digital Millennium Copyright Act's anticircumvention provisions stifle free speech and competition in the production and dissemination of audiovisual materials. The total access controls imposed by CSS prevent fair use of the materials, hampering our ability to comment, criticize, discuss, or build upon works published on DVD. The injunctions also block First-Amendment-protected expression in and about the DeCSS program and discussion of access control systems.
California Supreme Court Hears Bunnner Trade Secret Case, May 29, 2003The appeals court below had ruled that Bunner's publication of DeCSS was protected by the First Amendment, reversing the trial court's injunction.
2600 Magazine Files for Rehearing by Second Circuit En Banc, January 14, 2002; Second Circuit Denies RehearingBecause of the tremendous import of the decision and its conflicts with Supreme Court precedent, 2600 Magazine has asked the entire Second Circuit Court of Appeals to review the panel decision in Universal v. Reimerdes. "Free speech principles should turn not upon newly minted distinctions between pen-and-ink and point-and-click," say EFF and lead counsel Kathleen M. Sullivan, Dean of Stanford Law School.
for Rehearing En Banc
Second Circuit Affirms Decision Against 2600, Nov. 28, 2001The Second Circuit Court of Appeals has affirmed Judge Kaplan's decision that 2600 Magazine violated the DMCA by posting DeCSS code. Opinion available in HTML and PDF versions thanks to Cryptome and Declan McCullagh.
upholds ban on DVD-cracking code, CNet News.com, Nov. 28, 2001
On the same day, the New Jersey District Court dismissed
Prof. Felten's DMCA challenge against the RIAA, SDMI, and the
U.S. Government. The court found no case or controversy because the
RIAA had withdrawn its threat to sue.
Bunner Wins Reversal of California Trade Secret Injunction, Nov. 1, 2001Holding that DeCSS code is "pure speech" that must not be subjected to prior restraint, the California appeals court lifted the preliminary injunction on Andrew Bunner's publication of DeCSS. In DVDCCA v. Bunner, the DVD Copy Control Association asserted that Bunner and 500 John Does misappropriated its trade secrets by publishing DeCSS.
DVDCCA's statutory right to protect its economically valuable trade secret is not an interest that is "more fundamental" than the First Amendment right to freedom of speech or even on equal footing with the national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint. Our respect for the Legislature and its enactment of the UTSA cannot displace our duty to safeguard the rights guaranteed by the First Amendment. Accordingly, we are compelled to reverse the preliminary injunction.
Programmer Indicted for Circumvention Conspiracy, August 28, 2001Dmitry Sklyarov and his employer, Elcom, were indicted on 5 counts of providing, marketing, and conspiring to provide and market technology to circumvent the encryption of Adobe eBooks. The case is the first criminal indictment under the Digital Millennium Copyright Act's anticircumvention provision.
California Appeals Court Rules Pavlovich Can Be Sued in California, August 7, 2001On writ of mandate from the California Supreme Court, the Sixth Appellate Court ruled that California has jurisdiction over Pavlovich's alleged misuse of the DVDCCA's trade secrets.
resident can be sued in DVD case, CNet News.com, August 7, 2001
Programmer Arrested for "Trafficking" in Circumvention ProgramDmitry Sklyarov, a Russian Ph.D. student in the United States to give a presentation on the security flaws in Adobe's eBook technology, was arrested and charged with criminal violation of the DMCA. His arrest sparked nationwide and international protests, leading Adobe to retract the complaint that sparked the government's interest. Sklyarov has recently been released from prison on $50,000 bail.
Princeton Scientist and Research Team Sue for Declaration that Their Research Does Not Violate the DMCAPrinceton professor Ed Felten and the team of researchers who examined watermarking technologies at SDMI's invitation in the HackSDMI challenge have filed suit against SDMI, RIAA, Verance, and the federal government after being forced to withdraw their paper from a spring conference. The suit, supported by the EFF, challenges the DMCA's chilling effect on scientific research, and private parties' broad invocation of the law to silence discussion of flaws in their products.
Hearing on Pavlovich Jurisdictional Challenge, June 12, 2001Attorneys for Matt Pavlovich argue that the Texas resident may not be sued in California on the DVD-CCA's trade secret case. DVD-CCA sued him along with numerous other defendants, claiming all were illegally publishing a trade secret of the copy-control association -- DeCSS.
Parties to Universal v. Reimerdes Submit Supplemental Briefs on First Amendment Questions, May 30, 2001The parties filed letter briefs responding to the Second Circuit's post-hearing questions May 30.
Openlaw participants suggested arguments in the TWiki web.
DeCSS Appeal Argued May 1, 2001
2600 Magazine asked the Second Circuit Court of Appeals to preserve fair use of digital media and the First Amendment protections for the expressive nature of code by holding that its posting of DeCSS code does not violate the anticircumvention provisions of the Digital Millennium Copyright Act. Stanford Law School Dean Kathleen M. Sullivan argued for 2600 in the case, which tests the balance of copyright with free speech and the public domain. Participants in the Berkman Center's Openlaw forum submitted an amicus brief supporting 2600 in the district court and assisted amici in the appeals briefing.
2600 has posted audio recordings of the oral argument in several formats
EFF Files Reply Brief on Appeal, March 19, 2001
EFF's reply concludes the briefing on appeal of Universal v. Reimerdes.
a complete set of earlier briefs and documents from Universal v. Reimerdes is indexed here
Amici for MPAA: Recording Industry Association of America (RIAA); American Federation of
Musicians of the United States and Canada (AFM); American Federation of
Television and Radio Artists (AFTRA); American Film Marketing Association
(AFMA); American Society of Composers, Authors and Publishers (ASCAP);
Broadcast Music, Inc. (BMI); American Society of Media Photographers
(ASMP); Association of American Publishers (AAP); Business Software
Alliance (BSA); Directors Guild of America, Inc. (DGA); Graphic Artists
Guild; Interactive Digital Software Association (IDSA); National
Association of theater Owners (NATO); National Cable Television
Association, Inc. (NCTA); National Collegiate Athletic Association (NCAA);
National Football League and National Football League Properties, Inc.
(NFL); National Hockey League (NHL); National Music Publishers' Association
(NMPA); office of the Commissioner of Baseball; Producers Guild of America
(PGA); Professional Photographers of America (PPA); Reed Elsevier, Inc.;
Satellite Broadcasting and Communications Association (SBCA); Screen Actors
Guild, Inc. (SAG); Software & Information Industry Association (SIAA); and
Writers Guild of America, West, Inc. (WGA)
Studios Respond to 2600's Appeal, Feb. 20, 2001
The Studios urge that Kaplan's decision is correct in every respect (if perhaps too solicitous of appellee's speech arguments) and should be upheld on appeal. They think they're being clever in the footnotes.Cryptome for putting these materials online.
The Federal government has been permitted to intervene in Universal v. Reimerdes and filed this brief with the Second Circuit Court of Appeals. According to the U.S. Attorney's office, the DMCA's anticircumvention provision raises no First Amendment concerns, neither because DeCSS is expressive nor because 1201 effectively shuts off fair use of digital media. "[T]his lawsuit is really about computer hackers and the tools of digital piracy."
2d Cir. Court of Appeals Docket #: 00-9185 (see entries for Feb. 8). The Assistant U.S. Attorney moved for leave both to file a brief and to participate in oral argument.
Numerous Amici File Briefs in Support of 2600, January 26, 2001Briefs:
DeCSS Allies Ganging Up, Declan McCullagh, Wired News
Free-speech issues underlie DVD-code appeal, Lisa Bowman, CNet News.com
Battle Lines Harden Over Net Copyright, John Borland, CNet News.com
2600 Appeals DeCSS Decision to Second Circuit, January 19, 2001On behalf of 2600 Magazine, the EFF filed its appeal brief with the Second Circuit Court of Appeals. The appeal challenges the injunction issued by Judge Lewis Kaplan as an unconstitutional restriction of speech and on the press -- because it denies fair use of "technologically protected" media and because it prohibits publication of and linking to computer code on the ground that others might misuse that speech. Numerous amici will file briefs supporting 2600 next week.
Responding to an order from the California Supreme Court, a California Appellate Court ordered the DVDCCA to show cause why it should be permitted to sue LiViD developer Matt Pavlovich, a Texas resident, in California on its trade secret claims. The court ordered proceedings stayed in the meantime.
The California Supreme Court granted
Matt Pavlovich's petition for review, giving the Texas resident the
opportunity to argue that he should not be forced to defend the suit
in California. Derek Fawcus, a British national living in Scotland, has a similar motion to quash pending.
Excepting censorware blacklists and damaged access
controls (see below), circumvention of
access controls is now prohibited. Circumvention of copy
controls is still covered only by traditional copyright infringement.
The Librarian of Congress, on the recommendation of the Register of Copyrights, has announced the classes of works subject to the exemption from the prohibition on circumvention of technological measures that control access to copyrighted works. The two classes of works are:
The workshop considers the issues raised by license, rather than sale, of software, and the use of shrinkwrap or clickwrap licenses with broad disclaimers of warranty.
Valenti v. Lessig: A Debate on the Future of Intellectual Property, Oct. 1 -- Archive now onlineMPAA head Jack Valenti and Stanford Law Professor Larry Lessig faced off in a debate on the future of intellectual property online. Valenti argued that unauthorized use of copyrighted material was "theft," while Lessig urged a return to the American framers' limited concept of the copyright monopoly. Will content control or the public commons prevail?
Hughes argues that the movie studios' case should be dismissed because only the DVD-CCA has standing to sue to protect the CSS mechanism -- the studios have no authority to grant or deny circumvention. The brief also argues that the CSS scheme does not fall within 1201(a)'s "access control" provisions.
Kaplan Enjoins 2600 from Posting, Linking to DeCSS
Opinion and Final Judgment (HTML), Aug. 17, 2000Emmanuel Goldstein's Response and non-hyperlinked list of DeCSS sites
In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.
Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era.
Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs' favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment. Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory relief.
The trial tested the scope and constitutionality of the DMCA's anticircumvention provisions, as Judge Kaplan was asked to decide whether 2600 Magazine's posting of DeCSS, a program that descrambles the files on DVDs, violates Section 1201 of the Act. The plaintiff movie studios claimed that DeCSS illegally circumvents their discs' access controls. The defense challenged the studios' assertion of an absolute right to control the manner in which movies are played, arguing that DeCSS enables fair use of DVD media and facilitates the playing of movies on unsupported operating systems. The DMCA's "access control" should not become a use control restricting the viewing of digital media.
EFF Defense Team Files Closing Brief, Aug. 8In their post-trial brief submitted to Judge Lewis Kaplan Tuesday, defendants argue that the Digital Millennium Copyright Act ("DMCA") cannot constitutionally limit fair use by denying to the public the tools needed to exercise that right. The First Amendment demands that a fair use defense be read into the statute or that its anticircumvention provision be struck. Moreover, the anticircumvention provision is an unconstitutional burden on the protected speech of DeCSS itself.
The eight movie studios argue, in a brief that paints over the constitutional questions, that an injunction against 2600's posting of DeCSS is necessary to preserve their intellectual property from piracy. Both sides now await Judge Kaplan's decision.
News reports: Washington Post, CNET News.com, New York Law Journal.
Trial Testimony, July 17-25At the end of trial testimony, Judge Lewis Kaplan concluded that DeCSS is expressive speech protected by the First Amendment, whether in source code or an executable binary. In post-trial briefs, the EFF-led defense will urge him to find that the First Amendment does not permit him to enjoin distribution of the code and thatthe DMCA does not give copyright holders unlimited latitude to prevent fair uses of their works.
Day 1 --
Monday, July 17: Opening Arguments, Plaintiffs' witness Michael Shamos. [transcript].
Day 2 --
Tuesday, July 18: Defense witness Frank Andrew Stevenson; plaintiffs' witness Robert W. Schumann. [transcript].
Day 3 --
Wednesday, July 19: Plaintiffs' witnesses Marsha King (Time Warner VP) and Franklin Fisher (economist). [transcript].
Day 4 --
Thursday, July 20: Defense witness Jon Johansen; plaintiffs' witness Mikhail Reider (MPAA anti-piracy); defense witness Edward Felten; defendant Emmanuel Goldstein. [transcript].
Day 5 --
Friday, July 21: Defendant Emmanuel Goldstein; defense witnesses Matt Pavlovich, Larry Peterson, Peter Ramadge. [transcript].
Court Recessed Monday
Day 6 --
Tuesday, July 25: Defense witnesses Chris DiBona, Andrew Appel, Michael Einhorn, David Touretzky, Ole Craig. Touretzky's DeCSS Gallery was a highlight. [transcript].
Trial Concluded: brief summary; EFF summary
Attorneys to submit briefs August 8 addressing (1) the efficacy or futility of an injunction; (2) Summers v. Tice on allocation of the harm among multiple ripper utilities and burden of proof; (3) evidentiary issues on the extent to which Kaplan can conclude from hearsay that decoded DVDs are available over the Internet. Briefs may also include other legal arguments.
The EFF, which has been coordinating the DeCSS defenses, held a press briefing Friday, July 14. A panel Friday afternoon discussed DeCSS and the DMCA as part of 2600's H2K conference.
Other documents and resources from Universal v. Corley.
SUMMARY: The United States Copyright Office and the National Telecommunications and Information Administration invited interested parties to submit comments on the effects of the amendments made by title 1 of the Digital Millennium Copyright Act, (``DMCA'') and the development of electronic commerce on the operation of sections 109 and 117 of title 17, United States Code, and the relationship between existing and emerging technology and the operation of such sections.
Several Openlaw/DVD participants submitted comments, including Robert S. Thau & Bryan W. Taylor, John M. Zulauf, Ken Arromdee, and Bryan W. Taylor.
Before beginning trial on the merits, Kaplan denied 2600's motion requesting the Judge's recusal (see also Garbus affidavit).
Michael Shamos claims to have wended his way through the complex process of creating a DivX ;-) (and he can't even get the name right) copy of a movie and trading it online. See for yourself, and offer criticsm and questions to ask Shamos, on the dvd-discuss list.
Openlaw participants have filed an amicus brief in Universal v. Reimerdes, the New York case brought by eight motion picture studios against 2600.com. We argue that the studios' proposed motion to enjoin 2600 from linking to DeCSS would work an extraordinary prior restraint on speech in violation of the First Amendment.
Thanks to John Young's Cryptome, we now have the first sets of deposition transcripts online: Jack Valenti (MPAA), Robert W. Schumann (technical expert), Kenneth Jacobsen (MPAA anti-piracy chief), Fritz Attaway (MPAA general counsel).
Kaplan refused to keep transcripts and video off the Internet in response to plaintiffs' motion for a protective order, saying that plaintiffs' witnesses could "take care of themselves" to prevent embarassment, but declined to open depositions to members of the press. Read defendants' opposition, letters, press motions to intervene, transcripts, and Kaplan's order.
Berkman Center Director Charles Nesson's amicus brief argues that bypassing access controls cannot constitutionally be called circumvention when it is necessary to enable fair use of access-controlled material. To enable that constitutionally-mandated fair use, the law must also permit the distribution of bypass devices, such as DeCSS.
With contributions from participants here, Copyright's Commons filed a reply comment with the Copyright Office of the Library of Congress in its rulemaking on exemptions from the Digital Millennium Copyright Act's anticircumvention provision. Concerned that "access control devices" could too easily become use limitations, the comment urged the Office to grant a broad exemption for the circumvention of any devices that control use of works along with access to them.
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