EFF Questions Regarding the DeCSS Cases
maintained by Rob Warren
last updated 3/20/2000
On March 3, 2000, Robin Gross of the
Electronic Frontier Foundation
submitted a list of questions to the
OpenLaw dvd-discuss forum
regarding the current
DeCSS cases. These are the questions, and an attempt to provide some answers.
Robin's original post can be found here.
The contributors to this document claim no warranty or guarantee for the accuracy
of this information. Most of us are not lawyers; nothing presented in this set
of documents should be considered bonafide legal advice. At the same time, we
do not claim to have a lock on the facts - if you have new evidence to present,
please do so. Your assistance will be of great help to us.
This document is also highly under construction and should not be regarded as
a complete document at this time. Questions listed as ANSWERED are not
final at this time; this simply means that we have a basic answer to the question
rather than a blank page.
If you have any additions/complaints/suggestions, drop either
(email@example.com) a line with your
The Questions : General
- "We need a memo on the issue of DVD as a computer program or data
file. What was the legislative intent behind the DMCA exemptions for
DVDs? Do they apply or was this only intended for 'software'"?
- "DVD region coding and possible legal ramifications. Does this
scheme violate antitrust laws as a cartel organizing a restraint in
trade? Does this scheme violate a European Directive regarding unfair
- "Comprehensive Fair Use Analysis. We need a memo outlining the most
important fair use cases (approx. 35) and discussing how they impact
- "Comprehensive Copyright/First Amendment Analysis. We need a memo
outlining the most relevant copyright cases that have involved First
Amendment defenses and discussing how they impact this case."
- "Reverse Engineering Analysis: We need a memo outlining the legal
cases dealing with reverse engineering and how they apply to this case."
- "Click wrap licenses. a) What is the case law supporting the
requirement for a manifesting of assent to contract? b) Does case law
support the creation of binding agreements through purchase only? c)
what is the impact of "hacking" around a click-wrap on the requirement
for assent to contract?"
- "What is the burden of proof standard regarding the weight of the
evidence needed to prove an initial misappropriation in a trade secret
case? What is the burden of proof (weight) needed to prove
misappropriation by a republisher?"
- "What are case law examples involving the loss of trade secret status
- "What cases have discussed the limitations imposed upon Congress
regarding Copyright? How does the Constitution constrain what Congress
can do in fixing the rules for copyright?"
The Questions: Technical Issues
- "Region Coding. How does region coding prevent playback? What are
the different ways to bypass this technological measure and how easy are
they to accomplish? Are there DVDs that are coded to play in all
- "True or False: It is impossible to fast-forward past commercials or
FBI warnings on DVDs?"
- "What other operating systems are left unsupported by DVDs?"
- "What are other concrete examples are there of occasions in which
reverse engineering has been critical to achieving a technological break
through in an industry? Are there examples of other attempts to prevent
such activity and what was the result?"
- "Top five myths about DeCSS. What are the top five greatest
misunderstandings about the DeCSS technology and why are they wrong?"
Status: Answered; being revised.
- "I'm not sure this is even possible: Can we determine the number of
copies of DeCSS found on Web Sites around the world on the following
dates? 10.31; 11.31; 12.26; 12/28; 1/15; 1/31; 2.29? Please document
all findings. If you can't find the historical figures, can we find
Contributors To This Document
The following individuals have been instrumental in providing hard objective
information for inclusion in these documents: