<nettime> DVD-CSS analysis + remarks

[t byfield <tbyfield@panix.com>]

[the legal analyses below may be very US-centric, but the issue
 --a lawsuit filed in California by the DVD Copy Control Associ-
 ation, Inc., against defendents scattered throughout the US as 
 well as in AU, FR, DK, DE, UK, FU, NL, and IT--might encourage
 people to think twice about dismissing it as 'more US rubbish.' 
 it is that; but it still has serious repercussions. since this
 case crosses so many borders, enforcing any ruling would be al-
 most impossible, at least in the terms that most people now un-
 derstand 'enforcement' to mean. but the 'intellectual property'
 lobbies aren't about to call it quits that fast, so it's worth
 thinking about new mechanisms for enforcing rulings across bor-
 ders. one obvious mechanism is the ability to shut down access 
 to any domain that fails to comply with a court order. this is
 what ICANN's 'uniform dispute resolution policy' does, because
 it's not limited to domain/trademark issues: it includes vague,
 open-ended language about suspending a domain used for any 'il-
 legal' purpose. and that doesn't merely mean breaking an exist-
 ing rule--it can mean not complying with an interim/ad hoc rul-
 ing like the order in the Etoys/etoy case. ICANN has two major
 groups of domain registrars to deal with, and they're very dif-
 ferent. on the one hand, there are the commercial/'competitive'
 registrars that handle global top-level domains ('gTLDs'); any
 gTLD registrar that disregards ICANN's 'uniform dispute resolu-
 tion policy' can have its accreditation yanked and lose access
 to the registration database. on the other hand, there are the
 registrars that handle country-code domains (ccTLDs); it'll be
 much harder for ICANN to control them, because they tend to be
 state monopolies. the 'intellectual property' lobbies were, of
 course, very supportive of ICANN's efforts to pass this policy,
 for obvious reasons. anyway, now that these enforcement mechan-
 isms are in place, the kind of actions that we've witnessed in
 the past few weeks--Etoys/etoy, Leonardo and now this--will be-
 come *much* more common. some will be handled very publicly in
 order to make a point; others will be handled very quietly, be-
 cause the main goal is just to solve a specific 'problem.' for
 example, the first case filed under the ICANN policy was given
 to the World Intellectual Property Organization (WIPO) for 'ar-
 bitration,' because WIPO was the first 'dispute resolution pro-
 vider' accredited by ICANN. under the rules that ICANN imposed
 on WIPO, WIPO is not allowed to reveal *any* information about
 the dispute; given how pwerful etoy's public campaign has been,
 it's no mystery why the 'intellectual property' lobbies wanted
 these disputes to be settled in secret. (WIPO has said it'd be
 happy to release basic details about the disputes.) so, please
 think about whether you want to see domain names turned into a
 'single chokepoint' for regulating resources on the net; or if
 you don't want that, think about what you can do to stop it in
 its tracks. *it is happening now* and *it will continue unless 
 people start organizing against it*. cheers, t]


<http://cryptome.org/dvd-comments.htm>

   28 December 1999
   
   See also Slashdot's massive thread:
   http://slashdot.org/articles/99/12/27/194216.shtml
     _________________________________________________________________
   
   [Thanks to anonymous.]
   
   Date: Tue, 28 Dec 1999 10:41:46 -0500
   To: John Young <jya@pipeline.com>
   Subject: CSS Petard
   
   I note that the lawsuits from the motion picture industry are going
   after web sites where only LINKS to the CSS information is located.
   
   I am curious about the lawyer's attack on reverse engineering per the
   new digital copyright law. For example, if you posted the links but
   protected them using ROT-13, wouldn't the lawyers be unable to decrypt
   them without "reverse engineering" your copyrighted web page, thereby
   providing evidence of their own violation the law they seek to enforce
   on others?
   
   Secondly, one of the CSS decryption keys was provided by the
   manufacturer in a totally unencrypted form, requiring no "decryption
   hacking" whatsoever. Are we to understand that reading literal,
   non-motion picture data directly from a DVD and telling others those
   few bytes, or using them to decode copyrighted content, is now illegal
   or a tort?
   
   If so, then a copyrighted web page with encrypted links to CSS
   information could provide the unencrypted decryption key on the
   copyrighted web page itself, couldn't it? And if the lawyers use that
   unencrypted key to read the data you have there, they would be
   providing evidence of their own reverse engineering and copyright
   violation, wouldn't they?
   
   If you provide the unencrypted key thusly:
"LAWYERSBCDFGHIJKMNOPQTUVXZ"

   and then you have:
"CQQL://VVV.XPPDJSK.XKI"

   they wouldn't violate your copyright and reverse engineer that,
   discovering that your algorithm of "monoalphabetic substitution using
   ordered English alphabet with key=LAWYERS; minus one position",
   discovering that the plaintext is "http://www.cssinfo.com", would
   they? [non-existent URL, as far as I know.]
   
   Of course, providing a link to their legal filing, which lists the
   URLs of those they allege to be posting the URLs of the CSS
   information, would be legitimate, wouldn't it?
   
   If not, since their public legal filing lists the URLs that are links
   to the CSS information, or to the CSS information directly, aren't
   they violating the law and equity themselves for which they seek legal
   remedy?
   
     "For 'tis the sport to have the engineer
     Hoisted with his own petard."
     
     Hamlet, Act 3, Scene 4.
     _________________________________________________________________
   
   Date: Tue, 28 Dec 1999 11:05:39 -0500
   From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
   Subject: The DVD litigation
   To: CYBERIA-L@LISTSERV.AOL.COM
   
   I sent the following message to Chris DiBona
   <http://www.dibona.com/social/dvd/index.shtml>, following Michael
   Sims's suggestion.
   
   It seems to me that, if plaintiff does not abandon its claims, this
   could become an extremely important precedent.  Has EFF taken any
   action so far?  Is there any chance of getting the ACLU interested?
   
   --
   
   Peter D. Junger--Case Western Reserve University Law
   School--Cleveland, OH
   EMAIL: junger@samsara.law.cwru.edu    URL:
   http://samsara.law.cwru.edu
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
   
   ------- Forwarded Message
   
   Date: Tue, 28 Dec 1999 10:34:14 -0500
   To: chris@dibona.com
   From: junger@samsara.law.cwru.edu
   Subject: DVD litigation
   
   Just a couple of quick points.
   
   First, a problem.  Those who posted the source (or other) code of the
   encryption program may---at least in theory---have violated the Export
   Administration Regulations forbidding the export of encryption
   software without a license, if the posters were in the United States.
   On the other hand posting links to a foreign site that has the code is
   not a violation according to a ruling that my lawyers obtained for me
   that is on my web site.  (The web site is
   <http://samsara.law.cwru.edu/>; the materials relating to my case
   challenging the export regulations are at
   <http://samsara.law.cwru.edu/jvd/>.  The web pages are not up to date,
   but there should be enough information there to get you started.)
   
   Because of the Bernstein case which is now pending in the 9th Circuit
   the status those export regulations, at least in your circuit, would
   seem to be in limbo.  I doubt that the Department of Commerce or the
   Justice Department would want to challenge anyone who posted the DVD
   code right now, especially when they are revising the regulations so
   as, or so they seem to claim, to make the posting of open source code
   OK.  Still I, because I am the plaintiff in a case challenging those
   export regulations, that is now pending before the 6th Circuit, don't
   feel that I should post the code, though I will post a link to some
   foreign site where the code is available.
   
   Second, an argument.  For the court to enjoin the publication of the
   source code of the DVD program would be a violation of the First
   Amendment.  Although the 9th Circuit has withdrawn its opinion in
   Bernstein, there is still the District Court's holding that source
   code is speech protected by the First Amendment.  There is also quite
   a bit of discussion of this point in the archives of a list that I
   maintain---now gone inactive---at <http://samsara.law.cwru.edu>.
   
   Third, another argument.  The plaintiffs rely on their licensing
   agreement's ``no reverse engineering'' clause to claim that their no
   longer secret algorithm should be protected as a secret.  The claim
   that such a clause is enforceable is extremely dubious under U.S. law,
   especially as it conflicts with the federal copyright act, and
   especially when it is applied to third parties, as appears to be the
   case here.  Since the original disclosure of the former secret took
   place in Denmark or Norway or wherever, it would seem that the
   plaintiff will have to prove that the disclosure was not ``legal''
   under the laws of that foreign jurisdiction.
   
   This is pretty much off the top of my head, but I wanted to get my
   thoughts to you promptly.  If you have any questions about them,
   please let me know.
   
   Thank you for stepping in and helping with this matter.  If the
   plaintiff really continues to push the issues it could turn into an
   extremely important case on the free speech and intellectual property
   status of open software, in particular, and of any publication in
   general.  And the idea that they can get an injunction against links
   to other sites is all by itself an extremely important issue.
   
   Ciao,
   
   Peter
   
   - --
   
   Peter D. Junger--Case Western Reserve University Law
   School--Cleveland, OH
   EMAIL: junger@samsara.law.cwru.edu    URL:
   http://samsara.law.cwru.edu
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
   
   ------- End of Forwarded Message
     _________________________________________________________________
   
   Date: Tue, 28 Dec 1999 09:02:36 -0800
   From: "Carl M. Kadie" <kadie@EFF.ORG>
   Subject: Re: DVD encryption
   To: CYBERIA-L@LISTSERV.AOL.COM
   
   So, according the complaint,
   
         The information should be banned.
         Links to the information should be banned.
   
   Does the complaint say if
   
         Links to links to the information should be banned?
   
   If so, then the complaint itself should be banned
   
       (as should this note and any injunction the judge issues that
   mentions the URLs).
   
   >           Doe
   >           Defendant [...]
   >                           quintessenzs.at/q/mirrors.html [...]
   >                           www.ceraton.com/decss/ [...]
   >
   slashdot.org/articles/99/11/09/1342207.shtml
   [...]
   >                           cryptome.org/dvd-css.htm [...]
   >                           ftp://dvd:dvd@206.98.63.136/ [...]
   >                           www.deja.com/getdoc.xp?AN=547600297 [...]
   
   - Carl

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