Response to the Briefs DVD & DeCSS6/2/2001; 7:30:47 PM OK, I've read the two briefs now and I'd like to offer these comments:Based on these briefs, EFF is arguing a fundamentally stronger case. The MPAA has the always-difficult task of proving the absolute: DeCSS contains no speech elements whatsoever. While the EFF goes to the opposite extreme to state that DeCSS contains no non-speech elements (which I personally agree with), any compromise position will leave DeCSS as being at least partially speech, which would hurt the MPAA's position.Remember this is a trial about whether the injunction against 2600 was legal, not directly about DeCSS. The MPAA's position is that a link to DeCSS was more-or-less tantamount to the infringement that would occur, and if DeCSS is speech in any way, the First Amendment will begin to kick in and protect 2600. It is still possible for the court to rule that while DeCSS has some speech elements, it is not subject to full protection, but the MPAA would be much better off if it can get the court to buy in on the idea that DeCSS is totally non-speech.I would not call the EFF's position bullet-proof, but I think the flaws are relatively minor. In section B.1, after the lettered paragraphs, the EFF makes reference to the possibility of a system that could limit the number of copies of a DVD made. I think that in the context of a court case that is implicitly discussing a method of circumventing a copy control, that's a bold statement They do have a couple of statements that I would expect even extremely cynical judges to take note of, notably the last section about fair use ("fair use extends to works in whatever form they are offered").However, this is not a trial about DeCSS, it's a trial about whether 2600 violated a court order to not post links to DeCSS on its website, which I previous opined that 2600 is essentially destined to lose. So while the EFF is arguing a very strong case, I can't escape the fact that they seem to be arguing the wrong case. The MPAA lawyers have not violated a court order to not post links to DeCSS on its website, which I previous opined that 2600 is essentially destined to lose. So while the EFF is arguing a very strong case, I can't escape the fact that they seem to be arguing the wrong case. The MPAA lawyers have not missed that point, of course, and their brief comes on quite strong on that point in the beginning, and while I find it distasteful to say, I think they're mostly correct. I find myself agreeing with section III in its entirity, where the MPAA lawyers go over the reasons why the initial injunction is hardly a threat to journalism as a whole.I'm much more interested it the direct answers to the questions, though, and I find the MPAA answers sorely lacking:'Does DeCSS have speech and non-speech elements? No... DeCSS is a device (configured as a program, although it could as easily have been configured as a physical machine, i.e., a "black box") that accomplishes a mechanical task, namely descrambling and decrypting an encrypted, scrambled DVD and copying its content to a hard drive.'There are three major problems with this line of reasoning. First, as I saw someone on Slashdot pointed out, if DeCSS (and by extension, all programs) are merely "devices", then on what grounds do we allow programs to be copyrighted? Either they are "expressions" that can be copyrighted, and thus can carry some sort of First Amendment-protectable information, or they are purely devices which can never be copyrighted, ever, and thus can only be patented. (Of course the MPAA can afford to argue this line of reasoning, as they have no need to worry if a judge were to agree with this. Microsoft, on the other hand, might have something to say about that.Second, while it is true that DeCSS could be accomplished by a physical machine, this is true of all software. All software can be done in hardware; the difference between software and hardware is smaller then a lawyer might guess. For instance, if you have an older Palm Pilot, the OS and the programs that come with the OS are all done entirely in "hardware". Therefore, this argument has no meaning, since it has no distinguishing power between software that can be done in hardware and software that cannot.Third, the point about "copying to a hard drive" is dangerous to take at face value. If DeCSS is used to make a copy, which is then viewed by the owner and promptly erased, is this a crime? It's dangerous to say yes, because such copying happens routinely on the Internet with caching and other such mechanisms. Indeed, my computer has a fully legal DVD player and I can guarentee with reasonable confidence that at some point, contents of the DVD have ended up on my hard drive due to that memory being swapped to the hard drive. In fact, as I sit here, I'm watching Star Trek VI on my computer, and my hard drive light is flashing in perfect sync with the DVD drive's light. It's a pretty good guess that the DVD is essentially being copied directly to the hard drive.

One can profitably make the distinction between deliberately copying to the hard drive and having the system do it, but that's just asking for a clever hacker to straddle the line, just as systems like FreeNet straddle the free-speech line.The rest of the MPAA brief is mostly spent dismissing the questions the court posed about how the First Amendment applies, since the MPAA contends that there is no speech involved at all, so there's little else of value to me there.I think the EFF has put some good material together, and I'm sure we'll see it again when the trial about DeCSS resumes. In the meantime, the only reason I see to think that this particular court process will end in 2600's favor is that the judges were asking these questions at all. If I had to lay money down, I'd say the court will find in favor of the MPAA, that Corley did violate the provisions of the court order, but that their brief will validate (or at least consider) some of the points the EFF is making, and recommend that other courts pay more attention to them as the whole mess wends its way through the court system.

If You Can't Track 'em, Join 'em Music & MP36/1/2001; 9:29:37 PM 'An alliance between three media file-tracking companies makes it possible to monitor, track, contact and shut down the systems of users who engage in illegal activity on the Internet.'BayTSP, Media Enforcer and Copyright.net -- companies that have applications to search for copyrighted materials -- agreed to share their tracking technologies with each other as part of an equity deal that creates a loose federation of companies involved in rights management.'That's pretty clever! Another shot fired in the trackers vs. crackers war.

The music revolution will not be digitized Music & MP36/1/2001; 8:48:49 PM 'The power, then, is consolidated squarely back in the hands of the same record industry executives that held the reins before. Everyone with a good idea that doesn't fit into what the music moguls have already deemed appropriate is out of luck. That personalized radio station will be shut down, that peer-to-peer network will be decimated before it even has a chance to offer a subscription plan, prices for music downloads will be set sky-high, and new music-exchange services will contain only limited catalogs.'Is the system where "If we [RIAA members] do not approve it, it will not happen." is a true statement a system that promotes innovation?This reminds me of my previous comments. Part of their strategy was to make sure that there was no way to comply with the legal requirements. Isn't that sick?

Web Behind Walls
Misc.
6/1/2001; 1:15:27 PM 'At stake is the future and form of the Internet for millions of Americans whose access to the online world comes through the set-top portals of cable television. Instead of the multivaried pathways of the World Wide Web, these users will be provided easy access to a much smaller subset of items and options that reflect the network owner's online programming, as well as the offerings of its content partners. Dubbed "walled gardens" by supporters and skeptics alike, these new "managed-content areas" will therefore offer the illusion of online choice, while leading subscribers down well-worn paths of proprietary content and affiliated programming—in stark contrast to the great diversity of expression the Web seemed to promise in its heyday, way back in, say, 1997....

'For millions of households, therefore, the World Wide Web will be neither worldly nor wide. The real danger, of course, is that the online marketplace of ideas under cable's control will become as encumbered with gatekeepers and tollbooths as the world of cable has become.... That's just too high a price to pay for the speed and simplicity of what amounts to little more than Internet Lite. In the interests of our democracy, broadband cable companies must be held to a higher standard than that....'

Controversial Ruling on Library Filters Free Speech6/1/2001; 1:12:34 PM 'In early 1997, the Minneapolis Public Library began giving its patrons unfettered and unlimited access to the Internet. The library’s First Amendment-inspired policy was intended to provide a needed service to the community. But Wendy Adamson, a reference desk librarian at the library's central branch, said it effectively made her working life a nightmare, and federal officials appear poised to agree with her. 'Acting on complaints from Adamson and other librarians at the city’s central branch library, the Equal Employment Opportunity Commission’s Minneapolis office ruled last week that the library, by exposing its staff to sexually explicit images on unrestricted computer terminals, may have allowed for a hostile work environment. The blockbuster finding, issued on May 23 following an investigation by the agency, came in response to complaints filed a year ago by Adamson and 11 of her colleagues.'An intriguing angle on the issue. Still, one wonders why "filters" are necessarily the answer. While the Internet may have been involved, the activities described in the rest of the article are already illegal... why didn't anybody ever call the police and arrest these men? Problem more-or-less solved. I'd bet a good case could be made for negligence on the part of the librarians for not taking those steps.As usual, the knee-jerk reaction is to blame the new technology, but no Internet filter in the world can prevent a man from masturbating in a public place; that's for law enforcement.

Response to Request for Clarification
DVD & DeCSS
5/31/2001; 12:15:38 PM The responses to the request for clarification from the judges in the 2600 vs. MPAA case are in. You can read the response from 2600 and the response from the MPAA. I recommend reading them side-by-side and comparing the answers, as hopefully the judges will.

Commentary later... I haven't been able to read them yet.

Scott McNealy and FUD on Privacy Privacy from Companies5/29/2001; 7:57:55 PM I'm not normally prone to paranoia, but I'm seriously beginning to wonder about people like Scott McNealy. Mr. McNealy wrote another essay on privacy in the Washington Post. The quote that most raises my ire is this:' I know medical records are a hot button for a lot of people, and I agree they need to be protected. But it would be a mistake to lose sight of the real benefits of sharing information about ourselves. One of the chief benefits, to use a more routine example, is personalized service. In exchange for a little information, you can get an online experience that's more in tune with your interests and needs. I have agreed to let my car company, for instance, track my every move through GPS satellites. Some people might consider that an invasion of privacy, but I find it comforting to know that, should my air bag deploy, they know where I am and can send help.'Seriously, who would consider that a violation of privacy? Nobody cares whether you choose to allow a company to have data. The issue is whether that data can be traded away to another company without asking Scott, or whether that data could be gathered without permission, not whether Scott should or should not share the information if he choses! As this point is central to his thesis, the whole rest of the editorial is pointless.This is the third or fourth person I've seen arguing this point, and I'm beginning to smell a rat. Is there some conspiracy of common cause afoot to spread this FUD about privacy? (Scott would in fact be a special case, 'cause he just has a point to prove about his earlier famous quote, "You have no privacy. Get over it.") Why would anyone think we want to totally abolish giving information to companies? Answers welcomed.

Conspiracies of Common Cause
Glossary
5/29/2001; 7:36:12 PM Another idea I want to write on iRights so I can refer to it later, ''conspiracies of common cause'' occur when groups of people act in such a way that it may lead you to believe there is a conspiracy, when the reality is simply that they share motivation.

(Links lead to a longer explanation, which is the one I intend to link to in later conversations.)

Web form allows people to opt out of data collection Privacy from Companies5/27/2001; 4:59:30 PM 'People seeking to protect their privacy can complete a single Web form to keep major advertising companies from collecting data about their Internet browsing and shopping habits.'Under pressure to protect privacy better, the advertising industry has set up two new Web sites that let computer users refuse to have their personal data collected and profiled when they visit popular commercial Internet sites.'The article does give the website URLs at the bottom: Network Advertising Initiative and Anderson Compliance. The Network Advertising Initiative site seems to be the one with the actual opt-out functionality.I was curious how you are identified to the opt-out program, so I decided to try it with Doubleclick. As I expected, all the opt-out does is set your Doubleclick cookie to the string "OPT_OUT", which means that the opt-out only applys to the current user of the current browser, and if your cookies are ever deleted the opt-out is gone. Not only is the average consumer going to have a difficult time opting out due to lack of knowlege of the process, but even for a savvy computer user like me, it's going to be virtually impossible to stay opted out, since the system is so weak.Frankly, this opt out thing is virtually useless, because even if you intend to opt out, the slightest disruption to your cookie store (changing browsers, changing computers, changing logons, changing profiles), and you are once again not opted out. This doesn't even rate an A for effort; this is as pathetic as possible.

Pioneer cybercrime pact tightens privacy rules
Surveillance and Privacy from Government
5/27/2001; 4:42:33 PM 'Stiff criticism from the EU and pressure groups has prompted drafters of the world's first treaty against cybercrime to tighten provisions protecting privacy online, the final text showed Friday.

'The Council of Europe, a 43-state human rights watchdog, has amended the text to ensure police respect privacy rights when they follow digital trails to fight online crimes such as hacking, spreading viruses, using stolen credit card numbers or defrauding banks.'