[ I was at the beach, catching up now ]
> > It is a test of will and power. Kaplan took offense at the widespread
> > attitude that such an act was beyond the power of a judge, that judges not
> > only should not censor thei internet, but that they *could* not censor the
> > internet, that the internet was stronger than the judiciary.
>
> He's welcome to take offense. He's even welcome to take action. But
> in the end, has he been successful? Will he ever be successful?
I agree that it was a poor idea to taunt the judge, but a key point that most
people seem to be missing is that anti-DeCSS has nothing to do with fair use,
practically nothing to do with piracy, but a great deal to do with the
critical but poorly understood first sale doctrine, so the judge's decision
is flatly wrong on fundamental legal principles.
First sale says that once the copyright owner has sold a copy of something,
he has no further claim on it other than to prohibit making further copies.
This is why there's a market in used books and videotapes, why there are
public libraries, why there is a video rental industry, and why you can
import a lower priced foreign edition of a book or CD even if there's a
domestic edition. Publishers hate first sale even more than fair use, and
you often see fatuous complaints about the revenue "lost" to sales of used
books.
CSS is entirely about subverting first sale, since the only useful thing that
the CSS crypto does is to assign each DVD a "region code" so that the DVD can
only be played on players with the same region code. (As has been widely
noted, if you want to pirate a DVD, you just copy the bits, no crypto
needed.) The reason that they use region codes is that movies may already be
on DVD in the US while still in theatres in Europe, or vice versa, and they
want to prevent people from sending DVDs from one place to the other and
undermining theatre revenues. If I were the movie industry, I'd want to
prevent it, too, but if I were a judge interpreting the copyright law, I'd
look to the first sale doctrine and say "tough noogies".
The first sale doctrine is under attack in many ways under the guise of
"digital rights management", attempting to treat material as leased to people
with limited rights, rather than sold with full rights, even though the
transaction is handled as a sale. It's one of the sleaziest ways that crypto
is being used today.
Regards,
John Levine, [EMAIL PROTECTED], Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be, http://iecc.com/johnl, Sewer Commissioner
Finger for PGP key, f'print = 3A 5B D0 3F D9 A0 6A A4 2D AC 1E 9E A6 36 A3 47
