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DVDCCA v. Bunner in California Supreme Court

May 30, 2003 by

DVDCCA v. Bunner – the “California DVD case” – was argued yesterday in the California Supreme Court. DVDCCA, which is basically the movie industry, sued Andrew Bunner for re-publishing the DeCSS program on his web site. DeCSS, you may recall, is a program for decrypting DVDs.

A previous case in Federal court, Universal v. Remeirdes (also known as “Universal v. Corley”, the “2600 case”, or the “New York DVD case”), led to a ruling that posting DeCSS violated the Digital Millennium Copyright Act (DMCA). There was no DMCA claim in Bunner; the movie industry argued instead that DeCSS contained their trade secrets, and so was illegal for Bunner to publish.

Bunner lost in the trial court but he won a reversal in the appeals court, with the appeals court ruling that DeCSS was speech and that an injunction against its publication would therefore be an unconstitutional prior restraint on speech.

Wired has a pretty poor story about this (bylined “Reuters”). Better is Lisa Bowman’s story at CNet News.com. Alex McGillivray was there and offers a deeper account of the legal arguments.

As usual in these cases, the plaintiffs’ lawyers offered strained analogies. California Attorney General Bill Lockyer called DeCSS a tool for “breaking, entering, and stealing”, ignoring that DeCSS only allows one to “break into” one’s own property. (The theory that using DeCSS amounts to a break-in was already rejected by a Norwegian court in the Johansen case.)

DVDCCA lawyer Robert Sugarman said something even odder. Bowman’s story quotes Sugarman as telling the court that DeCSS is designed “to allow individuals to steal a trade secret and, by virtue of that, hack into a system that protects the trade secrets of motion picture makers.” This description is wrong on several counts. First, it is at odds with the DVDCCA’s position, which is not that that DeCSS protects their trade secrets, but that it contains their trade secrets. Second, the only things “protected” by DeCSS are the digital versions of the movies, and movies in broad distribution can’t be trade secrets.

In any case, I have never understood why the industry’s basic trade secret argument wasn’t laughed out of court. By the time Bunner got hold of DeCSS and re-published it, it was available at hundreds of places on the Net, and had been available for months. Anybody who cared to know this “trade secret” already knew it, through no fault of Bunner’s. (I filed a declaration to that effect with the original trial court.) The industry never claimed that Bunner did anything illegal to get the “trade secret”; nor did they even prove that anybody else had done anything illegal to get it.

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Texas Super-DMCA Apparently Dead

May 29, 2003 by

Louis Trager at the Washington Internet Daily reports that the Texas Super-DMCA bill appears to be dead, as this year’s legislative session ended without any action on the bill. There is still a small risk that it will be considered in special session, but the governor’s office says he does not intend to call such a special session. The Texas legislature is not scheduled to meet at all in 2004, so the bill appears to be dead there until at least 2005.

The is another significant victory for Super-DMCA opponents, along with the veto of the Colorado bill, and the withdrawal of the Tennessee and Oregon bills by their sponsors.

Trager quotes MPAA Vice President Vans Stevenson as saying that “Time is on our side. We have all the time in the world.”

Apparently MPAA will be patient, in the hope that opponents will tire of the struggle, or maybe in the hope of finding new opportunities to introduce stealth bills. That may be MPAA’s best hope, since the bills have fared poorly wherever open debate on their merits has been allowed.

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Waldo on Standards

May 27, 2003 by

Jim Waldo (a Distinguished Engineer at Sun) has written two provocative blog entries about standardization. He argues that technical standards are a good idea when their purpose is to codify existing practice in the industry, but that it’s counterproductive for a standards group to try to invent new technology. I think he’s right.

When standards groups try to invent technology, they tend to do poorly, for two reasons. First, committees generally do a lousy job of designing anything; the best designs spring from the mind of a single person, or from a small group of like-minded people with a clear common goal in mind. Second, standards groups can easily degenerate into political wrangling which, regardless of their pretextual substance, really amount to a battle over which company’s product plans will be anointed as the standard – a failure mode that is much less likely when the only goal is to codify existing, widespread practices.

The worst case of all, of course, is when lawyers try to invent technology, by codifying their regulatory schemes as “standards.”

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E-Voting Bill Introduced

May 23, 2003 by

My Congressman, Rep. Rush Holt, has introduced an important e-voting bill, H.R. 2239. The bill would address the serious concerns raised by a broad coalition of computer scientists (including me) about the security and trustworthiness of electronic voting systems.

The bill would do three main things. First, it would require that voting systems generate a paper trail that the voter can verify at the time he/she votes. Second, it would require the software used in voting machines to be open for public inspection. Third, it would institute random, surprise recounts in 0.5% of jurisdictions, as a quality control measure. The bill also contains safeguards to ensure that disabled voters can cast their votes.

The text of the bill is not yet on the House’s web site; I’ll post a link here when it becomes available. I have seen a preview copy of the bill, and I think it does an excellent job of ensuring that our transition to e-voting maintains the trustworthiness of our elections. I support it strongly, and I hope you will do so too.

UPDATE(10:55 AM, May 27): The bill’s text is now available.

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Colorado Governor Vetoes Super-DMCA

May 22, 2003 by

Colorado governor Bill Owens has taken the Rocky Mountain News’ advice and vetoed his state’s Super-DMCA bill. Linda Seebach writes:

In his veto message [Owens] said the bill “could also stifle legal activity by entities all along the high tech spectrum, from manufacturers of communication parts to sellers of communication services.”

He urges the legislature, if it returns to this topic in the next session, “to be more careful in drafting a bill that adds protections that are rightfully needed, but does not paint a broad brush stroke where only a tight line is needed.”

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