 September 2000
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Studios, Hacker Mag Await Judge's Ruling On DVD Crack By Steven Bonisteel 
Newsbytes - Hollywood studios and free-speech advocates
engaged in a high-profile legal battle over software capable of
unscrambling copyright-protected DVDs have little to do now but
wait for a ruling in the case from a federal court in New York.
US District Court Judge Lewis Kaplan received final written arguments Tuesday from lawyers representing eight motion picture studios and from the defense team backing hacker publication 2600 Magazine and its publisher, Eric Corley. The studios said Corley (who likes to go by the name Emmanuel Goldstein) and his magazine contravened the Digital Millennium Copyright Act (DMCA) when 2600's Web site mirrored download pages for DVD-cracking software known as DeCSS. Judge Kaplan has to decide if helping to distribute software capable of decrypting the DVD industry's Content Scrambling System (CSS) controls amounts to copyright infringement. That's a decision many observers have predicted Kaplan will make quickly - perhaps as early as today. The Hollywood studios, marshaled by the Motion Picture Association of American (MPAA), said DeCSS is being used by individuals who pirate DVD movies on the Internet. In addition, they argue that only DVD technology licensed by the industry-backed DVD Copy Control Association should be allowed to access content scrambled using CSS. The DMCA, they said, makes it illegal to circumvent copy-prevention technologies such as encryption. Corley's defense team, backed by online civil liberties organization the Electronic Frontier Foundation (EFF), countered that software programs such as DeCSS are creations that deserve the same First Amendment protections afforded other forms of expression. Besides, they said, the MPAA wasn't able to identify with certainty any movies exchanged online that were originally decrypted using DeCSS. After testimony in the case wrapped up July 25, Judge Kaplan hinted in court that few of his thoughts on the issues had changes since he granted a January preliminary injunction barring 2600 from posting DeCSS on its Web site. However, he conceded that he was impressed by defense witness David Touretzky, a computer science professor at Carnegie Mellon University in Pittsburgh, who described how programmers frequently communicate using source code, pseudo-code, plain language and diagrams - all of which could detail the cracking of CSS encryption. A ruling in favor of the movie studios "would have a chilling effect on my ability as a computer scientist to express myself," Touretzky said. LSD may be illegal, he pointed out by way of example, but publishing its chemical formula is not. The judge also directed the lawyers to use their final briefs to argue whether a permanent injunction against Corley and 2600 Magazine will be effective at all, considering that DeCSS is widely available elsewhere, and is not even the only tool with which to make unencrypted copies of DVD movies. In its brief, the EFF reiterated its position that the DMCA itself is flawed. "One part says that it doesn't affect free speech, the press, or fair use; other parts appear to outlaw the publication of tools for these purposes," the EFF lawyers wrote. The studios said the DMCA, passed in 1998, makes it illegal for anyone to provide technology capable of circumventing copyright controls. But the EFF argued that, if software can be protected by the First Amendment, then it would be unconstitutional for the DMCA to prohibit the development of code capable of doing just that. In the MPAA response, lawyers targeted Touretzky's testimony on the issue, saying: "... his argument would establish that a house key is speech as well (as it communicates information to tumblers, which could as well be communicated to humans in various other languages or ways) - a conclusion that may be a tour de force but would not make house keys eligible for First Amendment protection." "The law does not treat instructions to machines in the same way as it treats political or academic discussions of those instructions, just as it distinguishes between illicit dealing in firearms and literary discussion of committing a crime," the MPAA lawyers wrote. "No matter how clever one may be in converting code to English or translating it into any other language, DeCSS itself (whether as an executable utility or in source code) is still just a set of unscrambling instructions to a machine, as inexpressive as the numeric combination to the locks to a bank vault." The EFF argued that the MPAA's lawsuit is not really about the pirating of movies, but is instead about the motion picture industry maintaining a monopoly over access to DVD technology, controlling who may manufacture DVD recording and reading hardware and software. Banning DeCSS won't stop DVD piracy, the EFF argued, because DeCSS - or any other decryption tool - isn't required to make copies of DVDs that can be sold to anyone with commercially available DVD players. In addition, it said, because there are other tools capable of making unencrypted copies, it may be impossible to determine what share of pirated movies on the Internet can be traced back to DeCSS. "Given all the ways that a DVD can be pirated without DeCSS ... there can be no certainty that plaintiffs were injured by DeCSS," it wrote. "In January, when the court granted a preliminary injunction, the plaintiffs painted defendants as scofflaws, hawking burglar tools that would smash honest businesses to their knees," the EFF team wrote. "The ... facts tell the opposite story. The authors of these tools are honest, thoughtful, and talented people, doing world- class, cutting-edge computer programming." The Electronic Frontier Foundation can be found online at: http://www.eff.org/ . 2600 Magazine is at: http://www.2600.org/ . The MPAA is at: http://www.mpaa.org/ . The DVD Copy Control Association is at: http://www.dvdcca.org/ AOL Thus Far Neutral On "Gnutella Browser" Aimster By Kevin Featherly Newsbytes - Aimster, a Napster-like program that piggybacks on America Online's Instant Messaging protocol to facilitate Internet file-swapping, has attracted the attention of the world's largest Internet service provider. And AOL thus far is responding with thunderous neutrality. "We are aware of the program," said Andrew Weinstein, an AOL spokesman. "And we are currently looking into it." Weinstein wouldn't elaborate to say whether that meant AOL is, for instance, looking into Aimster with the idea of purchasing it, or of taking it to court. "We're looking into it, period," he said. "That's the quote we have right now." Ironically, AOL shut down the MP3-searching feature on its WinAMP player, because it could not distinguish between legitimate downloads and illegal file-swaps of copyrighted songs. Still, if litigation is on AOL's mind, Aimster is not worried. John Deep, an Aimster spokesman who talked with Newsbytes, said the 14-employee, Troy, N.Y., company feels completely insulated from lawsuits that have plagued others services like Napster and MyMP3.com. Those companies, which have allowed users to engage in either music file swapping or "file shifting," have come under legal fire after raising the hackles of the record and film industries. That's not a problem for Aimster, insists Deep. "There's nobody to target here," he said. "You sure can't target us, because we're just a browser." In fact, by some measures, Aimster could be the music industry's, the film industry's and the software manufacturing industry's worst nightmare come to life. Some critics, notably new media professor Steve Jones at the University of Illinois - Chicago, have contended that the temporary stay of injunction allowing Napster to go on operating for now is a blessing in disguise for harder-to-stop peer-to-peer services like Freenet and Gnutella, which do not rely on central servers as does Napster. Jones said that those services are designed for the true-geek set, people who know how to use Gnutella software to turn their computers into servers by accessing Internet protocol addresses numerically, rather than through uniform resource locators (URLs) in Web browsers. That tricky skill has held the Gnutellas back from mass acceptance, he said. Aimster's Deep frankly agrees with the assessment, acknowledging that Aimster has been in a rush for months to get its service out to the public before Napster is permanently put out of business. He describes Aimster as a "Gnutella browser" - an interface for the masses that allows users to scour the contents of other people's hard drives directly, without the intervention of central, Napster-styled servers. In other words, it represents easy-to-use peer-to-peer communications, the thing that perhaps scares intellectual property owners the most. "Aimster is a Gnutella browser, and there are maybe a couple of million Gnutella servers now all around the world," Deep said. "And these browsers understand how to render that stuff. This is totally for the mainstream. It's Gnutella for everybody; we've stripped the browser away from it and said, let's just make it really cool to look at, first of all; total eye candy. And then make it really easy to use and very fast in the way it responds - just like Netscape did. We're just kind of following the old Netscape model." Such a service could be impossible to stop, an idea Aimster implictly acknowledges on its Web site. "Don't put Lars on your buddy list," the site says, a wry reference to the struggle of Napster-fighting heavy metal band Metallica and the band's drummer and mouthpiece, Lars Ulrich. The service piggybacks on AOL's Instant Messenger by interpreting that service's communications protocol, and co-opting it. When Aimster is downloaded, it checks the host computer to detect the presence of AIM software. If it is there, the program automatically integrates and attaches the program's functionality, making itself available to any other machines that are included on the host user's AOL-IM buddy list. If the computer has Gnutella on board, Deep said, it can be configured to scoop files out of all the computers on the Gnutella network, retrieving everything from photo images to music files to entire software programs - all for free. "God knows, it is everything," Deep said. "It is music, but it's movies - it's independent moviemakers who want to get the movies out there to their public. It's everything." Deep said that the company hopes to make Aimster an open-source platform capable of making other messaging programs such as ICQ available to Aimster users. The program is free for download now, and will remain so, Deep said. The money will come later, he suggests. "We think there is a real value in it," he said. "The network is going to become valuable to all these major interests that have consumer affinity networks of their own. They require bringing new people into the network and, more importantly, the need to retain the people that they have. This should be the most effective tool to meet both of those goals. You should be able to drive people into networks at a much lower cost and keep people loyal to the network for much lower costs." So confident is Deep of Aimster's business model, that he expects some day Aimster users will themselves be paid, just for using the service. Though not a supporter of copyright-infriging programs like Napster, analyst Jim Penhune, the director of media and entertainment strategies at the Yankee Group, said the Aimster concept is intriguing. And he agrees it may represent a serious threat to the music industry, among others. "They can stop one particular company (like Napster) in this space," Penhune said. "But ... the alternatives that are not relying on one central server or clearinghouse are going be that much harder to pinpoint and target." The analyst agreed with the Jones thesis that other companies are scurrying to make Gnutella-like peer-to-peer operations usable to the masses. "I think these guys are all operating on this hurry-up timeframe right now, in the short window they have before the stay is, I think, eventually re-imposed on Napster," Penhune said. "I think the music industry doesn't expect that it is going to be able to eliminate the practice of illegally duplicating or file-sharing copyrighted material on the Internet. What they're most concerned about with Napster is that they don't want people founding publicly held businesses on that premise." However, Penhune also suggested that as more companies pop up, each carrying with it the ability to link users to all the free stuff the Internet has to offer, their sheer numbers will overwhelm the public. There will be no standout success like Napster once Napster is gone, he said, the illegal file-sharing will once again be pushed back to the margins of popular Internet use. "It will be interesting to see how those business models play out," Penhune said. Since Aimster was first announced on Tuesday, Deep said, there have been more than 10,000 downloads of the software. Aimster is on the Web at http://www.aimster.com/ Ticketmaster Gets Setback In "Deep-Linking" Suit By Steven Bonisteel Newsbytes - Ticketmaster Online-Citysearch Inc. [NASDAQ:TMCS] said it has failed again in an attempt to obtain a preliminary injunction preventing another Web site from "deep linking" into its pages while a lawsuit over the issue unfolds in a California federal court. This is the second time US District Court Judge Harry Hupp has rebuffed the company's attempt to keep Tickets.com, an aggregator of online information about entertainment and sporting events, from probing its database. However, the high-profile case hasn't gone entirely Tickets.com's way either. In March, Hupp rejected Tickets.com's motions to have the case dismissed outright, giving Ticketmaster the green light to proceed on half of 10 claims made in the suit, including copyright infringement, unfair competition and reverse passing off, false advertising, state unfair business practices and interference with business advantage. The judge also gave Ticketmaster permission to take another kick at the can by rewording four of the claims he rejected. The company followed up in April on two of those, filing new arguments for claims related to trespass and breach of contract. While the case could be headed to trial without the preliminary injunction Ticketmaster was looking for, the company says it will soldier on. "This was only one motion in the course of a very long and complex lawsuit," Ticketmaster lawyer Brad Serwin said in a statement. "We continue to believe that Tickets.com's spidering of our Web site and deep linking without authorization are violations of our terms of use, constitute an unlawful trespass on our personal property and result in Tickets.com unfairly using our intellectual property to build its business." Debate over the case is complicated by differences of opinion over just what "deep linking" actually means. By some definitions, a deep link is simply a Web-page reference which transports someone clicking on the link to a location somewhere other than the target site's "home" page. Some Web publishers have objected to such links, but no US court has ever found the need to put an end to what many say is part of the foundation of the Web. Indeed, in his first denial of a preliminary injunction in the Ticketmaster case, Judge Hupp said he didn't think that a mere hyperlink could constitute copyright infringement - though he didn't rule out taking the effects of linking into consideration when weighing Ticketmaster's other claims. But the Ticketmaster case is more complex than just hyperlinks, wherever they may point. Ticketmaster claims that Tickets.com uses search-engine-like "spider" technology to extract information about items for sale at Ticketmaster and then presents that data on its own site, imbedded in Tickets.com page compositions. On that score, Ticketmaster says, its case is a lot like the legal battle online auction site eBay.com [NASDAQ:EBAY] is waging with auction aggregator Bidder's Edge Inc. - a case in which eBay handily bagged a pre-trial injunction from another federal judge. For now, that ruling has forced Bidder's Edge to stop spidering and extracting data from the eBay database. Instead, the company currently connects its users with eBay auctions by launching searches which open a new browser window and display the results on the eBay site itself. Ironically, the current Bidder's Edge workaround matches definitions of innocuous forms of "deep linking." Ticketmaster's Serwin said Judge Hupp's refusal to again grant a preliminary injunction "is in conflict with the recent decision in the eBay case.... We are nevertheless encouraged by the judge's comments concerning the substance of our claims. We expect to prevail in this action at the summary judgment phase or at trial." In his March ruling, Hupp said ordinary linking - even deep linking - couldn't contravene copyright laws because no copying was involved. He said he also had doubts as to whether extracting information on events and ticket availability from the Ticketmaster site and incorporating it on Tickets.com pages was an infringement, since it could be seen as simply reporting on factual data. "In addition," he ruled at the time, "it is hard to see how entering a publicly available Web site could be called a trespass, since all are invited to enter." The trespass claim - one with which eBay appears to be making headway in its own case - was one Ticketmaster was eager to restate in its amended complaint. In its case, eBay has argued that its Web site is not, in fact, open to all when it comes to spiders, since its terms of use prohibit such queries and it has instituted standard protocols - such as directives in "robots.txt" files on its servers - ordering search-engine spiders to stay away. On the Ticketmaster site, a robots.txt file now indicates spidering is not allowed by any search engine, and a prominent warning atop the home page reads: "Use of this site is subject to the express terms and conditions. By continuing past this page, you expressly agree to be bound by those terms and conditions which prohibit commercial use of this site." Tickets.com can be found online at: http://www.tickets.com/ Ticketmaster is at: http://www.ticketmaster.com/ Adobe, Macromedia In Legal Fracas Over Software Feature By Adam Creed Newsbytes - It's a movable, tabbed window that resides on the desktop of software used in digital design, but Adobe [NASDAQ:ADBE] says only it can legally use this feature in its software, and so the lawyers have been called in to prevent rival Macromedia from using the same feature in its user interface. Adobe says Macromedia is infringing its US Patent No. 5,546,528 - its "invention" - and wants the company to stop. Macromedia says simply that the patent is "invalid and unenforceable" and has not violated it. The dispute dates back to 1996, when Adobe first notified Macromedia over the feature. A reminder in 1999 was met with the same response by Macromedia - it denied the claims. On Thursday, Adobe filed the lawsuit in the U.S. District Court of Delaware against Macromedia, alleging infringement of U.S. Patent No. 5,546,528 which covers Adobe's "tabbed palette patent." Bruce Chizen, Adobe's president, said that his company was not prepared to be "the R&D department for its competitors." You can view the feature that was awarded this technology patent on the Web, at http://www.adobefacts.com/ |
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