the value of free speech as it relates to DeCSS

posted: 2003-08-25 17:45:53 perma-link, RSS comments feed

It seems likely that the article misinterpreted the decision. The first line gives a more probable interpretation of what the Court actually said (which is in line with the first decision on this):
The California Supreme Court ruled Monday that a Web publisher could be barred from posting DVD-copying code online without infringing on his free speech rights.
It seems to me that the Courst felt that free speech was not at issue. The article quotes the court:
"Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry's efforts to limit unauthorized copying of movies on DVDs," the court wrote. "We do not see how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA's trade secrets."
So the Court is creating a distinction between speech and 'information.' And it is saying that government can regulate 'information' to the hilt. This is defining the concept of speech down rather than putting trade secret law over free speech. I still hope that SCOTUS slams them hard on this one.

"The movie industry's right to prevent fair use of DVDs outranks our right to know when we are being sold flawed cryptography?
CSS does not prevent people from copying CDs illegally, what it does prevent is perfectly legal uses of DVDs such as playing them in countries other than that in which they were sold, and playing them on operating systems for which CSS decoders might not exist. Now our government wants to compromize the 1st amendment to defend their right to stop us from doing something that our laws specifically entitle us to do?

All laws which seek to limit two or more people's ability to willingly share ideas and information will ultimately be seen as being just as rediculous as witch burning or the Spanish Inquisition. Our right to effectively regulate our governments, which requires that we have free and open access to knowledge, ideas, and information, is being sold off based on the wrong-headed dogma that treating everything as "property" will improve efficiency.

Having said all that, I think we should welcome this ruling - since it is perhaps one of the clearest examples of how the 1st Amendment is being corroded by laws which increasingly serve only to stifle innovation and prop up monopolies to the detriment of science and the useful arts.
--

"
While I agree with just about everybody here that reverse-engineering shouldn't be illegal, and you should be able to publish DeCSS, I just want to watch the DVD I bought legally for crying out loud, etc --

Let's keep the first amendment out of this, okay? DeCSS is code. It's not free expression, it's not an Art form. It's simply a useful tool that let's you watch DVDs on your linux box. It should be legal to distribute it, not because of free speech, but because you simply should be allowed to write code that let's you watch movies.

Rather than trying to shove the square peg of technology into the round hole of the 1st amendment, we should be addressing current technology laws. In a way, not calling shenanigans on the DMCA every chance you get implies your acceptance of it. If you fix the DeCSS problem with 1st amendment logic, you've fixed the DeCSS problem. But if you fix it by repealing the DMCA, you've fixed a whole lot of other problems as well.

"I don't understand why being philosophically against software patents is always equated with socialism, and that patents are the ultimate expression of capitalism. I don't agree.

Patents in general are entirely anti-capitalistic devices. Their primary purpose is to inhibit competition, by making it illegal to compete. They enforce monopolies at best, and at their worst totally destroy entire fields of endeavor due to their mutually-assured destruction effect. They are not just about protecting theft of trade secrets, dumpster diving, or espionoge; but about controlling both thought and activity. If I completely and totally independently discover the same trivial algorithm, but you patented it somehow I'm breaking the law...I certainly didn't steal anything. Is anybody else worried about how IBM is dealing with SCO? I'll be as glad as anyone when IBM flattens them, but using their patent treasure chest to do so really bothers me.

And it also drives me crazy when I hear companies say they obtain patents for defense only. Patents by their very nature always offensive, they prevent others from independently working even if they never harm you or your market in any way and you don't sue them. That's agression plain and simple. If you want a defense then publish, don't patent (go to ip.com's Prior Art Database [ip.com] as an example of this approach).

And another misinformed justification is that patents are only dangerous if you try to make money with the patented idea. That is so wrong, go read the actual patent law! (yes it is very long, but still more readable than most patents). Even if you "practice" a patented idea in your home for your own amusement you are still breaking the law. You may get by with it, just like speeding, but patents intrude on everybody's rights.

I had an employer approach me once with the idea of patenting some software I wrote for them, and I took it as a serious ethical threat, and I told them that too. But when that happens, you tend to be very careful about how you apply your talent afterwards...being careful not to invent anything new, which I'm sure has resulted in some less than optimal solutions. But again, this is not socialist thinking. My company makes money from selling software I write, and I give them ownership over it in exchange for a salary, and I'm not distributing this code to the world. But likewise, I'm definitely against preventing somebody else from independently inventing the same software.

And the only reasonable argument for patents (as eliquently stated in the US Consitution) is to discourage the hording of information, so that others may build upon and progress technology. But look at how the patent system really works to completely subvert and prevent that one goal: submarine patents (those that through legal trickery stay in a filed state for perhaps decades without ever being divuldged). Patent laywers make sure that patents are entirely unreadable...even most lawyers who don't specialize in patent law are completely inept at reading them, let alone inventors and technologists who supposedly should be benefiting from them. Also it's almost impossible to ever find anything or make any sense of all that knowledge as its locked up so tight that it's completely worthless for anything but legal agression. The patent office should operate like a well indexed library of human knowledge, but instead it acts like a black hole locking away information so it is illegal to use.

I for one mostly agree with the capitalistic society, not the socialistic view. But I'm still extremely anti-patent, especially for non-physicial inventions of thought and expression. Patents are an extreme offense to humankind, captialism is not.

" It's not about open source, although there is a similarity in the principle of open and free exchange of ideas.

Patents are government grants to build a business around a specific invention. There is a general issue here, namely that all invention comes from a communual process, exchange and refinement of ideas over time, and the granting of "exclusive" rights is by its very nature an act that ignores the reality of the process in order to create a new reality that favours certain groups over others.

However, we tend to accept that patents are one way of rewarding intellectual endeavour. Why then, are they bad?

There are many technical issues that make patents complex to grant: knowledge of the area in question, searching prior art, preparing lengthy documentation. This means that patents are expensive - in the EU, for instance, 10,000 Euro is the starting price, before you start looking at defending a patent.

The huge price tag puts patents firmly out of the reach of smaller groups and individuals who are not already wealthly. It is ironic, perhaps that these are also the groups and individuals who work the hardest to create new products and ideas, since they have the most to gain.

It is larger groups that are able to assemble large patent portfolios, therefore. Presumably these are then used to protect and reward innovation? No, most patents go unused in the direct sense, and become instead instruments for patent negotiations.

What is this? It is when a small company with a patent discovers that a larger company is infringing. It raises the question, and the large company discovers a handful of its own patents - previously ignored - that the smaller company is also infringing. The innovater finds that the precious patent is not only worthless, but has landed them in a situation where they may go bankrupt or have to sell their products to survive.

Large companies seek patents principally for this reason: to protect their existing markets and businesses against innovators.

The role of legislators is clear: their mandate, sponsored by big business, is to make this process as easy as possible.

Software patents take this to a new dimension. Software development is - unlike most prodyct creation - a process of almost pure invention. It is almost impossible to develop a complex software product without finding and solving many problems that others have also solved.

Patents are already biased against innovation, but software patents can create insurmountable obstacles. A business with the cash and the lawyers can find hundreds, perhaps thousands of "new" inventions in any complex software product. Needless to say, most or all of these are multiple re-inventions, but have not been previously patented, so are legally open to patent.

Software development, like all creative processes, relies on a pure and unbroken exchange of ideas and techniques across space and time. Software patents pretend that this exchange does not happen, and worse, they make the exchange impossible, and sometimes illegal.

At the extreme, software patents spell the end of not just open source, but the freedom of individuals to create new software. When every software invention has been patented, writing unauthorized code will become a criminal offense.

Large business loves this scenario. They pretend that software patents are essential to protect their "innovation" and "research". But this is a lie, as any honest observer can see.

The EU is, like all governments, manipulated by lobbyists, and the person who pays for the music will choose the dance. Software patents will come into law in the EU, there is no doubt about this.

The realisation that software patents (and all patents, indeed) are tools for monopolists will only come when the West has lost most of its competitive edge. I only hope that India and China realise - from self-interest - that they are being given a silver plate with a blank cheque, marked "please profit, we are in the process of strangling our nascent software businesses".

---

Comments

Post a comment

Your name:

Comment: