From: Dave Winer (email@example.com)
Date: Mon Aug 21 2000 - 19:43:12 PDT
ANALYSIS OF THE DECISION AGAINST 2600
Facing a major lawsuit is a lot like facing a major illness. It's expensive,
time consuming, and there are a million other ways you'd like to be spending
your time. But if you don't devote all of your attention to fighting it,
your continued existence is profoundly endangered.
That's how this thing has been affecting us since it started back in
January. It's greatly interfered with the magazine, production of our film,
and organization of our conference. But it was necessary - essential, in
fact - and most people seem to understand why.
It's a real shame Judge Kaplan wasn't one of those people.
From the first teleconferenced hearing to the pretrial motions all the way
through the trial, I was amazed by what appeared to be unfettered hostility
towards us and the many points we attempted to make. I don't see how anyone
looking through the transcripts would have any difficulty seeing this. But
we all held out hope that this wouldn't be present in the decision.
Were we ever wrong.
See, in my mind, this case has always been about common sense. Someone
cracked someone else's badly protected encryption scheme. Game over. It's
shot to hell. You don't continue to use bad encryption or pretend it didn't
happen. Yet in November, that's exactly what we saw happening. And even
worse, we saw people being intimidated into taking down web pages that had
the offending code on them.
It was insane! It reminded me of the one car crash I've ever been in where a
garbage truck ran through a stale red light right in front of me on 8th and
Avenue A in the East Village. The driver tried to intimidate the people who
came forward as witnesses, telling them, "You didn't see anything. Get out
of here!" But if you know the East Village, you know it's not the place to
intimidate people and get away with it. It's also where a lot of the
"weirdoes" hang out. So to me, it's always had the mindset of the net. And
that's why I've always been comfortable in both environments. And, yeah, the
garbage guy got in a shitload of trouble.
The kind of honesty you get by having individuals who aren't afraid to
express themselves has always been a threat to those who imagine themselves
in power. Until recently, the net was the only place where individual
opinion actually had a chance. If the media wouldn't tell your story, YOU
could become the media and tell the story yourself. The whole world could be
I won't even get into how the net is being destroyed by advertising and
conglomeration. There's no time to go on the offensive when so much time has
to be spent defending one's very existence. Every day we get new reports of
people being threatened in some way by some huge corporate entity because
their opinions and free expression don't sit well. Years ago, this sort of
thing would have been laughed at. Today, it's a very different story. Voices
are being silenced, criticism is being eliminated. And very unfortunate
precedents are being set.
This is all made possible through bad legislation, things like the Digital
Millennium Copyright Act, which has made this lawsuit possible. Unless
stopped, there will be many many more like it in the future. And many more
bad laws as well. Until we overturn this thing, the danger to all of us is
Just for the fun of it, I tried to find out who had voted for the DMCA, so I
could make an extra effort not to vote for them. But they did it with a
voice vote - there is no record. How reassuring.
So now we have this law that basically says we are not allowed to show
people the failings of technology if the people controlling that technology
decide they don't want us to. An expansion of this law which could go into
effect in October would make it illegal to even TRY to find failings in such
It makes you want to scream. Concepts that most 12-year-olds can grasp and
understand the value of are being signed away to entities that are already
far too powerful. And the result is what we have been going through extended
to however many more want to try and stand up for our vanishing rights.
To get back to the naive notion of common sense that we've been clinging to
throughout this ordeal, we thought, no, we KNEW the right thing to do last
November was to report the story and to publish the programs. And nobody
here is ashamed of the fact that part of the reason for doing this was to
show support for people who were being bullied. I've never liked bullies,
whether they be kids, teachers, parents, cops, governments, or corporate
giants. What they were doing to these people was wrong and we felt that our
standing up might make a difference.
Well, it did. But not in the way we expected. Suddenly, WE became the
problem even though we had nothing to do with the encryption being cracked
or even with the initial release of the story. It was as if someone painted
an insult on the side of a building that everyone in the world could see. A
newspaper comes along and does a story on this and prints a picture of the
building and is then blamed for the insult. Oh, and let's also point out
that no matter how hard they try, nobody can wipe the paint off the wall.
The way things are today, we're supposed to pretend nothing is wrong and if
we dare to report otherwise or present evidence to the contrary, we will
take the full brunt of the blame. Sounds like some weird medieval monarchy
The sad fact is that we never had a chance in this court. A mere reading of
the decision shows this more clearly than anything I could possibly say.
"Not surprisingly, 2600: The Hacker Quarterly has included articles on such
topics as how to steal an Internet domain name, access other people's
e-mail, intercept cellular phone calls, and break into the computer systems
at Costco stores and Federal Express." The fact that he would use the phrase
"not surprisingly" speaks volumes as to his opinion on our value to society.
It is, at best, utter ignorance and only proves beyond any shadow of a doubt
how thoroughly Judge Kaplan bought into the MPAA's warped notions of what
our magazine is about. We printed an article on weaknesses at Network
Solutions that allowed domain names to be stolen. Guess what? They FIXED it
as a result of this article and now, domain names, including our own, are
not at risk of being stolen, at least, not as much. (Had Kaplan ruled on
THAT issue, it would have been illegal for us to tell anyone this and the
security holes would still exist.) The same holds true for many of the other
security weaknesses we report on. But, as we tried fruitlessly to explain,
we exist to report the story, period. Someone may fix the problem because of
the story or someone may exploit it. We cannot and will not determine what
happens as a result nor will we allow fear of that to make our editorial
decisions for us.
Kaplan also seems to share the MPAA's amazement that we would actually
copyright our magazine and our web site. ("Interestingly, defendants'
copyright both their magazine and the material on their web site to prevent
others from copying their works.") It's clear he believes that we have no
respect for or belief in the concept of copyright. He either wasn't paying
attention during my testimony or simply refuses to believe that copyright is
necessary to prevent someone else from taking credit for and control of your
work. I repeatedly said that copying was not our concern. What the MPAA is
attempting to do with copyright is not at all in line with its original
I also find it amazing how Jon Johansen's credibility is wiped away on two
occasions with a single sentence. ("[T]he Court finds that Mr. Johansen and
the others who actually did develop DeCSS did not do so solely for the
purpose of making a Linux DVD player if, indeed, developing a Linux-based
DVD player was among their purposes." "Substantial questions have been
raised both at trial and elsewhere as to the veracity of Mr. Johansen's
claim.") Yet not a single ounce of proof that he wasn't being totally honest
is ever presented. I mean, we had PLENTY of questions both at trial and
everywhere about the MPAA's veracity. But our saying that wouldn't be
enough. Why is it that the MPAA is able to so easily put words in a judge's
The flaws in logic abound. At one point publishing DeCSS is compared to "the
publication of a bank vault combination in a national newspaper. Even if no
one uses the combination to open the vault, its mere publication has the
effect of defeating the bank's security system, forcing the bank to
reprogram the lock." First off, this isn't at all similar to what happened.
If this analogy were to be correct, someone else would have already
published the combination and we would simply have published the SAME
information that had already been made public. Second, the security system
of the bank was compromised the moment the combination was released or
leaked to the public, NOT when this fact was reported in a newspaper. This
method of blaming the messenger for the message has been used throughout the
world to shut down opposition newspapers and imprison people who don't
follow the party line. It's troubling to see it applied here.
Now, on the question of this theoretical bank being forced to reprogram its
lock, would anyone hesitate to suggest that that is PRECISELY what they
SHOULD do? A bank that didn't do this would probably be prosecuted for
negligence. So why doesn't Kaplan apply this logic in his own analogy to the
MPAA? Because of this: "Development and implementation of a new DVD copy
protection system, however, is far more difficult and costly than
reprogramming a combination lock and may carry with it the added problem of
rendering the existing installed base of compliant DVD players obsolete." So
basically, a security hole can be left in place if it's too expensive to fix
and anyone who exposes the continued existence of the hole can be
Meanwhile, a few pages later "the Court holds that CSS effectively controls
access to plaintiffs' copyrighted works." That made me laugh. Would we be
here today if THAT were true?
At one point, DeCSS is compared to an epidemic. But even in that odd
analogy, it's recognized that finding the original source of "infection"
accomplishes nothing. It's a nifty metaphor but I don't see what it does for
the case against us.
Another time, DeCSS is compared to an assassination. No kidding. "Computer
code is expressive. To that extent, it is a matter of First Amendment
concern. But computer code is not purely expressive any more than the
assassination of a political figure is purely a political statement." You
get the feeling he's deliberately equating computer code with something bad?
Maybe it's me. But let's look at this somewhat logically. A political
assassination is a completed act. A computer program isn't completed until
someone copies it, compiles it (if it's source), and executes it on the
proper platform in the proper setting. A more accurate comparison would be
to compare INSTRUCTIONS for an assassination to a computer program. They
both require someone or something to act upon the instructions before the
task is complete. By outlawing all talk of assassination, including those
within works of fiction, we achieve the same level of protection that
outlawing dissemination of DeCSS accomplishes.
Naturally, one of the most important issues here is that of "fair use" which
is something the DMCA appears to be taking away from us. In other words, you
are entitled to excerpt portions of copyrighted works for all kinds of
purposes. It's also not illegal to make backup copies. These are very
fundamental and important concepts. So how do we get around the restrictions
that we're now finding in new digital media? Judge Kaplan addressed that
important issue this way: "[A]ll or substantially all motion pictures
available on DVD are available also on videotape. In consequence, anyone
wishing to make lawful use of a particular movie may buy or rent a
videotape, play it, and even copy all or part of it with readily available
equipment." THAT'S the solution to the "fair use" issue - use old technology
that isn't affected by the DMCA?! Not exactly a graceful way of ducking the
Another thing that bothers me is that it doesn't seem to matter in the least
WHY DeCSS was written. The fact is that DeCSS was written to circumvent CSS
and, even if that was done specifically to cure world hunger, in the eyes of
the court, it was a violation of the DMCA. If this is the case, then it's
pretty obvious that the DMCA is one screwed up piece of legislation that has
to be thrown out. But the judge goes way beyond this, insulting our
integrity and existence at every possible opportunity and making no secret
of the disdain he feels for the entire case of the defense. One has to
wonder why he found that necessary if it was such a clearcut violation.
Naturally, one of the most disturbing parts of all of this is the ruling on
linking. "The only distinction is that the entity extending to the user the
option of downloading the program is the transferee site rather than
defendants, a distinction without a difference." We can all laugh at such
words but they represent something very sinister. We are now expected to
believe that telling someone how to get a file with a link is the same as
offering it yourself. I want to know if this works both ways - if I point
someone to a site or product that costs money, is that also a "distinction
without a difference" that will allow me to be compensated? This kind of
logic is already giving me nightmares.
Finally, there are the disturbing words on who we are and what we stand for
and how this is somehow relevant to the decision. "Defendants are in the
business of disseminating information to assist hackers in 'cracking'
various types of technological security systems. And while defendants argue
that they promptly stopped posting DeCSS when enjoined preliminarily from
doing so, thus allegedly demonstrating their willingness to comply with the
law, their reaction to the preliminary injunction in fact cuts the other
way." Interesting, isn't it? Our "reaction" is enough to condemn us, even
though we followed the injunction to the letter. By speaking our mind and
encouraging others to do what we alone were forbidden from doing, we are
somehow in the wrong. How is this even relevant to the law? Are people who
believe in certain things or associate with certain people to be treated
differently? In Judge Kaplan's mind, we "are adherents of a movement that
believes that information should be available without charge to anyone
clever enough to break into the computer systems or data storage media in
which it is located." This is, to say the least, insulting and just plain
wrong. I challenge him to find a single instance where we have ever
supported piracy or accessing private information. These ignorant
generalizations sound more like the work of Jack Valenti's ghost writer.
What too many people don't seem to realize is that the rules have changed
overnight and it WILL affect them. Imagine not being allowed to lend a book
to a friend. Imagine not being able to play music that you bought in another
country. Imagine only being able to watch "approved" content on your DVD
player. And just wait until HDTV comes around and makes it impossible to
record anything unless you pay. These are all natural extensions of the
existing restrictions and they are all now perfectly legal. You've lost the
right of "fair use" with copyrighted material that you think you own. In
actuality, you've just bought a license to do what they tell you.
So, after all is said and done, I have to echo what all of the legal experts
have said so far: I'm not at all surprised. This is how we expected the
first round to go. It's now time to focus on the Appellate Court and
eventually, since whoever loses next will most likely appeal, the Supreme
Everyone is asking what will happen to us and how they can help. Well, we
were pretty fortunate that Judge Kaplan didn't choose to hit us with the
MPAA's legal bill, like they wanted him to. Their legal fees are believed to
be in excess of $4 million so that definitely would have caused a delay in
the next issue. It should also make it pretty clear that the MPAA has no
qualms about utterly destroying anyone who gets in their way. And it should
also make it clear how important we think this is that we would risk such a
thing. And ironic that none of us even HAS a DVD player.
We're also extremely fortunate that the Electronic Frontier Foundation was
around to fund our defense. If anything has proven the value of the EFF in
looking after civil liberties in the modern age, this has. I can't emphasize
enough the importance of heading over to
http://www.eff.org/support/joineff.html (I'm actually afraid to make a link
now) and donating as much as you possibly can to keep this case going.
Explain this to as many people as possible and get them to do the same.
If there's anything good to come out of this decision, it's that we'll get
to continue working with our legal team who have been absolutely amazing
from the start. I've never seen a group of people so dedicated to learning
and understanding the facts. It's a real honor to be among them and it's
really changed the way I look at the entire legal profession.
As for what you can do to help, apart from the above, that's really up to
you as it's always been. If you believe DeCSS is a form of speech, a means
of access for alternative operating systems, or a necessary step towards
"fair use" of digital media, then spreading it throughout the world is
extremely important for the preservation of those freedoms. If you're in the
United States, be aware of the risk you are taking. And if you're one of
those people who really buys into the MPAA notion that DeCSS is a tool of
piracy, please DON'T do the above because you're missing the entire point.
We can no longer post DeCSS on our site nor can we link to it. We still have
the right to list those sites that have it in non-linkable form and we also
have the right to speak out against the injustice we're being hit with. The
MPAA would like those rights taken away as well. We cannot allow them to
There will be further leafleting campaigns in the weeks ahead. Keep checking
this web site for details. And please let us know your opinions -
firstname.lastname@example.org. We would give out an address for the MPAA but they've been
blocking e-mail for some time and blaming hackers for every problem they
have. So give them a call at (818) 995-6600 from 9 am to 5:30 pm Pacific
Time. Be civil but make sure you get your point across. After all, where do
you think that $4 million ultimately comes from?
This archive was generated by hypermail 2b29 : Mon Aug 21 2000 - 19:51:48 PDT