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[dvd-discuss] Ramblings on DVDCCA appeal from M.Rolenz
- To: dvd-discuss(at)lweb.law.harvard.edu
- Subject: [dvd-discuss] Ramblings on DVDCCA appeal from M.Rolenz
- From: "James S. Tyre" <jstyre(at)jstyre.com>
- Date: Sat, 22 Dec 2001 14:54:21 -0800
- Reply-to: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
[I'm just channeling for Mike Rolenz here (don't ask), the below comments
>There are several fundamental flaws in the arguments.
>1. Unproven assertions. They allege that secrets were STOLEN,
>misappropriated, , , , etc.,,,,,,- NOt proven. They repeat this at length in
>an attempt to sway the reader into believing that the fact is obvious it is
>1a. This is a post hoc propter ergo hoc fallacy. Because the secret has been
>revealed it must have been stolen because it was a secret.
>1.b. THe assert that a license was broken. Does this refer to a shrinkwrap
>license? The courts are routinely ruling that these are not enforceable.
>2. Unlicensed players. They make much about unlicensed players yet the
>supreme court has dealt this this argument before in 1917 (universal films?).
>3. a.The DVDCCA claims that the CSS is trade secret. How can this be? How is
>the CSS protected? WHile the algorithm is licensed, the DVDs themselves are
>NOT. They are distributed in the market place and purchased as personal
>property. The situation is analogous to the trade secret status of CocaCola.
>They keep the formula of the syrup secret but If I buy a can and put it
>through an exhaustive physical and chemical analysis and publish it Coke
>really can't sue me for unlawful
>3b. The DVDCCA claims that the keys are trade secrets. They keys are on the
>disks which are sold in the market place. The recovery of the keys was
>relatively trivial and are trivial in themselves.
>3.c. Trade secrets are knowledge that give the owner some advantage over
>competitors. The CSS does not give the DVDCCA or it's licencees an advantage
>over a competitor (BTW, other than LINUX, there is NO competitor) but gives
>them monopoly power over the public as a whole.The government does not have a
>compelling interest to support this. Indeed the government has a compelling
>interest to eliminate this situation.
>4. The appeal repeatedly asserts that the government has a compelling
>interest to protect the trade secrets of corporations over any possible first
>amendment claims. This argument is fallacious for several reasons. First, the
>government does not have compelling interest in upholding the FA, it has a
>REQUIREMENT To do so. This requirement is paramount. Second, the government
>has an obligation to promote progress by allowing monopolies for limited
>times (patents and copyright). Both of these require the public disclosure of
>inventions or writings. Trade secrets do not there fore they are not covered
>under this clause (as the logical contrapositive). Nor do trade secrets
>promote progress. Obviously since the secret is not widely known, should it
>become lost so too is ANY progress that the secret may provide even for the
>limited number of people who know it.
>THird, the laws repeatedly allow for reverse engineering of works sold in the
>market place without patent or copyright protection and the history supports
>this support. As promoting progress the government has more interest in
>promoting reverse engineering than it does protection of trade secrets.
>IN the case of the DeCSS, the government has a requirement to protect the
>first amendement and promote progress by allowing reverse engineering. The
>DVDCCA argument ignores this middle ground between a Trade secret and its
>reverse engineering.As noted above, at no time to they prove that the trade
>secret was NOT obtained through reverse engineering of a product in the
>5. The Felton suit was dismissed because of it's "speculative" nature and
>lack of "damages". If that is the case, the the 2600, Bunner and all other
>suits brought by the DVDCCA, MPAA, and RIAA are the same. They present no
>proof of damages. Their argument are only speculative about what damage might
>occur. The DVDCCA waves this flag and it should be dismissed accordingly.
>Given the resources of those groups (as opposed to Felton et al.), PROOF is
>required and not provided.
>6. One particularly egregious statement deserves comments "Trade secret law
>is founded upon the core principle that businesses will not invest money,
>labor, or equipment in an effort to create those innovations which cannot be
>copyrighted or patented if trade secret law does not fill the gap to enable
>them to profit from their labors" If the innovation is not such that it can
>be copyrighted or patented, then its significance is questionable-so is the
>need for protection. Furthermore, the statement is ridiculous on the face of
>it - a business that does not invest money time or labor to enable them to
>profit SHOULD go out of business and it is not in the governments interest to
>prop them up using the law to protect imaginary trade secrets.
>6a. "There is no principled reason to treat trade secret law any more
>stringently under the first amendment than other forms of intellectual
>property" This is fallacious since it attempts to equate trade secret with
>patent and copyright. They are not. Trade secrets do not enjoy a limited
>monopoly (although the UTSA may be unconstitutional in that it allows a
>perpetual monopoly for a trade secret which contradicts the limited monopoly
>that a patent and copyright have.)
>7. Fanciful appeals to the founding fathers are fallacious arguments apriori.
>Since the writings of the founding fathers tend to show a desire to promote
>progress through copyright and patents, support for the DVDCCA's position is
>imaginary at best.
>If I can get an html or text copy of the DVDCCA's petition, I may try
>annotating it in TWIKI later but not right now....
>Excuse the length and rambling.....