18 August 2000. Cyberia-L is a legal mail list.

Date: Fri, 18 Aug 2000 09:59:05 -0400
From: Benjamin Reeve <breeve@IBM.NET>
Subject: The Remarkable MPAA Decision
To: CYBERIA-L@LISTSERV.AOL.COM

Although many on this list clearly recognize that Judge Kaplan's decision in the MPAA v. Corley case in New York is significantly flawed, and further suggestions to that effect probably aren't helpful, accounts of its failings seem a bit divided and uncertain.  (Or, perhaps, just closely tied to opinions, if justifiable opinions regarding his apparent prejudices and want of judicial temperament.)

Knowing that I will probably take quite a pounding for offering a few suggestions I make some nonetheless.  Now with the benefit of nearly twenty-four hours to consider the opinion, the following notions occur (and re-occur in some cases), to me.

1. The "source code as expression" and as First Amdt protected speech has a basic contradiction at its core.  In an important sense, the real problem is the incompleteness of the "expression" of an executable informational entity, not the "expressiveness" of one. Among the principal good reasons for the protection of things such as DeCSS has to do with the truth that the expression in fact of any executable entity cannot be well known from mere unequipped inspection and even (another version of the halting problem again) cannot be known from any particular amount of execution.

Indeed there is a thread of First Amendment jurisprudence that suggests, in effect, since no one person can or will speak all of the truth we protect the right of free speech.  By analogy, one might say that the First Amdt expressiveness argument of any of many possible varieties of deXXX code or un-QQQ code would be that its "expressiveness" "contributes" to ascertainment of "truths" that are only partially or incompletely asserted in the initial statement.  Although a reasonable argument, it is or would be  predictably difficult for the unconscious Judge Kaplan.

A straighter path toward the important ideas that need to be reached to do well in a case such as this one though, may be to emphasize, instead of "expressiveness" as such in coded entities, indeed the lack of immediate expressiveness and therefore society's reasonable requirement for a certain free field of testing and examination and changing and decrypting.

2.  Although Kaplan's dishonesty and distinct lack of fair consideration is more than evident, a certain extensive unknowing, a thoroughgoing unawareness on his part, is even clearer still.  He has no idea what he is really doing.  He gives every evidence that he cannot conceive this case anything different than a parent telling little Jimmy that he has to give back Billy's toy truck in the sandbox if and when Billy says he wants it.

Kaplan, although clearly smart in a kind of IQ test sense, quite evidently is no thinker.  Nevertheless, something clearly went very wrong in this case and in the presentation of it not to break through the kind of false oversimplicities with which the results of it are laced.  Lose, sure.  Everyone pretty much knew that MPAA was going to "win."  Rather it is the "...constitution is not a suicide pact..." sort of stuff that gives one pause.  And it is not the "colorful" language, it is the notion that the concept might be suggested relevant that is unsettling.

No finger is here pointed, but it is interesting to consider why at least the trial presentation did not overcome some of the most glaring "cleverly put stupidities" so evident in the produced opinion.

3.  On a similar note, although Kaplan is gratuitously nasty about the amount of time required for trial, he has a point in saying that most of the  apparent "facts" (as "facts" are traditionally understood), could have been stipulated in the case.

After a certain fashion, that is a very true statement. But if he understood the sense in which that is true, the result should have been very different.

Kaplan pushed very hard in the argument regarding the preliminary injunction to get defendants' (then there were three) attorneys to agree that it was a "fact" that "deCSS does [empashis on does] descramble CSS...."  in the sense that one might agree that Billy's sandbox truck *is* the one painted blue.

The fact facts in such as case are propositions that such as that DeCSS exists as a non-physical entity comprised of a certain bit sequence.  Whether that bit sequence does or does not constitute a "means" etc. of "circumventing..." is not a fact  -- in the guise of "DOES decode" or any other.

By suggesting that the facts could have been stipulated -- which was true --  but by packing into suggested "facts" conclusions that are not so factual at all, we ended up with, in effect, the nasty assertion that the outcome could have "been stipulated." No fingers pointed, but there is a very real sense, to me, in which this case has not been tried.

4. Even accepting that Kaplan cannot understand even to most basic social policy arguments, one wonders whether they could not have been more distinctly made -- at least to the extent to which he would have had to respond (and presumably make a hash of it) to them in his opinion.

Kaplan was not forced even to give the most minimal consideration to the "so -- how does one know..." question.  After his opinion, any enterprise can construct any form of purported "access control" to some copyrighted something, and have that thing become an instantly unassailable fixture.

Encodings certainly can have properties that are dangerous, and society has every reason to protect itself from such dangers.  A virus, a biological virus, West Nile, etc., basically is an encoding.  It is not wrong to say that society and its courts exist to understand and decide regarding such kinds of things.

But that is also the point.  Within a now hyper-protected "access control" measure, one can now embed, for small example, any form of highly oppressive "user identification" scheme that one might chose to.  And get the injunctive support of a wondrously conclusory judiciary for the same price.

And Kaplan was not pushed to deal with such matters even marginally.  Again, I am not pointing a single finger (not even a knuckle).  But, to me, that is very remarkable.

Benjamin Reeve <breeve@ibm.net>