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DeCSS: Round one to Hollywood, but the fight continues


(IDG) -- It came as no surprise that a federal judge granted a permanent injunction against Eric Corley and 2600, his hacker magazine. The ruling, which prohibits posting the DeCSS code that decrypts DVDs, ends the suit in favor of the plaintiffs, the Motion Picture Association of America. What did come as a surprise was that Judge Lewis Kaplan of the US District Court for the Southern District of New York also enjoined the defendant from linking to Websites that offer DeCSS or otherwise trafficking in the code, and broadened the ruling to enjoin those acting in concert with 2600.

"[The ruling] does chill linking and, in the long run, it chills the Internet," commented Meg Smith, a fellow at Harvard Law School's Berkman Center for Internet & Society, which filed an amicus brief on behalf of the defense. "Certainly linking will become a key issue for an appeal now," said Wendy Seltzer, also a fellow at the Berkman Center.

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While piracy was the reason the filmmaking giants gave for the suit, the trial also raises issues of free speech and fair use, uncharted territory in the digital age. "The court's ruling is a victory for consumers and for legitimate technology," said Jack Valenti, MPAA chair and CEO.

A Test Case for the DMCA

The case is also the first test of the Digital Millennium Copyright Act (DMCA) of 1998, under which the movie studios sued, alleging that the posting of DeCSS, which decrypts CSS, the Content Scrambling System or the lock on DVDs, constituted a copyright circumvention device. The defense raised the points that CSS also prevents fair use and that computer code such as DeCSS should be protected under the First Amendment as a form of speech.

The Electronic Frontier Foundation, a nonprofit organization based in San Francisco that fights for rights in cyberspace, provided defense. It plans to appeal within a month to the Second Circuit Court of Appeals for New York, said Robin Gross, an EFF attorney and defense team member.

A portion of Judge Kaplan's 93-page opinion detailed his view on the all-important question of whether DeCSS can be considered speech and is thereby protected by the First Amendment. "The computer code at issue in this case, however, does more than express the programmers' enables anyone who has a modicum of computer skills to circumvent the plaintiffs' access control system," Judge Kaplan stated. Therefore, DeCSS could be scrutinized less intently under the First Amendment and regulated by government.

"Hollow Victory"

"The court has now carved out a new category of expression that can be excluded from the First Amendment," Gross said. The defendants are also prepared to go to the Supreme Court if necessary, she added. Leading the defense is Martin Garbus, a private attorney practicing in New York City, who has been before the Supreme Court several times on First Amendment issues. It's a difficult case, on appeal as well, explained Smith. "For decades it has been legal to give instructions to make a bomb. Now for the first time, the instructions are the bomb," she said.

In the meantime, the ruling will most likely add punch to the MPAA's cease and desist letters it sent to parties acting in concert with 2600. "It's a blanket order," said Mark Litvack, attorney for the plaintiffs, who plans to use the opinion as the MPAA pursues code traffickers in 72 countries around the world. "It stops a major distributor, and it sends a message. It's our hope that most Americans won't break the law -- stealing is wrong."

Dave Touretzky, a professor at Carnegie Mellon University in Pittsburgh who was a witness for the defense, maintains a Website called Gallery of CSS Descramblers, which includes an image of the famous T-shirt with the DeCSS code, worn by hacker supporters at the trial. Referencing footnote 275 of the opinion, Touretzky said, "[Judge Kaplan] is enjoining only the C source code and the object code. It looks like he is telling us that the rest of the gallery is okay, because the plaintiffs neglected to ask for a broader injunction. Given that people have already experimented with tools for translating C into English and vice versa, I think the MPAA is going to find this a hollow victory."

Can Reverse Engineering Be Illegalized?

The defendant Eric Corley, aka Emmanuel Goldstein, posted the DeCSS last November as part of a story he wrote about reverse engineering accomplished by teenager Jon Johansen of Norway to decrypt DVDs in order to play them on a Linux computer. When the MPAA sued in January, Corley did not settle, though other defendants in the case did.

Kaplan's ruling upheld parts of the Digital Millennium Copyright Act that may be a blow to reverse engineering in general.

"[The DMCA] is really a law against reverse engineering. It's not crafted well. It's counter to how we've made advancements. Most of Linux wouldn't have come about without it. There are so many companies that owe their existence to reverse engineering," said Chris DiBona, president of the Silicon Valley Linux Users' Group.

DeCSS -- a product of reverse engineering -- also contributed to the creation of LiViD, a Linux-based DVD player, which will soon be available free of charge. LiViD operates without a CSS license; licenses for legitimate use of CSS are solely controlled by the DVD Copyright Control Association (or DVDCCA), a nonprofit organization established by the MPAA and the consumer electronics industry. DVDCCA was the plaintiff in an earlier court battle over DeCSS (see Resources for a link).

Long-Term Implications Ignored

Some issues related to DVD players remain unresolved by the ruling. Not only is it not clear if the ruling will affect LiViD, but "[Judge Kaplan] seems unconcerned with the antitrust implications of the ability of movie studios to regulate the market for DVD players through licensing," according to Seltzer.

"[Judge Kaplan's ruling] helps to expose the argument that many of us have been making since before DMCA was enacted -- that it goes far beyond what is necessary or appropriate to protect copyright in the digital age, which is its supposed purpose," said James S. Tyre, a member of the Censorware Project and a First Amendment lawyer in Pasadena, Calif. "Under [the ruling], it would be unlawful to use DeCSS to play the movie on a Linux machine, even though the underlying work is no longer copyrighted."

Regarding fair use, Judge Kaplan opined, "Congress struck a balance. The compromise it reached, depending upon future technological and commercial developments, may or may not prove ideal."

In other words, according to Litvack, "The defense said, 'We don't like what Congress did [in the DMCA],' and the judge answered that they would have to go to Congress to change it, not the courts.

That the posting of DeCSS caused any piracy still has not been proved. Indeed, the plaintiffs had dropped damages from their suit and were granted only court costs. "The defendant did not pay attorney's fees because this was a case of first impression," Litvack added. "Next time that will not be the case."

Passionate reactions online to the DVD-copying decision
August 22, 2000
The next piracy panic: Software
August 21, 2000
Napster, DVD cases raise copyright questions in digital age
August 7, 2000
Focus on the DeCSS trial
July 27, 2000
Hearing spotlights clash between open source and copyright protection
May 26, 2000

Missed the first part of this story? Read it here
From Norway, with love: The teenage author of DeCSS speaks up
Reactions passionate to DVD ruling
DVD piracy gets political
Music is just the beginning
Industry Standard
Meet the founder of Freenet
Why I bought my son an MP3 recorder
The next piracy panic: Software
Industry Standard

Judge Kaplan's opinion
Final judgment and order
The Berkman Center for Internet & Society at Harvard Law School

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