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January 19, 2000
Web posted at: 11:59 a.m. EST (1659 GMT)

by Ann Harrison

(IDG) -- Legal actions filed by eight motion-picture companies seeking injunctions against Web site operators for posting a controversial software program have drawn fire from an online civil rights group that contends the move is unconstitutional.

The complaints were filed Jan. 14 in an effort to block the Internet distribution of a software utility called DeCSS, which breaks the encoding system used in millions of digital versatile discs (DVD). DeCSS was originally created by Norwegian programmers who reverse-engineered the DVD Content Scrambling System (CSS) to give computers running the Linux operating system DVD playback capability.

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The plaintiffs in the case are Universal City Studios Inc.; Paramount Pictures Corp.; Metro-Goldwyn-Mayer Studios Inc.; Tristar Pictures Inc.; Columbia Pictures Industries Inc.; Time Warner Entertainment Co.; Disney Enterprises Inc.; and Twentieth Century Fox Film Corp., according to a statement issued last Friday by the Motion Picture Association of America (MPAA).

The San Francisco-based Electronic Frontier Foundation (EFF) maintains that the film industry inappropriately labels as "speech" what is actually the technical insecurity of DVD.

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"These cases are not about piracy or hacking," EFF Executive Director Tara Lemmey said in a statement. "They are about censorship of speech critical to science, education and innovation. Reverse-engineering of DVD security is legitimate and important for systems interoperability and the right that we must preserve for a healthy, open and democratic society in the information age."

The EFF is leading the defense in another DVD case filed in California Dec. 28 by DVD Copy Control Association Inc. (DVD - CCA) in Morgan Hill, Calif., which accused 72 Web site operators of posting or linking to the DeCSS utility.

The injunction complaints in the case announced by the MPAA were filed in the Southern District of New York and District of Connecticut against four defendants to prevent them from making the utility available on their Web sites. The defendants in New York are Shawn C. Reimerdes; Eric Corley, also known as Emmanuel Goldstein; and Roman Kazan. Jeraimee Hughes is named in the District of Connecticut.

The earlier DVD-CCA case sought a preliminary injunction against the Web site operators based on the contention that the software will be used to make illegal copies. Defendants were accused of violating the association's proprietary trade secrets and other intellectual property rights. A judge denied the request for a preliminary injunction.

The EFF is sponsoring the legal defense of Andrew Bunner, the sole defendant to come forward in the DVD-CCA case. According to Lemmey, the EFF legal defense team will argue this week that DVD-CCA's request for a preliminary injunction would essentially stop a public discussion about DVDs work, constituting a prior restraint of an important public discussion, which is forbidden by the First Amendment. The preliminary injunction hearing is scheduled to take place today at Santa Clara County Superior Court in Santa Clara, Calif.

The MPAA members are using a different tactic to fight CeCSS. They are asserting that under federal law, it is illegal for anyone to traffic in a product that is designed to render useless encryption devices that protect copyrighted material. The organization points out that in 1998, Congress passed and President Clinton signed the Digital Millennium Copyright Act (DMCA), which they say protects the creators of copyrighted material from theft of their material. The MPAA maintains that the defendant's "brazen trafficking" of DeCSS violated the "anticircumvention" provisions of the DMCA.

Announcing the court action, Jack Valenti, president and CEO of the MPAA, said in a statement that the MPAA "is striking a blow today in defense of the future of American movies." Valenti insisted that the distribution of DeCSS was a case of theft no different from distributing unauthorized keys to a department store. "The U.S. movie industry intends to defeat anyone who steals our intellectual property. We are determined to defend the technology that protects artists' and intellectual property holders' rights," vowed Valenti. "If you can't protect that which you own, then you don't own anything."

Mark Litvack, director of worldwide legal affairs for antipiracy for the MPAA , said the organization isn't aligned with the Copy Control Association's complaint and this suit is the first of more such actions that may be brought by the MPAA members. "We are asking the court to stop the posting of these defendants because we believe the court has full jurisdiction over them and can enter a full injunction in regards to these defendants," Litvack said.