Sunday, Sep 7, 2008
Does the DVD-decrypting DeCSS do for video what Napster did for music, and can copyright law stop it?
Jul 19, 2000 | Eric Corley, better known to his friends as Emmanuel or "Manny" Goldstein, tends to keep his hands in his pockets and his eyes aimed at the floor. The editor of 2600, the hacker quarterly, may be the latest hacker icon -- he is, after all, on trial here this week, sued by eight movie studios for distributing DeCSS, a program that decrypts DVDs so people can play them on Linux-based operating systems -- but outside the courtroom Monday, he was soft-spoken and polite. When one young, black-clad hacker gushed, "I just need to shake your hand," Goldstein obliged quietly, his long, curly hair draping a wrinkled forehead and downward glance.
Get him talking about the need to protect DeCSS, which a judge outlawed late last year, however, or the public's right to distribute it, and you'll see a pair of burning brown eyes and an entirely more vocal man. Before cameras, critics and supporters this week, Goldstein continues to argue that DeCSS is not a tool for piracy as the studios claim, but rather the only mechanism that allows you to play a DVD on a computer running Linux. And the Digital Millennium Copyright Act, the law that appears to make illegal DeCSS technology simply because it circumvents copyright control, is, he says, nothing less than a colossal mistake.
"The DMCA is an example of what can happen when laws are written by people who don't know what they're talking about," argues Goldstein. "It has to be revisited. If it's not, I don't see how technology will ever move forward. It will make it impossible for people to figure out how to understand technology and make it better. It will scare people off, leaving only a small community of outlaws."
The studios' trade group, the Motion Picture Association of America (MPAA), would like to isolate Goldstein as one of those outlaws, but ultimately the importance of this trial has little to do with Goldstein's innocence or guilt in distributing a software program over the Internet. This is a major battleground in the tug of war for digital distribution rights.
"It's a landmark case because it tests the limits of copyright," says Mark Radcliffe, a law partner in Palo Alto's firm of Gray Carey Ware and Friedenrich. "Before the DMCA, copyright law controlled merely behavior -- the act of copying -- but now, the law is extended to possession, simply having a tool that could lead to copying."
This aspect of the DMCA, called the "anti-circumvention clause," is the crux of the DeCSS case. Whereas the recording industry is suing the popular music-swapping service, Napster, in part under the older copyright theory of contributory infringement -- meaning that the company allegedly helps people steal copyrighted music -- the movie studios' DeCSS suit focuses solely on the act of circumventing the studios' control.
"There's an important legal difference between the Napster case and this one," says Leon Gold, one of the studios' attorneys. That case is about whether swapping music files is equivalent to stealing; this one is about whether a software program undermines the ability of copyright holders to determine how their content is consumed. "That's why the number of DVD copies made is irrelevant. There will be severe damages to the plaintiff unless the court enforces the anti-circumvention statute, but there are already severe damages. We've lost control. The greatest harm is that DeCSS took away what Congress gave us."
Goldstein's attorneys roundly disagree. "The DMCA was written to prevent piracy, not access to the content," says Robin Gross, a staff attorney at the Electronic Frontier Foundation and a member of Goldstein's defense team.
"It's the principle," Goldstein says. "Right now, we have a law that's made it illegal to show people how things work. We didn't even figure DeCSS out, we just posted the code. I don't think this is what Congress intended."
But of course, what Congress intended will be interpreted by Judge Lewis Kaplan, who on Monday seemed willing to reject almost every objection from Goldstein's team, in some cases before the lawyers had a chance to speak. He also denied their motion, filed Friday, asking him to recuse himself for conflicts of interest; Kaplan counseled Time Warner, a plaintiff in this case, on DVD issues in 1993.
Regardless of which way Kaplan tips in this jury-less trial, an appeal is expected. Both sides have expressed interest in taking the case to higher courts. In fact, it has a decent chance of going all the way to the Supreme Court, says Mark Lemley, a law professor at the University of California at Berkeley, whose Duke Law Review article Judge Kaplan quoted at length when he enjoined 2600.com and Goldstein from posting DeCSS in January. However, that would only postpone the inevitable effects of the case, he says.
"Looking at the bigger picture, how this case is decided will determine how digital video will develop," says Lemley. "It could establish the pattern of fighting new technology rather than working with it. On the other hand, if the studios lose, they'll find some way to work with digital video, which would be better for them in the long run."
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