Sunday, Sep 7, 2008
David Touretzky talks about methamphetamines, DeCSS and the death of the First Amendment.
Sep 13, 2000 | Nearly four weeks after Judge Lewis Kaplan ruled in favor of the movie industry, ordering a hacker Web site not to post or link to DeCSS, copies of the DVD-decrytping code abound.
There are offshore DeCSS posters and anonymous types running DeCSS mirror sites with such catchy names as the do not sue me page. And even the castigated 2600 Hacker Quarterly has gotten around the no-linking decision by simply removing the HTML and carrying a text list of more than 200 URLs you can cut and paste into a browser to reach a site that does post DeCSS. The total delay bought with nine months of litigation: about two seconds.
"Perhaps [Kaplan] really does wish to draw a line between simply stating information and enabling one to click to go to a place on the Internet," says Jonathan Zittrain, a Harvard law professor. "It's arbitrary, but lots of things are arbitrary [in the law]."
Footnote 275 of the ruling -- which expressly acknowledged that the code was enjoined while other "modes of expression that convey the same idea" were not -- seems to confirm this distinction. It also highlights who is to blame: the studios' lawyers. The injunction deals only with these two forms of distribution "because plaintiffs have not sought broader relief," it reads. In other words, "if lawyers simply said enjoin this code, the judge would have considered it," says Mark Lemley, a University of California at Berkeley law professor, whose Duke Law Review article Kaplan quoted at length in a preliminary DeCSS ruling. "But they didn't."
David Touretzky finds this "bizarre." To call attention to the legal loopholes, the Carnegie Mellon computer science professor curates a gallery of alternative versions of the code. You can read an English language translation written by Touretzky, who testified at the DeCSS trial. You can listen to a song or dramatic reading of the program, just as you can view a picture of it. If you want a sugar-coated version, just open up the Yahoo greeting card that contains the program and a coupon for a free Slurpee. This is a guy that really means it when he defends his right to creative expression through code.
Has the MPAA threatened to sue you?
No. They haven't contacted me. My gallery is still in place; in fact I've received a bunch of new contributed exhibits recently. I consider the gallery to be an academic publication; it's listed on my curriculum vitae. If the MPAA wants to start censoring academic works, they know where to find me.
What do you make of the loopholes in Kaplan's decision?
It's proof that the judge didn't know what to do. He admitted that Congress made a mess [with the Digital Millennium Copyright Act] but that it wasn't his job to clean it up. I think if he really tried to protect the plaintiffs' interests like they wanted him to, he would have had to ban all discussion, which he knew he couldn't do. So he made this token gesture.
What was the judge thinking? If he really wants to prevent people from telling others where to get the code, he should have made it illegal to publish the URL in any form. But that would make the fascist nature of his ruling even more painfully obvious. Instead he's opted for a fig leaf, although I can't imagine how he could do this without embarrassment. He's got to know that a ban on "linking" is pointless. Such silly actions merely reduce the people's respect for the courts.
So you don't consider Kaplan's decision a victory for the studios?
All the movie studios have done is make fools of themselves. It's no victory at all. Do you remember those old fairy tales where someone gets three wishes and ends up with something they didn't want? This case is a bit like that. [Kaplan] gave the plaintiffs exactly what they wanted but pointed out that they didn't ask for the right thing.
If the MPAA is smart they'll just clam up and do nothing and wait for this to blow over. Everything they do simply helps our cause by drawing more attention to their attempted power grab. It used to be hard to get people to care about the Digital Millennium Copyright Act. Now they care. We couldn't have done it without them.
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