SCN: DeCSS

[Steve]

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DeCSS judge: Code isn't free speech  

(Damien Cave, Salon.com)---A federal judge sided with Hollywood 
Thursday, ruling that the publisher of an online hacker magazine 
broke copyright law when he posted DeCSS, a program that decrypts 
DVDs and allows the digital videos to be watched on computers 
running the Linux operating system.  

Judge Lewis Kaplan's 89-page decision comes in the first case to 
interpret the Digital Millenium Copyright Act of 1998 (DMCA), and it 
outlines a narrow interpretation of the controversial law.  

Eric Corley, aka Emmanuel Goldstein, the publisher of 2600, 
immediately promised to appeal and challenge the constitutionality 
of the DMCA. In the meantime, Kaplan ordered that Corley stop 
linking to sites that post DeCSS (the judge had previously issued an 
injunction that prevents Corley from posting the code himself); and 
Kaplan made him responsible for the legal fees incurred by the eight 
movie studios that sued him. (The Electronic Frontier Foundation 
has been footing his legal bills.)  

Kaplan rendered his decision by rejecting every one of Corley's 
arguments in favor of DeCSS, stating, for example, that the potential 
fair and legal uses of the technology -- like watching DVDs as 
opposed to copying them -- do not exempt people who distribute it 
from liability.  

And the First Amendment argument failed. Kaplan decided that the 
claim of speech was not enough when the result of that speech has 
dire effects. "Computer code is not purely expressive any more than 
the assassination of a political figure is purely a political 
statement," he wrote.  

Ultimately, Kaplan found that DeCSS violates the "anti-
circumvention" clause of the DMCA, contributes to stealing and thus, 
should be stopped.  

"For now at least, Congress has resolved this clash in the DMCA 
and in plaintiffs' favor," he concluded. "Given the peculiar 
characteristics of computer programs for circumventing encryption 
and other access controls measures, the DMCA as applied to 
posting and linking here does not contravene the First Amendment."  

Here are some reactions to the decision:  

Jack Valenti, president of the Motion Picture Association of America:

I'm rather jubilant now. What Judge Kaplan did was blow away 
every one of these brittle and fragile rebuttals. He threw out fair use; 
he threw out reverse engineering; he threw out linking.  

I've been saying for months now that when you take what is not 
yours without the permission, you're stealing. It's a harsh word, but 
it's true. The judge puts it in more hospitable words, but his decision 
said the same thing.  

The big impact is that it sends an alarm bell ringing throughout 
Silicon Valley, through every office of every venture capital firm. It's 
saying to them that if you want to continue pouring money into the 
rat holes of these Web sites that are stealing or aiding or abetting 
stealing, you better take a second look at that investment. I think 
you're going to see this decision radically dry up funding. What the 
courts are saying is that if you don't use technology legitimately, 
then you don't have the right to use it. And that's going to have a 
very strong effect.  

Martin Garbus, lead defense attorney for Corley:

The judge and I have different interpretations of the First 
Amendment, but I think even if we didn't, it's difficult for a judge to 
set aside a law like DMCA, something that Congress considered for 
three or four years. So there's no surprise here.  

We understood what his views were from the point when he issued 
a preliminary injunction, we've been preparing an appellate record. 
We always knew we'd have to go to the appellate stage and there, I 
think we'll win. We'll either win at the appellate court level or in the 
Supreme Court, which is where we'd love to be in February.  

Regardless, we'll emphasize fair use. That's the First Amendment 
issue. The other First Amendment issue is linking. The implication of 
this decision is that you write a story saying you can get crack at 
125th and Amsterdam, and you could be held responsible. That 
shouldn't be the case.  

We'd like to see one of three things happen: A judge can say since 
the DMCA doesn't have a fair use clause, then it's unconstitutional; 
or a court can say fair use is there but Kaplan didn't see it and that 
saves the DMCA; or a judge can read fair use into the statute. That 
would be more imaginative, finding that fair use is the essence of 
the law and thus must be in the statute. I'd prefer the second 
because I think the statute says it.  

Shawn C. Reimerdes, developer of the file-sharing program Yo!NK 
and one of the original three defendants in this case; in April, he 
settled with the studios, agreeing not to post DeCSS on his Web site 
or link to the sites that host the program's code:

It's not surprising but it's unfortunate. Kaplan's saying essentially 
that the DMCA is there for the companies and no one else. It's 
absurd. In the conclusion, he's saying that the defendants believe 
that all information should be available without charge to anyone 
"clever enough to break into" a computer system. What a silly 
statement; he's not even calling them hackers, he's saying they're 
some kind of thief or criminal. He does say, though, that they raised 
concerns about copyright, so I hope that the appellate courts will 
decide on that.  

As for the linking section, it's absurd too. The fundamental design of 
the Web is that things are linked one to another -- you can't make 
that illegal. I'm really surprised that he left the linking in. I thought 
he'd realize the implications. I mean he says that if you're linking to 
information, then you're liable for what that information does? It's 
crazy.  

Mark Lemley, a copyright expert and University of California at 
Berkeley law professor whom Kaplan quoted at length in his Jan. 20 
injunction, which prohibited Corley from posting DeCSS:

I think it's unfortunate, in particular that the court concludes that the 
DMCA bypasses fair use. The court's conclusion has some support 
in statute, but that interpretation -- if that's what the statute does say -
- is really problematic. From a policy perspective, there's a reason 
we have fair use, so if we abolish it as this decision seems to do, 
then we've pretty radically changed the copyright law.  

It's also problematic from a constitutional perspective. The Supreme 
Court has said that one of the reasons copyright law is constitutional 
is because it has limitations built into it -- one is the idea-expression 
dichotomy, which says you can't copyright facts or ideas, you just 
get to protect your way of expressing them. The other is fair use, 
which lets people copy things for certain legal reasons like library 
use.  

Because of these limitations, copyright law doesn't intrude on free 
speech, so it's legal. But if you can bypass fair use in this large 
class of cases, then there's some question as to whether the statute 
itself ought to survive Supreme Court scrutiny.  

Kaplan spends a lot of time on the First Amendment, but not on this 
issue. The opinion doesn't talk about the constitutionality of the 
DMCA. This was argued in the trial; I would have expected to see 
some treatment.  

The linking thing is also troubling. The court clearly tries to limit the 
circumstances in which linking leads to liability, but nonetheless, 
the fact that you're saying it's illegal to make reference to 
information that resides somewhere else -- well, that's got some 
troubling implications for, among other things, the news media; if 
Salon, for example, wants to show its readers what all the fuss is 
about [with DeCSS], reporters could be pulled into court and asked 
why they decided to link to the information. I can imagine that there 
will be a lot of litigation over the intent of the press, and a lot 
reporters in court.  

Copyright 2000 Salon.com





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