SCN: DeCSS

[Steve]

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=======================

An Interview with Martin Garbus

(FEED)---Early this year, the Electronic Frontier Foundation 
announced that Martin Garbus would be the lead litigator in its 
attempt to block a gag order that prevented the hacker magazine 
2600 from discussing DeCSS, a software program that circumvents 
the copyright protection built into all DVDs. The original injunction 
itself, filed by the powerful Motion Picture Association of America 
and widely denounced by the Open Source and cryptography 
community, had already attracted the attention of the mainstream 
media, but Garbus' arrival on the scene brought the case to a whole 
new level -- and arguably marked a new phase in one of the most 
interesting legal careers of our time.  

Described recently by the Village Voice as the closest thing to a 
"modern-day Daniel Webster," Garbus has a long and unparalleled 
record as an advocate for first amendment rights -- dating back to 
his work for Lenny Bruce and Timothy Leary in the sixties. Garbus 
famously harbored the Pentagon Papers in his apartment during the 
early 1970s, and played a key role in the Satanic Verses affair in the 
late eighties. The DeCSS case stands as one of Garbus' most high-
profile forays into the digital world, and it's not hard to see why the 
dispute caught his attention: the MPAA gag order has implications 
for digital-age fair-use issues, for the legal status of hypertext 
linking, and even the intersection point between operating systems 
and antitrust law. "A different legal system is going to have to be 
constructed to deal with these issues on the Web," Garbus says. 
"And this case is going to play a large part in that construction."  

FEED: What's the evaluation process when you decide to take on a 
case like this?  

GARBUS: I think you decide based on the significance of the case: 
What are the values that get involved? What are the social values? 
Why is it worth spending the time and energy? And it seems to me 
what this case basically deals with is balancing First Amendment 
values -- the right to an open Internet, the right to free speech, the 
right to the preservation of fair use with software materials -- against 
the claims of the people like the MPAA that permitting fair use just 
allows for piracy and the bringing down of their industry. I think it's 
the question of how you achieve that balance, protecting the 
artist/publishers who are entitled to be paid for the work that they do, 
while on the other hand making sure that other people can use what 
is appropriate for them. It's a balancing act.  

I also think what the case will probably deal with or will affect is how 
the entertainment business or how the media business will change 
because of this new technology. Generally what happens is the law 
sets up a cage under which the technologies operate. Here the 
technology is outstripping the law, and the law is going to have to 
adjust somewhat to the technology. Law is based on two hundred 
years of precedence, and I think the precedent is the structure, and 
I'm not so sure that that structure can handle these demands. So the 
question is how do you build new structures, and what are those 
new structures going to be. And this is going to be the first case to 
define those.  

FEED: How would you distinguish the DeCSS case from the Napster 
disputes of late?  

GARBUS: The most important difference is that there's been no 
piracy that they've found through the use of the DeCSS. There are a 
lot of reasons why that's so: because it takes so long to download, 
etc., etc. Now, if there's no piracy, there's absolutely no reason why 
this DeCSS shouldn't be discussed, explained, posted. If, in fact, 
there was substantial piracy coming from it -- or the potential for 
enormous piracy -- then one might come to a different conclusion. 
But clearly here, based on all the testimony to date, there has to be 
a better balance. There was a case here -- the Betamax case -- 
where the movie companies came in, and they said you shouldn't 
have VCRs. You shouldn't be able to copy movies that come off TV 
because that's an infringement. And the court said, "Yes, it may be 
an infringement. The question is, is it a substantial infringement, 
and what are the other values that it serves by permitting that 
infringement?"  

The other thing this case is about, which is very interesting to me, is 
that it's kind of going to be an Internet legal trial in the sense that 
some of the people on the Internet and some people who deal with 
the Internet are very interested in this particular trial -- and every 
document, witness's word, judge's ruling, and lawyer's call will be 
on the Internet within a day. Now, a federal court -- such as this court 
with Judge Kaplan -- is closed to cameras, but can't be closed to the 
Internet. There's going to be this extraordinary high-stakes battle for 
the control of the Internet on the Internet. In the sense that O. J. 
Simpson was the first TV trial, this becomes in a peculiar way the 
first documented Internet trial.  

FEED: Now, tell me if I'm getting this correctly. It seems to me that 
there are three layers to free speech elements of this case. There is 
the fair use element, which is that the technology itself enables 
people to take small samples from DVDs and "quote" them 
effectively in their work. There's the right of the cryptography 
community to discuss techniques of getting through encryption 
schemes in some kind of public way. And then there's also a 
question, if I understand it correctly, of people linking to pages 
where these things are discussed.  

GARBUS: Exactly. Right now the MPAA has got an order from the 
court which makes it possible to stop the posting of the DeCSS. The 
MPAA has now made a motion to expand the injunction to include 
linking. Now, the New York Times has talked about this case on its 
Web site. The New York Times has linked when it talks about the 
right to carry the DeCSS. Under the logic of this case, if you ban 
linking, you can stop places like the New York Times from doing 
that. The Associated Press, both in its pieces of paper and its Web 
site, has also referred to linking sites. Now, the New York Times is 
allowed to say that crack is being bought on 120th Street -- a 
different kind of linking -- without being told that it can't say that 
because it's going to be a participant in the crime that ultimately 
occurs. So I think the linking and posting, while separate issues, are 
related. If you now went to the Disney Infoseek site, you would find 
references to DeCSS -- you would get through that site the exact 
thing that Disney's trying to stop in this suit. You would find that the 
search engines that are owned by these very plaintiffs do exactly 
the same thing that they're trying to stop. They link. What the MPAA 
is doing is trying to stop certain people from linking.  

FEED: It seems to me like this has been an issue from the early 
days of the Web: Linking itself as a technology has challenged a lot 
of our assumptions about the legal status of copyright and free 
speech, and so on. And we've still not figured out how to handle it.  

GARBUS: Right. I think nobody has quite figured it out. What 
happens if you link into the Coca-Cola code, and you know that 
everybody can get that secret formula? Is Coca-Cola entitled to 
protection? We do have trade-secret laws. My estimate is that there 
probably have been three hundred thousand downloads of the 
DeCSS now in the United States. Now, once that's out there -- putting 
aside the question of whether it should be out there -- how do you 
put it back? How do you enforce trade secret laws? A different legal 
system is going to have to be constructed to deal with these issues 
on the Web. And this case is going to play a large part in that 
construction.  

FEED: Is there a case from your past that this most resembles, or 
does it seem very different because of all the technological issues?  

GARBUS: I think the technology makes it really different. Take the 
matter of operating systems -- there's another and very separate 
issue that you have with the Linux operating system. One of the 
reasons that there's so much interest in the DeCSS is that DVDs are 
not yet licensed to play on the Linux operating system. Now, to 
bring us back to the Betamax case, is Linux like a VCR? Can the 
motion-picture industry control distribution from the very beginning 
to the very end? Maybe the only platforms that can play DVD are 
those that pay the licensing fees. Or can you have other systems? 
Is that a violation of antitrust? Years ago, they made the motion-
picture studios give up their control over theaters because they 
found it was a violation of antitrust. There are similar issues here.  

FEED: Obviously the objection in terms of the piracy question is that 
the technology and the bandwidth is expanding so fast that in a few 
years software like DeCSS will enable widespread piracy. I mean, 
you look at the case of Napster -- three years ago, what goes on now 
with Napster and audio files was impossible because downloading a 
three megabyte file was ridiculously slow over a 14k modem. But 
now it takes thirty seconds.  

GARBUS: I think that this process of copying data will always be 
longer and more expensive than traditional pirating methods. But 
one really can't project out until the end of time. Let's assume that at 
the end of the year, one percent of the total piracy is caused by the 
DeCSS, and let's presume that the discussion is there are First 
Amendment values with respect to the discussion of the DeCSS. 
How do you balance that? Now, in the Betamax case, the court did 
balance it. They said there will be infringements, but we don't look 
upon that as substantial infringement. We don't look upon that as 
infringement sufficient to override, let's say, a fair-use defense. So I 
don't rule out the possibility of piracy. I know enough now about the 
way things are copied to believe that, no matter how good the 
machinery ever got, there would be faster and more inexpensive 
ways. But as of today, nobody that I have spoken to can claim that 
any particular movie that was ever shown on the Internet ever came 
off a DVD, and nobody is even claiming that.  

But in the end, I think Napster was too difficult a case for the court to 
accept at this time. Our case may be too difficult for the court to 
accept at this time. Piracy has a very large and powerful meaning. In 
the Rio case, a witness testified about the negative and positive 
effect of piracy. I don't think anybody believed it. No one wants to 
hear it. In the Napster case, there was -- if you want to use that word -
- piracy. People were downloading files; you had ten million 
criminals. I think the problem is with the DeCSS if you have ten 
million criminals, what do you do then? And the other issue is how 
quickly the copyright holders have to move. Look at what happens in 
something like this MPAA case: A small group of people find out 
about these potential violations, and they bring a lawsuit. And then 
there's an extraordinary proliferation. Probably if the MPAA had left 
it alone, fewer people would have heard about it. If the MPAA weren't 
claiming that you could make these wonderful copies, that people 
were making copies, then I think most people would have left it 
alone. So I think that what this case may teach the MPAA and other 
copyright holders is that you can exacerbate a situation by trying to 
stop something that really is not affecting you.  

Copyright 2000 FEED Inc.





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