SCN: MPAA

[Steve]

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

MPAA v. 2600: Access to Information is Not a Crime  

by Ben Berkowitz  
Online Journalism Review


It is a principle well established in this country that the press is free 
to publish what it likes, with small constraints for libel and issues of 
national security. Providing access to information is not a crime, 
and is in fact a cornerstone of American democracy. Which is why 
the lawsuit by the Motion Picture Association of America against 
2600 is frighteningly dangerous.  

The trouble stems from a small program called DeCSS, which 
decodes the Content Scramble System used to keep DVDs from 
being played on unauthorized machines. A group of programmers 
looking for a way to play DVDs on Linux systems found that they 
could get around the CSS and copy movies directly to disk. 
Needlessly to say, the program was, and continues to be, a huge 
hit. While not as big as Napster, it still found a huge market.  

The MPAA, guardian of all that is good and right and profitable for 
themselves, does not like DeCSS. It keeps money out of its pockets 
and those of its members. Granted, DeCSS is a way to get around 
copyright protections, which arguably violates the Digital Millennium 
Copyright Act. In January, federal judge Lewis Kaplan enjoined three 
sites from posting the program for just that reason. Separately, a 
California judge issued a similar injunction against the posting of 
DeCSS, although he explicitly refused to enjoin linking to the 
program on another site, saying "such an order is overbroad and 
extremely burdensome."  

Two of the of Webmasters - Shawn Reimerdes and Roman Kazan - 
gave in and removed the program from their sites. The third, 
however, took a stand. Eric Corley, better known by the pseudonym 
Emmanuel Goldstein, is the editor of 2600, which calls itself "The 
Hacker Quarterly." Founded years ago as a print publication, the 
magazine also has a strong Web presence. Corley is well-known as 
a journalist, not a hacker. He posted the program on 2600 as 
information for the hacker community, not because he is trying to 
single-handedly destroy the movie industry. DeCSS is information 
for information's sake, the theory goes, and was not born or 
conceived of malice.  

Since Kaplan said nothing about linking, and Judge Elfving's order 
in California specifically protected linking, Corley proceeded to do 
just that to dozens of sites that carry the program, or code for the 
program, or links to the program. The New York times, in an article 
on the issue from April 28, linked to 2600's DeCSS links page. 
Numerous other people have, too. It has become an act of defiance, 
done for its own sake, much like pages that allow the emailing of 
cryptography code overseas just to break the government's arms 
export restrictions.  

The MPAA has responded by filing suit seeking to block 2600, or 
anyone for that matter, from linking to sites carrying DeCSS. The 
people paying Corley's legal bills, the Electronic Frontier 
Foundation, decided to fight fire with a whole lot of fire and hired 
Martin Garbus to defend Corley. Garbus is a New York-based First 
Amendment lawyer who has a 20-0 record before the Supreme Court. 

In other words, he is the MPAA's worst nightmare.  

Motions are currently flying back and forth to disqualify Garbus, on 
the basis of a small conflict of interest that has no bearing on the 
2600 case per se. Of course, the lawyers have in a sense been their 
own worst nightmare; one genius representing the DVD Copy Control 
Association in the California case included the DeCSS source code 
as an exhibit to a January filing. The judge eventually ordered the 
record sealed, but a copy made its way online before then.  

Someone even decided to be cute and created another program 
called DeCSS that strips Cascading Style Sheets (CSS) from Web 
pages. When the MPAA searches the Net looking for copies of 
DeCSS to bust, they now have to go to the extra effort of figuring out 
which DeCSS it is.  

What if I'm a musician and I link to an old college buddy's home 
page, a buddy who just happens to catalog thousands of pirate 
MP3s on one of his pages? Am I responsible for dissemination of 
illegally copied information? What if a Catholic Church site links to 
an anti-abortion advocacy group that makes the suggestion that 
abortion doctors be assassinated? Is the Church guilty of being an 
accessory before the fact?  

This is not defiance for its own sake. It is nothing less than 
defending the fundamental right to free access to information. 2600 
is doing nothing wrong by merely providing an access list. It is 
especially acceptable in light of the fact that lawyers for the 
association most concerned with stopping DeCSS actually made the 
source code for the software a matter of public record. If Judge 
Kaplan decides that the links are illegal, he then makes 
Webmasters responsible for the content of any page to which they 
link.  

Such a ruling would chill the free press. 2600 is a respected 
magazine. It is providing information on where to get a product that 
has not yet been completely banned as illegal. Banning it from 
telling people where to get DeCSS is like saying a newspaper can't 
talk about where to go in Mexico to get laetrile. It is plainly unfair. 
The Village Voice article on Garbus and Corley indicates that the 
New York Times may file an amicus curiae brief on 2600's behalf. 
Such is the obvious problem with the MPAA's suit, that the most 
respected newspaper in America is willing to file a brief in support of 
a relatively small hacker magazine.  

Whether or not the courts ever firmly and permanently ban DeCSS 
(which they probably will) is irrelevant. The point here is that the 
MPAA, in its zealous defense of artist rights and financial riches, is 
threatening basic American freedoms. If Web sites are found liable 
for the content they link to, it can't be long after before movies are 
found liable for the content they portray. The MPAA should be careful 
what it wishes for.

Copyright 2000 Online Journalism Review




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