Will 2600 Have to Desist with DeCSS?
By Antonette Goroch
from the May 21, 2001 issue of Broadband Week
A key and controversial provision of the Digital Millennium Copyright Act (DMCA) faces renewed scrutiny this month, as the Second Circuit Court of Appeals considers both the legality of the DVD movie-cracking code, DeCSS, and the legality of offering it for download over the Internet.
The Motion Picture Association of America sued Eric Corley, the publisher of the online hacker journal 2600 Magazine, in January after he posted DeCSS on his Web site and linked to other sites distributing the program.
Corley said he wanted to make the program available to users of the Linux operating system, who could not play store-bought DVDs on their computers without first breaking their digital lock, the CSS (Content Scramble System). DVD's with CSS work on the Windows operating system, but not on Linux.
While this may be the case, a computer with the DeCSS utility can use it to break the CSS code in order for movies in DVD format to be decrypted and illegally copied onto a computer's hard-drive for further distribution over the Internet or otherwise, in perfect, digital format.
At issue is whether or not there are any "fair uses" of the DeCSS code, such as the one Corley describes, allowed within the DMCA, or whether it is simply an instrument of copyright infringement as the MPAA says.
The DMCA, passed by Congress in October 1998, strengthened the protection of copyrighted materials in digital formats, such as motion pictures on DVDs, by outlawing the manufacture, importation or distribution of devices, programs or services that circumvent technical protection measures that restrict access to or prevent infringement (i.e., copying) of copyrighted works.
In a key ruling last August, a lower court issued an injunction against 2600, saying that DeCSS did constitute a copyright infringing device without any regard for its possible non-infringing uses.
Kathleen Sullivan, dean of Stanford University's law school, however, argued for Corley and 2600 on May 1, urging a three-judge panel to reverse the lower court's decision. "It's over-inclusive," she said. "It stops fair use in digital form."
Sullivan pointed out in her oral arguments that the descrambling program isn't solely used for illegal purposes by online movie pirates. She cited one example of a colorblind DVD owner, who might download a copy in order to alter the movie's color pixels for easier viewing. The law, she said, "stops innocent users."
But the combination of unencrypted digital content and its possible distribution over the Internet has potential broadband content providers seeking the most stringent interpretations of the DMCA. This has led to a wide array of interest groups backing the lower court's ruling, including the National Football League, Major League Baseball and the Screen Actors Guild.
Charles Sims, representing the movie studios, called the descrambling program "a danger of the digital age." Placing the code on a Web site is "analogous to the publication of a bank vault combination in a national newspaper," he said.
Indeed, the DeCSS technology became even more disturbing to large copyright holders like the MPAA with the advent of a second technology called DivX (not to be confused with Divx, the pay-per-use DVD technology developed-and ultimately dropped two years ago-by Circuit City and several other companies), which allows DVD content to be compressed to a fifth of its original size. Called the equivalent of MP3 for movies, DivX can cut the download/file transfer time of a full length feature film to an hour (compared to overnight), over today's broadband Internet connections. This promises to change in "Internet time" as broadband connections become faster and more ubiquitous.
Sims argued that the disputed provisions of the 1998 copyright law are necessary to "make the Napsterization of motion pictures less likely," referring to the music industry's experience with Napster, the popular peer-to-peer, music swapping service. Without the 1998 copyright act, he said, Hollywood would have little motivation to distribute its movies in digital form.
The hearing is one of the final steps in the appeals process. Both sides had until May 10 to submit a filing clarifying some answers to the questions the judges asked Tuesday. The court didn't indicate when it would hand down a decision, which some observers say could take six months or longer.
|
