Passionate Reactions to the DeCSS Decision Online

BOSTON (08/18/2000) - Online reaction has been voluminous and passionate since a federal court ruling Thursday that bars a hacker Web site from posting or linking De-Content Scrambling System (DeCSS) software, which decrypts DVDs (digital video discs).

The ruling, which denied all of defendant Eric Corley's claims, held that computer code, as free speech, could be subject to regulation, that some forms of linking are illegal, rebutted fair use arguments and upheld the controversial 1998 Digital Millennium Copyright Act (DMCA). [See "Judge Bars Linking in DVD Case," Aug. 17.]More than 1,000 posts have flooded message boards at open source software news site Slashdot.org since the ruling was posted. A typical Slashdot story receives 150-250 posts in the same amount of time, slightly more than 24 hours .

Slashdot and other open-source advocates feel strongly about the case because DeCSS was created to allow playing DVD movies on Linux-based computers.

Currently, there are no licensed DVD players for Linux, and DeCSS was built to allow owners of DVDs to watch them on their computers.

Opinions online have varied from outraged to resigned to happy. As might be expected, a good deal of anger has been directed at New York State District Court Judge Lewis Kaplan, who heard the case and issued the ruling. However, not all Slashdot users share a sense of anger. More than one anonymous poster argued that DeCSS was clearly intended to facilitate piracy and that its DVD viewing capabilities are only secondary.

Such users contend that DeCSS is being used by those who want something for nothing and that free speech does not allow free copying of other's work.

Despite being used for piracy, some claim DeCSS should be protected under the fair use doctrine of U.S. copyright law that allows some copyrighted materials to be disseminated under certain circumstances without permission of the author. However, fair use might not provide a shield for DeCSS.

In shaping the DMCA, the U.S. Congress allowed for fair uses that circumvent access protection measures (such as the Content Scrambling System, which DeCSS sidesteps), said Julie Cohen, associate law professor at Georgetown University, in Washington, D.C. At the same time, Congress made it impossible to exercise that aspect of fair use by making access to such technology illegal, she said.

The logic underlying the decision to deny DeCSS protection is equivalent to calling "the CD writer (recordable CD drive), the CD and the computer … 'piracy-assisting technology'," wrote "Guibaby" on Slashdot.

Cohen agreed, but with slight reservation.

Copyright owners, such as movie and music companies, have not sued the makers of CD-R (CD-recordable) drives or computers, not only because it would be a "political nightmare," but also because the definition of a circumvention technology under the DMCA is narrow enough so as not to allow that, she said.

Other questions have arisen, such as whether the structure of the Internet has been threatened because Kaplan's ruling bans the Web site, "2600: The Hacker Quarterly" from linking to Web pages that contain DeCSS with the intention to facilitate distribution of the DeCSS code.

That issue is particularly troubling, said Georgetown's Cohen, because a link is essentially an online version of speaking.

The Motion Picture Association of America (MPAA), the plaintiff in the suit, thinks otherwise. The MPAA does not oppose links, said Mark Litvack, the vice president and director of legal affairs and anti-piracy at the MPAA. Rather, the MPAA agrees with the judge's ruling that some links, by their nature and purpose, are illegal.

The MPAA, Litvack said, is "pleased that (its) position continues to be supported by the court" and is confident that it will win an appeal, if, as seems likely, one is filed by Corley.

Free speech is at the heart of the case. The defense claimed that publishing source code was a free speech issue, and that has been one of the burning issues discussed online in the wake of the ruling. The judge disagreed that free speech is at stake, as did the MPAA. Litvack said that code, like speech, shouldn't always be protected.

Feeling that their right to free speech has been abridged by the ruling, many online have called for campaigns of civil disobedience to protest the ruling.

"And as of this ruling, the United States copyright laws contravene the Constitution and are therefore null and void. You may choose to obey them out of fear, but there is no longer any moral basis or reason for doing so," said one message posted at Slashdot.org.

DeCSS is still available all over the Internet. Google Inc., a leading search engine, returned 6,460 hits for the search string "DeCSS Code." Out of 22 sites that claimed to have the code, 12 still made it available for downloading on Thursday, although 10 had been removed completely.

DeCSS's illegality may not be its doom, as "Kwikymart" wrote on Slashdot: "Who cares who wins or loses? I know damn well that DeCSS is never going away unless the world explodes in a giant fireball … They may have one the battle but they will never win the war."

Online discussions of the issue can be found at http://cryptome.org and http://www.slashdot.org/. Judge Kaplan's ruling is available online at http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08117.PDF and his judgment at http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08118.PDF

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