Judge Blocks Site from Distributing Software

FRAMINGHAM (08/18/2000) - Eight movie companies have won the first round in a court fight against the publishers of a hacking magazine that offered a free program that has the potential to decode and copy DVD movies.

In a 93-page decision released Thursday, U.S. District Judge Lewis Kaplan in New York ruled that 2600: The Hacker Quarterly, is banned from posting or linking to the DeCSS software program that decrypts DVD player software and allows the unauthorized copying of DVD movies.

The ruling was a victory for the eight movie studios that sued 2600: The Hacker Quarterly in January for posting DeCSS, or content scramble system, on its Web site. The plaintiffs brought the action under the Digital Millennium Copyright Act (DMCA), which bans offering or providing technology that may be used to bypass technological means of controlling access to copyrighted works.

Defendants argued that this interpretation of the law would prohibit the fair use of copyrighted materials and hamper established circumvention of access control measures to reverse engineer and develop interoperable software programs. But Kaplan equated DeCSS with a destructive computer virus that had the potential to damage the nation's economy.

"In an era where the transmission of computer viruses -- which like DeCSS, are simply computer code and thus to some degree expressive -- can disable systems upon which the nation depends and in which other computer code is also capable of inflicting other harm, society must be able to regulate the use and dissemination of code in appropriate circumstances," Kaplan said in his decision.

The ruling could have wider impact on other media outlets or Web site operators, many of whom have posted links to the Web site. It could also put a chill on the development of the LiViD project, which is developing Linux-based DVD player software using DeCSS code.

The San Francisco-based Electronic Frontier Foundation, which supported the defense of 2600 publisher Eric Corey, said it would appeal the decision.

In a prepared statement, lead defense attorney Martin Garbus said the decision in favor of the plaintiffs was expected.

"We understood that this was an issue that has to be resolved by the Supreme Court," he said. "The judge's First Amendment analysis is wrong. Judge Kaplan's decision, if allowed to stand, and it will not, would cripple the free exchange of information on the Internet."

Defense co-counsel David Y. Atlas said the magazine will likely appeal Kaplan's ruling based on several of the judge's legal interpretations.

"I think the fair use issues are really, really important," Atlas said. The decision "really guts the fair use doctrine."

"It's unfortunate that the judge gave short shrift to the First Amendment issues."

Scott P. Cooper, an attorney for the plaintiffs, lauded the judge's decision, calling it "highly unlikely that serious issues could be raised" by the defense in an appeal.

"We prevailed on every factual issue at trial," Cooper said.

Jack Valenti, president of the Motion Picture Association of America, which supported the lawsuit, long contended that DeCSS was simply a tool for piracy.

"Today's landmark decision nailed down an indispensable constitutional and congressional truth: It's wrong to help others steal creative works," said Valenti in a statement. "The court's ruling is a victory for consumers and for legitimate technology."

Ken Dort, an attorney specializing in electronic law at the Chicago firm of Gordon & Glickson LLC, today praised the judge's ruling.

"The judge found as a matter of law that the code is essentially nothing more than a tool to violate the copyright protections of the DVD owners," Dort said.

"I agree wholeheartedly with the judge's decision."

DeCSS intended for DVD players

Norwegian teen-ager Jon Johansen and two pseudonymous colleagues he met over the Internet reverse-engineered a licensed DVD player in September 1999 and discovered the CSS encryption algorithm and keys. Johansen testified that he created DeCSS to develop a Linux-based DVD playback system, but the plaintiffs charged that the purpose of the utility was the illegal copying of DVDs. The utility is now widely available on the Internet, where it is mirrored on sites around the world.

DeCSS circumvents the CSS protection system that scrambles the audio and video content on DVDs in order to prevent the disks from being played on unlicensed players. But Kaplan argued that DeCSS has already "gravely injured" the plaintiffs.

According to Kaplan, the ability of DeCSS to copy and distribute motion pictures on DVDs, CD-ROMs and via the Internet threatens to reduce the studio's revenue from the sale and rental of DVDs. He insists that it also threatens to impede new, potentially lucrative initiatives for the distribution of motion pictures in digital form, such as Internet video-on-demand.

Kaplan found that "there is little room for doubting" that wide dissemination of DeCSS will injure or destroy the movie industry's ability to distribute its copyrighted products on DVDs and undermine the ability to sell their products to the home video market. According to the order, anyone "acting in concert" with 2600 is barred from distributing or even linking to software that circumvents DVD protection systems.

"Any impact on the dissemination of programmers' ideas is purely incidental to the overriding concerns of promoting the distribution of copyrighted works in digital form while at the same time protecting those works from piracy and other violations of the exclusive rights of copyright holders," the judge said.

"Kaplan has specifically stated that the rights of copyright holders override the rights of programmers from meaningfully disseminating ideas related to this cryptographic system," said Ian Goldberg, chief scientist at Zero-Knowledge Systems Inc., a Montreal-based Internet privacy company. "Although he found that the defendants in this case were not able to utilize the 'cryptographic research' exception to the DMCA, reading his opinion does not reassure me that I, as a cryptographic researcher, would be allowed to publish this code online, even for the explicit purpose of discussing the cryptographic content with other researchers."

Tim Skorick, a security manager for a Denver-based Internet service provider, said he believed the ruling is unenforceable. "The decision is not going to prevent what's going to happen in response to the ruling itself: the DeCSS code suddenly appearing everywhere immediately because of this overwhelming hubris," Skorick said.

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