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IP: Scrambled Signals (American Lawyer column)
From: David Farber <farber () cis upenn edu>
Date: Tue, 11 Apr 2000 19:27:34 -0400
X-Sender: >X-Sender: mnemonic@166.84.0.212
Date: Tue, 11 Apr 2000 16:39:42 -0400
To: farber () cis upenn edu
From: Mike Godwin <mnemonic () well com>
Scrambled Signals
By Mike Godwin
Column in the April 2000 issue of American Lawyer magazine
There are still plenty of battles left in the litigation between the
motion-picture industry and the individuals who have developed,
published or linked to the program that unlocks the encrypted
content of DVD movies. But the movie companies may have already won
the public-relations war. Which is a shame, because just about
everything they've said about these cases is misleading when it's
not just plain wrong.
The linchpin of these cases is a little program called DeCSS that
unlocks the movie industry's encryption of movie DVDs. In late
January a federal judge in New York preliminarily enjoined three
defendants who operated web sites that distributed information about
copying DVDs. One day later, a judge case in a California state
court granted similar relief against the defendants.
The two cases are different in some respects. The California case is
grounded trade secret law, while the New York case centers on the
"anti-circumvention" provisions of the new Digital Millennium
Copyright Act. What they have in common is that the movie industry
successfully characterized the defendants as would-be DVD pirates
and scofflaws. Jack Valenti, the chief executive of the Motion
Picture Association of America, and others have characterized the
cases as efforts to prevent "the theft of our intellectual property."
The problem is that the cases are not about the theft of
intellectual property, the defendants are not pirates, and the
development of the DeCSS program is not a trade-secret violation. It
may not even be a violation of the Digital Millennium Copyright Act.
No Pirates, No Copying, No Theft
DVD (the acronym stands for "digital versatile disc") is here to
stay. More than 4,000 movies now run on the new format since DVD
players became commercially available in the late 1990s, and more
are on the way. But the movie industry has long been concerned about
the risks posed by shipping movies in a digital medium like DVDs,
since it's theoretically possible to make perfect copies. To answer
the industry's concern, Matsushita Electric Industrial Co. and
Toshiba Corp. developed Content Scramble System, or CSS, the
scrambling program that DeCSS breaks through.
Critics of the movie industry's current litigation argue, however,
that CSS is not really about copying at all. David Wagner, a
cryptography expert and computer scientist at University of
California at Berkeley, for example, notes that commercial pirates
are already able to make illegal copies of DVD movies. They have the
hardware, technology, and capacity to create exact copies of the
discs.
Mom-and-pop pirates, on the other hand, have better things to do
with their hard drives and time. DVD movies are so huge-about five
to ten gigabytes-that copying them is impractical, and transmitting
them across the Internet is too time-consuming. It could take more
than a day with a high-bandwidth connection like a T1 line, and a
week or longer with a typical modem connection. Compared with the
dollar cost of buying a DVD movie-$25 or so-the opportunity costs of
becoming even a small-scale pirate, working out of his home, is too
great.
So if CSS isn't really relevant to the piracy question (commercial
pirates can already bypass it, and consumer would-be pirates will
just buy the movie), what's the fuss about? Critics of the
movie-industry litigation say these cases are less about copying and
more about controlling the market for DVD players. Commercial DVD
players are licensed to use CSS. These critics say the licensing
scheme for players is designed to enable moviemakers to segment and
control the market-ensuring that DVDs sold in the United States do
not work on DVD players in the Pacific Rim, for example. Not so
incidentally, the CSS technology also gives movies studios the
ability to impose conditions on player manufacturers-making it more
difficult to record a DVD movie onto a VCR tape, for example-in
possible violation of antitrust law.
But regardless of whether this theory of CSS's purpose is correct,
one thing is certainly clear-that DeCSS has not contributed in any
appreciable way to copyright infringement of DVDs. Unfortunately for
the defendants, the mere fact that there's no incipient copyright
infringement doesn't address the full range of legal arguments
arrayed against them. And fortunately for the plaintiffs, the
weaknesses in those legal arguments have thus far escaped the courts
that have been asked to issue the preliminary injunctions.
The worst of these theories is the trade-secret theory advanced in
the California case. As Mark Lemley, a Berkeley law professor who
specializes in intellectual property and Internet law, points out,
the basic rule of trade-secret law is simple: Once the trade secret
has been revealed, it is not unlawful to publish, disseminate, or
use. Yet no one-not even the plaintiffs-has made any showing that
defendants in these cases engaged in any original
theft-of-trade-secrets offense-all they've been doing, at most, is
publishing a secret that's already been blown. Moreover, the facts
of these cases suggest that no one stole a trade secret. Instead,
one or more of the holders of the secret unwittingly revealed parts
of it, and software researchers quickly took advantage of the
blunder.
The Linux Connection
To fully understand these cases, you need to understand the role of
the Linux/Open Source movement -- basically a worldwide network of
software researchers and developers laboring to construct a fully
functional Unix-like alternative to commercial operating systems
like Windows or the Mac OS. But if it turns out that Linux
programmers can't legally develop a DVD player, this will do much to
undermine any claim that Linux is a serious alternative to Microsoft.
While the Macintosh and Windows operating systems have DVD player
support, Linux and other "minority" operating systems do not. Linux
programmers, who typically develop noncommercial applications, have
sought to develop a software-based DVD player. In the absence of
Linux player, the DVD drives on systems running Linux are useless
for playing the majority of commercially recorded DVDs. Last fall
Linux developers "reverse engineered" CSS-essentially dissected it
to understand how it works-in order to create an open-source DVD
player.
The question that the New York court addressed is whether DeCSS, a
product of this reverse-engineering effort, is illegal under the
Digital Millennium Copyright Act. And unlike in the trade-secret
case on the other coast, there's at least a theoretical reason why
the movie companies may prevail. The DMCA, you see, was crafted in
part to express copyright holders' concerns that any technology they
used to limit copying or otherwise to control access to their
copyright works might be "circumvented" by pirates who figured out
such schemes. So, the DMCA added to the Copyright Act's
anti-infringement provisions a set of "anti-circumvention"
provisions. And one way to read the anti-circumvention provisions is
that they bar anyone from circumventing a copyright holder's
copy-protection or access-control scheme regardless of whether the
circumvention is in service of what otherwise would be a lawful use
of the copyrighted work. In other words, according to this reading,
the DMCA created a wholly new cause of action, against which the
traditional affirmative defenses in copyright infringement cases
(fair use and so on) do not apply!
But under the DMCA, it doesn't matter if you're circumventing CSS in
order to develop a DVD player that plays the DVD that you have paid
for on the Linux-running computer that you've also paid for. You've
still breaking the law and (depending on the facts) could wind up in
jail. And the same law seems to say that you have also broken the
law if you've published information that other people might use to
circumvent CSS. This reading of the DMCA is not uncontroversial, but
the New York court essentially adopted it in toto. With regard to
the New York court's reasoning, Michael Froomkin, a law professor at
the University of Miami, comments that "the literal reading of the
statute may be correct, but it doesn't make a lot of sense."
Froomkin notes that the anti-circumvention provisions were
supposedly aimed at copyright pirates. "It's unclear," he says,
whether using those provisions against software developers who just
want to create their own DVD players "was what Congress intended."
Lemley observes that the DMCA does provide a number of affirmative
defenses. Perhaps the key one is a convulted, abstruse provision
that allows reverse engineering when the owner of a computer program
wants to access elements of it to "achieve interoperability . . .
with other programs."
Judge Kaplan construed this passage in the New York case as
inapplicable in the DVD context, since the users of DeCSS were
facilitating access to a movie rather than to a program. It's at
least arguable, however, that in fact DeCSS is enabling access to a
program-the guts of CSS-in order to achieve interoperability with
CSS. As Wagner notes, you can't develop a DVD player that will play
CSS-encrypted DVDs without knowing how CSS works. One expects this
particular argument to be advanced by defendants as the New York
case proceeds to trial.
But that's a pretty subtle argument, and one that is not helped any
by the convoluted syntax of the statutory language. Defendants may
ultimately have to rely on broader arguments-either that the court's
overall reading of the DMCA is not what Congress intended, or that
the flat prohibition of most reverse engineering unconstitutionally
blocks fair use or other otherwise lawful uses of DVDs. And if the
court refuses to accept defendants' arguments, it may be time to go
back to Congress to get the DMCA amended or clarified.
But a successful court argument, or a successful appeal to Congress,
is contingent on one thing: whether the software researchers who
uncovered the workings of the CSS technology are perceived as
legitimate researchers and developers or as "pirates and thieves."
If the latter view prevails, not only the Linux/Open Source
movement, but also the software industry as a whole, will be a lot
poorer for it.
Mike Godwin is Senior Legal Editor of E-Commerce Law Weekly, and
author of Cyber Rights: Defending Free Speech in the Digital Age
(Times Books 1998).
--
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"I speak the password primeval .... I give the sign of democracy ...."
--Walt Whitman
Mike Godwin can be reached by phone at 202-721-8432.
His book, CYBER RIGHTS, can be ordered at
http://www.panix.com/~mnemonic .
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