DeCSS Ruling Sends Chilling Message On Free Speech & Fundamental Concepts Of The Internet

Last week, a hacker named Eric Corely lost an important case to a coalition of eight giant motion picture studios attempting to suppress the distribution of DVD copy protection cracking software. The case is full of the type of absurdities that commonly arise when the digitally networked world collides with the vested interests of the Old Economy.

One frightening aspect of the ruling by US District Judge Lewis Kaplan appears to be the removal of First Amendment protection from hyperlinks. A less controversial aspect limits the First Amendment protection bestowed upon source codes and their authors. And itis all done in the name of protecting the property rights and monopolies enjoyed by a few billion dollar mass media corporations.

Hereis an excerpt from the courtis opinion to sets the stage:

Late last year, computer hackers devised a computer program called DeCSS that circumvents the CSS (Content Scramble System) protection system and allows CSS-protected motion pictures to be copied and played on devices that lack the licensed decryption technology. Defendants quickly posted DeCSS on their Internet web sites, thus making it readily available to much of the world. Plaintiffs promptly [sued] under the Digital Millennium Copyright Act (the "DMCA") to enjoin defendants from posting DeCSS and to prevent them from electronically "linking" their sites to others that post DeCSS. Defendants responded with what they termed "electronic civil disobedience" —increasing their efforts to link their web site to a large number of others that continue to make DeCSS available. Defendants contend that their actions do not violate the DMCA and, in any case, the DMCA, as applied to computer programs, or code, violates the First Amendment.

Defenders of the DeCSS utility also claim applying the DMCA to this case would infringe upon the "fair use" exception in the DMCA, which allows consumers to make copies for their own convenience.

CSS protection for DVDs does seem to limit the consumeris ability to exercise fair use in ways that would have been unacceptable with earlier analog mediums such as record albums, audio cassette and videotapes.

Motion picture studios argue that the greater protection afforded to digital mediums is necessary because copies of digital recordings can be made without the degradation of quality that analog mediums are subject to. One DVD could be exponentially reproduced to supply pirated copies to an entire nation with a speed and quality not possible in the good old analog days. Of course, now-a-days analog content can be digitized and distributed online or burnt into DVD as well, so this argument is really irrelevant.

DeCSS defendants in this case also argued that, "computer code, regardless of its function, is ispeechi entitled to maximum constitutional protection and that computer code therefore essentially is exempt from regulation by government."

The court replied that the hackeris expressive speech argument is "baseless".

"Computer code is expressive," said the court. "To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassinis action."

The court went on to claim, "The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact."

Thatis all fine and dandy, but the court went much further than just banning DeCSS code. According to Wired News,

U.S. District Judge Lewis Kaplan last week surprised few courtroom observers when he sided with the motion picture industry and ordered 2600 Magazine to delete a DVD-descrambling program from its website.

But almost nobody expected Kaplan to agree with Hollywoodis request to ban the hacker-zine from even linking to the DeCSS utility.

Kaplanis ruling, legal experts say, appears to be an unprecedented expansion of traditional copyright law. No longer is it merely illegal to distribute a potentially infringing computer program -- but now even linking to someone elseis copy could be verboten.

That could create legal problems for reporters and editors at sites like Wired News, Slashdot, and CNETis, who have included links to DeCSS in news stories as part of their coverage of the lawsuit.