July 14, 2000
By CARL S. KAPLAN
DVD Case Will Test Reach of Digital Copyright Law
n important Internet case pitting Hollywood's right to control access to its digital wares against the traditional rights to fair use of copyright and free speech is scheduled to get under way in federal court in Manhattan on Monday.
The case, closely watched by Internet legal experts, computer hackers and entertainment executives, revolves around an underground computer program, DeCSS, which, Hollywood executives say, allows users to bypass the security system of DVD movie disks, thus paving the way to unauthorized viewing, copying and online transmission of movies.
The plaintiffs in the case are eight leading Hollywood movie studios, including Universal, Paramount, Disney and Time Warner. They are suing Eric Corley, editor and publisher of a print and Web publication, "2600: The Hacker Quarterly," for posting the DeCSS software on his Web site and linking to other Web sites that post it.
The studios say that Corley's distribution of the software, in itself, violates a federal law, the Digital Millennium Copyright Act of 1998 (DMCA). A controversial section of that law makes it illegal for anyone to offer to the public a device that is primarily intended to circumvent a technological barrier controlling access to a copyright-protected work.
The plaintiffs in the case are seeking a court order banning Corley from posting, linking to, or otherwise "trafficking" in the DeCSS code. Two other defendants named in the case settled with the movie studios earlier and agreed not to post the software. Related cases against other DeCSS defendants are pending in Connecticut and California.
Supporters of the movie studios say that DeCSS is a piracy tool and a threat to the growth of the film industry. In addition, they say that without the anti-circumvention protection afforded by the copyright act, copyright holders would be reluctant to make encrypted works available in a world where digital information is easily duplicated.
Lawyers for Corley, who is also known by his online name, Emmanuel Goldstein, have argued in legal papers and in interviews that DeCSS is not a piracy tool, but merely a way to help fans of the Linux operating system watch DVD movies they already own on their computers. They say that it would be improper to interpret the DMCA so narrowly as to prohibit the posting of software that has legitimate uses. They also assert that any court order banning links to the software would violate the First Amendment
Yochai Benkler, a law professor and Internet expert at New York University who has submitted a friend-of-the-court brief in support of Corley, said in an interview that the DeCSS case is "immensely important."
"This case is a well-focused presentation of the question of whether or not the DMCA created a new right to control access to a work if the work is encoded and encrypted in digital media," Benkler said. "No one has made the argument so audaciously as the movie studios have done here, that the DMCA has created that new right. Up until now, there has been no general right to control the reading of a book or to control access to a work."
"If the argument flies," Benkler said, "there will be a completely new theory of copyright." Under the plaintiffs' view of the law, he said, a young student could not use DeCSS to decrypt a DVD in order to copy ten seconds of the movie for use in a multimedia report at school. Yet such a "fair use" right to quote from the movie exists in non-digital media, he said.
Despite the technical jargon in the legal papers, the facts of the case, Universal City Studios Inc. v. Eric Corley et. al, are relatively straightforward.
Movies that are released in the DVD format are protected by a security system called the Contents Scramble System (CSS), which encrypts the movie data embedded in the disks. They may only be decrypted and played back for viewing on a DVD player that has a licensed CSS key.
Computers running the Windows and Macintosh operating systems that come with DVD players have such a key built in. But users of Linux, a free operating system patched together by volunteers and distributed over the Internet, were unable to view DVD movies on their machines until programmers in Norway created DeCSS and put it online.
The eight movie studios filed suit in federal court in Manhattan in January, saying that the defendants had wrongly posted the DeCSS program on Web sites they operated. Later, they filed an amended complaint objecting to the list of hyperlinks Corley created pointing to other sites distributing the code.
So far the defense, financed by the Electronic Frontier Foundation and led by Martin Garbus, a well-known New York trial lawyer and First Amendment specialist, has had a difficult time. Early in the case, Judge Lewis A. Kaplan sided with the movie studios and granted them a preliminary injunction, barring Corley from posting the code.
Although Judge Kaplan appeared to agree with Hollywood that DeCSS is essentially a piracy tool, he said in a written opinion that the purpose of the code really did not matter. Under his interpretation of the 1998 federal law, he said that as long as DeCSS circumvented the movie encryption system, the distribution of it probably violated the copyright act.
Things got even tougher for the defense late last month when Judge Kaplan, during a pre-trial hearing, said that he viewed the issues in the upcoming trial as "narrow and well-defined." He added that the core questions at trial would be whether the DeCSS code circumvents CSS, whether DeCSS was primarily designed and produced for that purpose and whether Corley is entitled to some narrow exemptions under the copyright act.
Significantly, Judge Kaplan did not appear to be receptive to the defense's argument that the copyright act should be interpreted broadly to protect fair use privileges.
Garbus conceded in an interview this week that it might be difficult for him to prevail at trial. Already, he said, he is mentally preparing for an appeal to the United States Court of Appeals for the Second Circuit.
"The first issue at trial is, does DeCSS circumvent the DVD encryption technology?" Garbus said. "The second question is, if it does circumvent, is that the end of the case? Or do you consider whether the circumvention was for a legitimate purpose?"
If Judge Kaplan continues to take a narrow view of the issues in the case, then "it's going to be a three minute trial," Garbus said.
Lawyers for the movie studios declined to comment on the case. In their legal papers, however, they argued that throughout the pre-trial stage the defendant's arguments were "less about what the law is than what they contend it should be." Such arguments, they added, "are more properly addressed to Congress than to this court."
The case has been fiercely litigated, even by New York standards. At one point, Judge Kaplan referred to lawyers for both sides as "scorpions in a bottle."
CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.
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Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.
