DeCSS Ruling Threatens Freedom

So long, soapbox speeches on the town square. Farewell, petitioners of the government. Adios, freedom of the press.

Before it's too late, I'd better get this out there:

z)[$_%8]}(16..271);if((@a=unx"C*",$_)[20]&48){$h=5;$_=unxb24,join"",@b=map{xB8,unxb8,chr($_^$a[$h+84])}@ARGV;s/...$/1$&/;$d=unxV,xb25,$_;$e=256|(ord$b[4])<>8^($f

What you are looking at is a small segment of a computer program that will decode a DVD, making it possible to copy your digital movies on your home computer. The big deal with this seemingly nonsensical string of numbers and letters is that I could go to federal prison for publishing it.

Like I said, so long, First Amendment.

The trouble started last year when 2600, a hacker `zine, tried to publish a similar DVD-decoding program, called DeCSS, on its Web site. Almost immediately, the Motion Picture Association of America hauled 2600 into court. The MPAA's first step was to get a preliminary injunction against 2600, barring it from publishing DeCSS or even linking to another Web site where the program was posted.

Next, during the hearing before U.S. District Judge Lewis Kaplan, the MPAA tried to have the proceedings sealed. The MPAA asked the judge to forbid members of the press from reporting on some aspects of the trial. The MPAA wanted to make sure their dirty work went down in secret. Luckily, in his sole concession to free speech during the trail, Judge Kaplan ruled against the MPAA's request to hide their actions from the media.

The basis for MPAA's day in court was a controversial law, the Digital Millennium Copyright Act (DMCA) of 1998. This law has many provisions, the most oppressive of which center on the control of copyrights. According to an article in The New York Times, the DMCA "not only makes it illegal to photocopy and sell a copyrighted book, but also to simply tell someone how to open and read the book without the publishers authorization." In other words, while the consuming public can't steal copyrights -- nothing new with that -- now they can't own, possess or distribute any device that will evade copyright measures.

This provision raises legitimate concerns about the "fair use" ramifications of the act -- imagine if students had to pay a fee every time they wanted to use a quote from a book in a research paper just because the book was on a CD as opposed to paper. Sound far- fetched? Not under the DMCA.

Preliminary injunction in hand, the MPAA then sought to permanently bar 2600 from discussing DeCSS. Under the MPAA's nightmarish and hysterical scenario, consumers would merrily download any movie they wanted for free off the Net. The MPAA didn't seem to care that a recent Google search turned up almost 100,000 links to DeCSS on the Internet.

The MPAA's lawyers have refused to answer if The New York Times, Wired Magazine and many other "mainstream" news outlets that had linked to DeCSS on their Web sites would eventually be sued. The MPAA doesn't like to talk about the fact that one of their main witnesses took more than six hours to copy a DVD. It never occurred to the MPAA that the decision in this case was essentially useless.

Carnegie Mellon University computer science Professor David Touretzky testified for 2600 at the trial. He claimed that computer code should be protected speech because as a computer scientist there are some ideas that he is able to express only through the use of code. He also pointed out that DeCSS could be expressed in many different ways. There's the Windows executable code that's the subject of the trial, but this is not the only way a DVD could be de-scrambled. It is possible to copy the source code for the program onto a T-shirt, type the code into your computer and run the program. It is possible to write the same de-scrambling program in the perl programming language, an excerpt of which is printed above. A knowledgeable computer scientist could write a plain-English version of the program, or he could draw up a flow chart of program's routines and structure.

Would the court ban T-shirts, hauling kids off to jail for dressing in violation of federal law? Would Judge Kaplan burn flow charts in his courtroom? Touretzky argued that outlawing DeCSS would in no way prevent the copying of DVDs, only harm the legitimate speech rights of the press and computer scientists.

Judge Kaplan was unmoved. Comparing the DeCSS program to an epidemic, Kaplan granted the MPAA's permanent injunction against 2600 in April of 2000. Not only was 2600 forever barred from publishing DeCSS, it was banned from linking to other sites that distribute DeCSS. 2600 appealed with help from the Electronic Freedom Foundation.

Last month, the 2nd U.S. Circuit Court of Appeals began hearing the appeal. In perhaps the biggest joke of the case so far, the Justice Department and the Bush White House are now claiming that DeCSS should be banned because it presents a terrorist threat to the safety and welfare of the United States.

Exactly how copying part of a DVD to use for a class project could destroy the American way of life was not made clear, but that didn't stop the Justice Department from comparing DeCSS to software that could "crash airplanes, disrupt hospital equipment and imperil human lives." The movie studios are still claiming that DeCSS will bankrupt them. On the other side of the courtroom, 2600 has claimed that the DMCA is unconstitutional, DeCSS is similar to a cookbook or a book about car repair, and that computer code is just as legitimate a form of speech as a newspaper article.

As for me, I'll continue to challenge the First Amendment until the FBI hauls me away.

The MPAA can email Bill a copy of his lawsuit at wbhill@unc.edu.