From the Summer 2001 issue of The News Media & The Law, page 28.
By Ann Premer
An online magazine is defending its right to publish articles about how to decode DVDs, which would allow users to copy and watch movies on unlicensed players. The case, which the government and the movie industry present as nothing more than a digital copyright violation with no free speech or free expression implications, is now unfolding as a First Amendment controversy.
“When we started this case and said that it was a First Amendment case, we were scoffed at,” said Cindy Cohn, an attorney at the Electronic Frontier Foundation, which represents the magazine. “We’ve finally got the court really focused on the First Amendment.”
Accordingly, the U.S. Court of Appeals in New York (2nd Cir.), which heard oral arguments for the case in May, later asked the parties to answer 11 questions about elements in the case that could implicate First Amendment interests.
The appeal followed a decision in February 2000 from a federal district court in New York to permanently stop the online magazine and its publisher, Eric Corley, from publishing and linking to a source code called DeCSS, which decodes DVDs. Unless the magazine 2600, a quarterly hacker’s journal that publishes both online and print editions, is able to persuade a higher court to allow publishing of or linking to the DeCSS code, 2600‘s editorial autonomy may be threatened. Both sides filed answers to questions from the circuit court concerning whether provisions of the Digital Millennium Copyright Act violates the First Amendment.
A question the court posed was whether the permanent injunction against 2600 was appropriate under the lower court’s assertion that the dissemination of DeCSS “carries very substantial risk of imminent harm.” Under Brandenburg v. Ohio, the U.S. Supreme Court held that the government could proscribe speech when it advocates, incites or produces imminent or lawless action and it is likely that the advocacy will produce such action.
In their brief to the court, 2600‘s attorneys argued that the elements of Brandenburg did not apply, writing that neither the DMCA nor the district court’s application required proof of intent, imminence or likelihood of illegal action from publishing the DeCSS code. The brief further stated that a substantial risk of a violation of the DMCA fell far short of Brandenburg.
Cohn said the responsibility of the illegal action of violating the DMCA should be for the person who misuses DeCSS, not 2600, which only published and linked to the code.
The Electronic Frontier Foundation, a civil liberties group which specializes in privacy and freedom of expression rights concerning the Internet, represents 2600 and Corley in the suit that was filed by eight major motion picture studios.
The suit relies on the DMCA, which prohibits providing tools or information to circumvent technologies used to protect copyrighted works. The Motion Picture Association of America argued that by publishing the DeCSS source code on its Web site, 2600 violated the federal law.
Charles S. Sims, an attorney representing the studios, wrote in his answer to the appeals court that “DeCSS is not information within the meaning of the First Amendment . . . it is . . . a ‘digital crowbar,’ a technical device for circumventing protection that copyright owners have installed on copies of their copyrighted works.”
Movie and record conglomerates use an encryption program called Content Scramble System (CSS) to prevent users from playing DVDs on unlicensed players or copying DVDs. Licensed DVD players have a built-in CSS enabling them to decode and play the DVDs.
“The DMCA induces content companies to put their material on the Web by offering them protection against infringement by doing so,” Sims said.
Magazine 2600 wrote an article in November 1999 about the cracking of an encryption code, which included posting DeCSS on its Web site and linking to other Web sites that contained DeCSS.
The Webmaster at the time 2600 published the DeCSS articles would only speak to The News Media and the Law on the condition that he was referred to by his alias, Macki. He said that before 2600 published the article about the decryption of CSS and the code’s creator Jon Johansen, a Norwegian teen, many other articles were published, and a number of mirror sites contained the DeCSS code as well.
Macki said that other Web sites began pulling the DeCSS code and links to the code because of lawsuit threats and the repercussions for potentially violating the DMCA. He said 2600 posted the story and the code to show that regardless of the restraints the information would still be available on the Web.
“It was really an anti-censorship campaign,” Macki said. He said the restraint placed on 2600 not to publish DeCSS has not stopped other sites from publishing DeCSS and making it available to the public. In fact, a Web site maintained by a computer science professor at Carnegie Mellon University has posted the description of the descrambling algorithm in a haiku format and as a song to emphasize that computer code is expression.
“The injunction doesn’t serve its purpose,” Macki said, noting that DeCSS is still available on the Web. “It never harmed us the way it was supposed to.”
Macki said that the Motion Picture Association sued 2600 because “they figured we would have been an easy target.”
The Motion Picture Association argued that its copyrights are threatened because users could upload films from DVDs by using DeCSS, which would allow users to play DVDs on their personal computers and obtain them free on the Internet, giving the public no reason to buy or rent a DVD. This argument persuaded federal district Judge Lewis A. Kaplan to enforce the DMCA and protect digital copyrights in his ruling.
“Without effective limits on these technologies, copyright protection in the contents of DVDs would become meaningless and the continued marketing of DVDs impractical,” he said.
The magazine argued the federal law, which Congress passed in 1998, is too broad and hinders its First Amendment right to publish the code and link to the code for articles in its publication.
The Department of Justice, defending the DMCA, said in its answer to the Second Circuit that Congress made the conclusion that copyright holders would not place their works on the Web without an effective protection from infringers copying the work and then distributing the protected work worldwide.
Jessica Litman, professor of law at Wayne State University and author of “Digital Copyright,” compared the anti-circumvention provision of the DMCA to trying to enforce a 50 mph speed limit by making it illegal to manufacture vehicles that could go faster than 50 mph.
The DMCA makes certain uses of copyrighted works illegal that were not previously illegal under copyright laws, Cohen said. She explained that it would be “fair use” for a television news program to use a clip from a movie when covering a story about an actor in the movie. However, it is illegal for the news program to record a clip from a DVD. The latter is illegal, she said, because in order to record a DVD the news program would have to use the controversial DeCSS.
Sims said that the DMCA did allow for fair use and, even so, fair use is not a defense to a cause of action for violating the DMCA. “There are lots of ways of making fair use of motion pictures on DVDs, and those ways are enormously more broad than the scope of the fair use that was available from the dawn of the motion picture era” until VCRs, an attorney for the studios said.
Charlotte Douglass, the principal adviser to the general counsel to the U.S. Copyright Office, said the copyright office was at the bargaining table for the DMCA and provided technical support.
“The DMCA has changed things so that you are required to get permission from the copyright owner to access the work if it has a technological protection,” Douglass said. “Library organizations thought this was the antithesis for fair use. They didn’t want to see the rights they assumed they had shrink. They were very concerned about preserving fair use.”
Litman said the DMCA at its inception was pitched as a narrow provision aimed at catching pirates.
“In fact, as we see from the first case out of the block, the DeCSS case is much broader than that,” Litman said. “This is the first time that it is going to be a felony to circumvent a technology protection measure.”
Litman explained that DeCSS allowed users to view a DVD on a different platform. “If you have bought or rented a DVD, you’ve got a license to watch it,” she said. “Yes, the access control keeps you from gaining access, but you are a licensed viewer.”
Copyright laws are designed to balance the rights of the copyright holder with the rights of the public, Litman said.
“I am very hopeful that the courts will be sensible and will cut back on the sort of breathtakingly expansive constructions of the statutes that the motion picture and recording industries have insisted on pushing,” Litman said.
The Reporters Committee for Freedom of the Press was among the many First Amendment organizations that signed an amicus brief supporting 2600. The Second Circuit’s ruling was pending in early August. (Universal City Studios Inc. v. Corley) u