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standard deviations

Copy This Column: The Truth About DeCSS

Dana J. Parker

February 2000 | Last November, the big news in the DVD industry was the defeat of DVD's Content Scrambling System (CSS). A simple 60KB program called DeCSS, offered by a Norwegian group called MoRE (Masters of Reverse Engineering) allows the contents of DVD movies (minus menus and interactive features) encrypted with CSS to be stored and played back from a hard drive. This development gave rise to sensationalist articles proclaiming "the worst fear of movie studios has been realized" (Wired). The DVD Forum issued a statement denouncing the program as "illegal and inappropriate." In describing the situation to Congress, Motion Picture Association of America president Jack Valenti announced, "The ramparts are being breached."

The MPAA's lawyers lost no time in issuing legal threats to owners of Internet sites offering DeCSS for download, citing "offers to sell unauthorized DVD copies of our clients' copyrighted motion pictures." Matsushita, Toshiba, and JVC announced a six-month delay in the release of forthcoming DVD-Audio players and DVD-Audio-capable DVD-Video players, which were to use CSS2 for copy protection.

My, what a stink, and all over a small program that isn't necessarily illegal, wasn't created illegally or for an illegal purpose, doesn't in and of itself allow "piracy" of copyrighted works, and actually restores the possibility of fair use of DVD content as specifically provided in the copyright laws of the U. S. and many other countries.

Let's start with the legality of DeCSS. The Digital Millennium Copyright Act, which became law in October 1998, makes it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is primarily designed to circumvent copy protection technology.

Although the DMCA is now law--pending certain provisions due to take effect in 2000--its constitutionality has yet to be considered by the Supreme Court in light of previous decisions regarding video recording devices. In 1984, the "Betamax decision" concerning the legality of VCRs was rendered as follows: "The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses."

Despite what the RIAA and the MPAA would like us all to believe--that all copying of copyrighted work is illegal--it just isn't so. Copyright is not absolute. It's meant to strike a balance between fairly compensating the owners of intellectual property and the public's access to their work for the sake of "the free flow of ideas, information, and commerce." In fact, the majority opinion in the Betamax case states: "The copyright law...makes reward to the owner a secondary consideration."

Consumers do have the right to record copies for personal, non-commercial use. Educators, scholars, and journalists can also copy and excerpt for review, research, and instructional use. Section 107 of the Copyright act of 1982 provides: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Then there's the question of whether the intention of DeCSS is to promote piracy. Again, despite mass media hyperbole, there is a big difference between commercial piracy and "casual copying." Pirates, by definition, directly compete with authorized program distributors without obtaining the legal right to do so. They make copies in large batches, using professional equipment comparable to that used by the authorized distributor, and they sell them for profit.

Casual copying, however, is not strictly illegal--under the doctrine of fair use, each case must be considered individually, and must meet certain criteria regarding the the purpose and character of the use. According to the Copy Protection Technical Working Group, an ad hoc group representing the computer, film, and music industries, CSS was never intended to prevent piracy, but to prevent casual copying. DeCSS defeats CSS, which prevents casual copying; therefore, using it does not automatically constitute piracy.

All of this legal explication aside, the issue here is not DeCSS--it is the attempt, by content owners represented by the RIAA and MPAA, to create a technological solution for a legal problem. Copyright laws exist and have teeth, but the music and film industries have decided that it would be easier for them to make technology illegal than to use existing laws to protect their content. This makes no sense--the same law that makes reverse engineering illegal would make possession of a debugger illegal. Unless the law is planet-wide, someone, somewhere, will be able to reverse-engineer any copy protection algorithm legally and share it with others.

It's time for the music and film industries to abandon their fruitless, costly, and consumer-alienating attempts to rewrite the copyright laws to their own purposes. It's a dead-end, and it's only postponing the inevitable. Make your content widely available, globally compatible, and reasonably priced, and you can eliminate the need and desire to make unauthorized copies. It's the only sensible thing to do.

Dana J. Parker (danapark@ix.netcom.com) is a Denver, Colorado-based independent consultant and writer and regular columnist for STANDARD DEVIATIONS. She is also a contributing editor for EMedia, co-author of CD-ROM Professional's CD-Recordable Handbook (Pemberton Press, 1996), and chair of Online Inc.'s DVD PRO Conference & Exhibition. Comments? Email us at letters@onlineinc.com.

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