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MPAA vs. DeCSS at H2K: DVD Content Scrambling and the Letters of Copy Protection Law

by Heidi Gautschi

A modern day David and Goliath is playing out in federal court these days: The Motion Picture Association of America (MPAA) has launched an offensive against 2600, the small organization that publishes Hacker Quarterly. At the center of this controversial lawsuit lies a thirty-line computer program that has set the content-scrambled DVD world on its ear: DeCSS.

This July, the weekend before the MPAA vs. 2600 (DeCSS) trial began, 2600 and the Hacker Quarterly hosted the H2K conference (http://www.H2K.net) in New York City, which included a mock trial featuring defendant Emmanuel Goldstein and the hacker poster boy identified as DeCSS' principal author, Jon Johansen.

The source of 2600's legal problems stem from a report posted on 2600.com on November 12, 1999, (http://www.2600.com/news/1999/1112.html) about DeCSS, an application that cracked the content scrambling system (CSS) used as copy protection for DVDs. The Hacker Quarterly article mirrored to a site offering the application for download. In January 2000, The MPAA filed a preliminary injunction against 2600, which prompted 2600 to remove the mirror site and instead post a list of links to sites containing DeCSS.

A three-member collaborative of open source advocates calling themselves Masters of Reverse Engineering (MoRE) developed DeCSS to enable users of Linux and other non-Windows/Mac operating systems to play DVDs. At the time, no players for these platforms existed. Sixteen-year old Jon Johansen, the co-author willing to use his name, posted DeCSS on one of his Web sites. At the prodding of the MPA (the international version of the MPAA), Norwegian police questioned Johansen and his father, and confiscated the MoRE member's computer and cell phone. In Norway, Johansen faces up the three years in jail, but will likely be fined instead and serve no time. At the H2K conference, Johansen, whose self-composed appearance seemed inconsistent with his media portrayal as a hacker wonder-kid, expressed little concern over the possibility of fines; they will be based, he explained, on the previous year's income, and he said he didn't have any income last year. Johansen has also been called as a surprise witness for the defense in the U.S. suit.

The MPAA wants 2600 to remove a growing list of links to DeCSS from 2600.com as the organization believes this application promotes illegal copying of DVDs. The MPAA views the lawsuit as being about piracy and the protection of copyrighted work despite the fact that no one deposed in this case testified that DVDs are currently being copied as a result of DeCSS.

DeCSS is not an easy application to use. During a session at the H2K conference, roughly 30 of 200 attendees who attempted to use the program succeeded in using DeCSS. Of those 30, only one person was able to copy a DVD, and he accomplished this only after rewriting the application.

Many at the conference expressed the opinion that original CSS encryption does not hinder piracy and that most pirated DVDs are copied bit-by-bit, and the resulting pirated discs are therefore encrypted with CSS. Proponents of DeCSS as a legitimate effort to broaden DVD's playback base and availability argue that the MPAA is seeking to control not only the copyrighted material on a DVD, but also how it offers it to the consumer and how the consumer views it. According to Martin Garbus (http://www.fgks.com), lead litigator for 2600, the MPAA "wishes to determine how new technology is adopted and what you can and cannot do."

The MPAA claims that DeCSS is a "tool of circumvention," and under the Digital Millennium Copyright Act (DCMA) OF 1998, tools of circumvention are illegal.

As Emmanuel Goldstein, publisher of The Hacker Quarterly sees it, "this lawsuit is about access control, how you can play back what you've already bought." According to Robin Gross, staff attorney at the Electronic Frontier Foundation (EFF), The MPAA "never had the right to license movies to the consumer. You buy the movie and you can watch it. They want to extend the license." According to Goldstein's defense team, if the Digital Millennium Copyright Act (DMCA) is interpreted in favor of the MPAA, consumers may lose the right to fair use and Goldstein fears that if the MPAA wins this lawsuit, consumers risk losing their existing freedoms in other areas of content as a result of controls imposed on this new technology.

This lawsuit will set the precedent for how the DMCA will be interpreted. Gross believes "we need an interpretation of the DMCA that allows software developers to reverse engineer, discuss [their findings], report [on their findings] and post [their findings] on the Web." The Copyright Office is currently reviewing the DMCA and the EFF (http://www.eff.org) has requested that DVDs be exempt from the DMCA. Were the Foundation's request to be granted, the lawsuit would become a non-issue, as tools like DeCSS would also be exempt from the DMCA.

The H2K conference staged a mock trial, though with a roomful of hackers and hacker-friendly folk the outcome was likely to be slanted. Goldstein sat at the defendant's table wearing a baseball cap and mirrored sunglasses. When someone at the H2K press conference asked why Goldstein and 2600 were named in this lawsuit and not The New York Times, The San Jose Mercury News, or The Village Voice-all of whom had posted links to DeCSS--Garbus did not hesitate in his reply. He looked over at Goldstein and said, "because he looks like Emmanuel Goldstein, he talks like Emmanuel Goldstein." Goldstein, a single counter-culture opponent, is an unlikely winner in any lawsuit, and certainly the underdog when pitted against the MPAA's might.

As Goldstein put it, "the MPAA is a bigger enemy than some countries." Like so many on the defendant's bench before him, Goldstein believes, "Truth is on our side."

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