<http://www.nytimes.com/library/tech/00/07/biztech/articles/31rite.html> Suit Tests Power of Media Concerns To Control Access to Digital Content By AMY HARMON Ê It was perhaps the most arcane statement in all the hours of acronym-filled testimony, one that came on the last day of the six-day trial. But it may have been a turning point in an important battle over the limits of a new copyright law, a potential landmark case that ended its trial phase last week in Manhattan and now awaits a verdict by the judge. More news coverage may have been devoted to the recent legal wranglings over Napster, the Web service that the recording industry has accused of abetting widespread music piracy. But the Manhattan case, involving the copying of DVD movie disks, may have more far-reaching effects -- both on the way cultural products are consumed and on whether computer code is deemed to be speech deserving of First Amendment protection. >From the witness stand last Tuesday, Prof. David S. Touretzky, a computer scientist >at Carnegie-Mellon University, paged through a series of exhibits that included lines >of software source code in the C computer language, an English-language description >of the code, long strings of ones and zeros known as object code and a picture of a >T-shirt with the object code printed on it. All of the exhibits pertained to the subject of the trial: a software program that enables a user to decode the scrambling technology meant to prevent DVD movie disks from unauthorized copying. Professor Touretzky, an expert witness for the defense, told the judge that if he saw fit to ban any one depiction of the DVD-unscrambling software he would have to ban them all, because they all communicate the same thing. "I see this as having a chilling effect on my ability as a computer scientist to express myself," Professor Touretzky said. He was referring to the court's preliminary injunction that barred a Web site from posting the underlying, or source, code for the cracking program. "If the court upholds this injunction, what would happen is that certain uses of computer language -- my preferred means of expression -- would be illegal." Until that moment in the trial, United States District Judge Lewis A. Kaplan had appeared to have little doubt about the copyright law's constitutionality. In ordering the injunction, he had noted that the First Amendment does not shield copyright infringement, and that computer code was essentially "no more expressive than an automobile ignition key." But in light of the professor's testimony, Judge Kaplan said, he would reconsider his constitutional analysis. It would be hard to make a case "that computer code of any kind has no expressive content," the judge said. "Which then gets you to the question of how then do you deal with it under the First Amendment?" It was a significant statement to many legal experts, who see the DVD case pitting Hollywood's right to retain copyright control in the digital age against the right of individuals to exercise First Amendment free-speech rights. In essence, the DVD case does not center on traditional copyright issues, like how much of a given work may be freely copied, or how many copies may be legally made, or even -- as in the Napster case -- who can be held liable for enabling someone else to make illegal copies. Rather, the DVD trial is the first test of a 1998 federal law that made it a crime to manufacture or "offer to the public" a way to gain unauthorized access to any copyright-protected work that has been secured by a technology like encryption. It may sound like a hair-splitting distinction, but some people in the debate see it as a fundamental change -- as if the law now made it illegal not only to photocopy and sell a copyrighted book, but also to simply tell someone how to open and read that book without the publisher's authorization. The so-called anti-circumvention provision is part of the Digital Millennium Copyright Act, Congress's attempt to update copyright law at a time when digital technology has made copying words, sounds and images far easier and less expensive than ever before. But critics of the law in its current form worry that it goes far beyond the specific copyright challenges of the digital age to give copyright holders broad new powers over how the public uses their material. They worry that even time-honored "fair use" privileges like quoting from a novel in an essay of literary criticism or showing a movie snippet on a televised review could become illegal or even technically impossible since devising a way to do so would be illegal. "We fundamentally change the face of copyright law if we say none of the limitations and defenses to copying apply if the copyright owner was smart enough to encrypt," said Mark Lemley, a law professor at the University of California, Berkeley who is not involved in the case. "Can you reverse-engineer software? Can you make parodies of someone's work? Can you make educational copies? All of that may be irrelevant if the mere act of getting access to the content for these purposes turns out to be illegal." In the DVD case, eight Hollywood studios are suing the publisher of 2600, a hacker magazine, for publishing computer code on his Web site that enables someone to break the encryption system on DVD movie disks. Studio executives say they are depending on the new law to prevent the sort of mass copying of movies over the Internet that is already happening with music. Without the guarantee of that protection, a Warner Brothers executive testified in court, the industry would never have begun releasing movies in digital format. But lawyers for the magazine publisher, Eric Corley, argue that the law may violate the First Amendment, and that the same principle of "fair use" of copyrighted material that is built into traditional copyright law should be applied to controlling access to digital works. The defense argues that there is a legitimate use for the code that Mr. Corley published on his Web site at the end of last year. They say that the code is a crucial part of a legal reverse-engineering process that enables DVD owners to view the disks on computers running the Linux operating system, something that is otherwise not currently possible. The outcome depends on Judge Kaplan, who presided over of testimony with obvious technological savvy. He has made clear his position that Congress did not build the notion of "fair use" into the restriction on circumventing encryption. Mr. Corley's defense team led by the prominent First Amendment lawyer Martin Garbus, and financially backed by the Electronic Frontier Foundation, a free-speech group, have not been optimistic about winning the trial and have said all along that their main goal is to lay the groundwork for an appeal. But neither side is willing to predict how the judge may now rule, which he has indicated he planned to do shortly after lawyers submit closing briefs on Aug. 8. The wild card may be Professor Touretzky's testimony, which Judge Jackson said was "extremely persuasive." The Teenager ------------------------------------------------------------------------ U.S. Case Had Roots in a Norwegian City The events that prompted the Motion Picture Association of America, a trade group representing eight leading movie studios, to sue Mr. Corley, 40, began last fall in Larvik, Norway. There, Jon Johansen, a skinny, self-confident 15-year-old, decided he was tired of dedicating an entire computer to Microsoft's Windows operating system just so he could watch DVD movies on a PC. All of his other computer activities were on machines running either the Linux operating system or FreeBSD, another alternative to Windows. According to his testimony in the Manhattan trial, Mr. Johansen and two people he knew via the Internet agreed to try to make something that did not yet exist: a software program that would play DVD's on computers running Linux. They knew that would mean cracking the DVD encryption system, Mr. Johansen said, but their purpose was not to make illegal copies. As it turned out, the DVD encryption, known as CSS for Content Scramble System, was not difficult to decode. In a matter of weeks Mr. Johansen had sewn together a decryption program he called DeCSS (pronounced DEE-C-S-S). He posted the DeCSS source code -- its recipe, in effect -- to an Internet list of people working on a Linux DVD software player program. The code was later incorporated into a program that is currently available on the Web in a test format. To no one's surprise, the source code for DeCSS had been widely disseminated across the Internet. In response, the licensing organization for CSS -- made up in part of the major film studios and consumer electronics companies -- has, under a California law, charged some 500 Web site operators with violating its trade secrets by posting the code. A preliminary injunction against the defendants is under appeal. Mr. Johansen, now 16, was recently named in the California case. Norwegian authorities, who seized his computer and held him for questioning last January, have also charged him under Norwegian laws for contributing to copyright infringement. More recently, offers have starting surfacing in Internet chat rooms to trade DVD movies over the Internet that have apparently been decoded with DeCSS or other programs. The movies would be sent over the Web with new data-compressing software known as Divx. The technique is similar to the way MP3 music files are transmitted via Napster and other music services, except that video files are much larger and encrypted and typically take many hours longer to travel across the Internet. Just how widespread such copying is, and to what extent DeCSS is used in such activities, was a matter of some debate at the trial. In fact, the studios conceded that they had no evidence of an individual who had actually used DeCSS for piracy. "We don't have to prove it," said Leon Gold, a lawyer with the New York firm Proskauer Rose L.L.P., who is the studios' lead lawyer. "The point is, we're trying to prevent it." In January, the eight studios filed suit under the Digital Millennium Copyright Act against Mr. Corley and two other New York defendants, who have been dropped from the case. The studios are seeking an order that would permanently bar Mr. Corley from publishing DeCSS, in addition to a declaration that his conduct was unlawful, but the judge has expressed doubts about whether the power of an injunction should be invoked in a situation where he may well conclude that "the horse is clearly already out of the barn." At issue, too, is whether the judge will grant the studios' request that he forbid Mr. Corley from posting links to other Web sites where DeCSS is available. Such a move would also raise First Amendment issues. At the request of Mr. Garbus, The New York Times submitted an affidavit in the case stating that an article on the Times' Web site last April provided a link to the 2600 site's list of links to other sites that were publishing the DeCSS code. The Next Battle ------------------------------------------------------------------------ Issues of 'Fair Use' Confront Digital Age Whatever the eventual outcome of the case, legal experts expect it to lay the groundwork for future battles over the new copyright act. Mr. Corley is being tried for making unscrambling code available to the public. But there is another key provision to the law, a portion that Congress suspended when it passed the act in the fall of 1998. That portion would make it a crime for anyone to circumvent encryption to gain access to a digital work -- in effect, to open and read a digital book without the publisher's authorization. The Library of Congress has been asked to issue a recommendation, due in October, about what groups of people or classes of works, if any, should be exempted from the statute. Depending on the outcome, it could be a crime for anyone to use a program like DeCSS. "If the only way you got material is basically in an encrypted form subject to a contract that says, 'You may not copy any of this,' how do you make fair use?' " said Marybeth Peters, the head of the United States Copyright Office. Ms. Peters has been holding hearings on the matter for two years and must make her own recommendation soon to the Library of Congress. Ms. Peters has been weighing arguments by copyright holders who contend they will have no incentive to produce digital material without the assurance of such protection, and by educational and civil liberties groups who argue that society will suffer if access to the products of mass culture is curtailed. On many days "I'm ready to tear my hair out," she said. "The issues are really complicated, the legislation is less than clear, the interests are many and varied and we have very little guidance because the language is ambiguous and the stakes are very high."
