Inside the DeCSS Trial

The whole affair began when teenager Jon Johansen wrote DeCSS in order to view DVDs on a Linux machine. The MPAA has since brought suit against him in his native Norway as well. Johansen testified in late July that he announced the successful reverse engineering of a DVD on the mailing list of the Linux Video and DVD Project (LiViD), a user resource center for video- and DVD-related work for Linux.

The Electronic Frontier Foundation (EFF), an organisation based in San Francisco which supports civil liberties in digital arenas, is providing a legal defence that cites, among other issues, fair use. After all, the EFF argues, if you buy a DVD, why can't you play it on any machine you want?

The judge in the case, the honorable Lewis Kaplan of the US District Court in southern New York, issued a preliminary injunction against posting DeCSS. Corley duly took down the code, but did not help his defence by defiantly linking to myriad sites which post DeCSS.

By taking his stand, Corley has brought key issues of the digital age to trial. Among them is the right to experiment and to share knowledge, he said. The case also points to the DMCA's broad protections, which for the first time not only give copyright to creative work but also to the software -- or any other technology -- that protects it.

Still open is the question of whether the injunction against Corley, or the fight against DeCSS itself, is not a vain struggle in the face of inevitable change. Judge Kaplan, whom the defence requested recuse himself based on conflict of interest, said on July 23rd to Mikhail Reider, the MPAA's chief of Internet antipiracy, "You are asking me to issue an injunction against the guy who unlocked this barn, [telling him] not to unlock it again --- even though there is no horse in it."

"It's good to see that [the judge] is realising the futile nature of dealing with these issues this way," said Robin Gross, an EFF attorney and a member of the defence team.

True to their hacker beliefs, Corley supporters came to the trial wearing the DeCSS code on t-shirts. There are also over 300 Web sites that still link to the decryption code, many beyond the reach of the MPAA. According to Gross, one defence the EFF will cite in the case's briefing stage is a recent 6th Circuit Court of Appeals decision confirming that code qualifies as speech, and as such is protected by the First Amendment.

The MPAA has a compelling argument. "Does one not go after the person that steals what you own? You have the right to protect your property. Our goal is not to litigate the Internet, but to protect what we own. That's what CSS was all about in the first place," said Rich Taylor, a spokesperson for the MPAA.

The MPAA's argument is mirrored in several other cases concerning digital copyright issues, including the case against Napster and this week's suit by the entertainment industry against Scour.com, a movie-swapping Website.

Though the MPAA may not be able to stop DeCSS, there are other issues at stake that are unrelated to digital piracy.

Copyright is not the issue to supporters of the defence in this trial. "I think that anyone who holds First Amendment rights dear, in addition to Linux users at large, are interested in satisfying the copyright of entertainment properties, as long as fair use and freedom of speech is not inhibited," said Jim Gleason, president of the New York Linux Users Group, which plans further protests should Corley lose the case.

Piracy is an old enemy for the multibillion dollar entertainment industry, the Internet's power to propagate illegal copies notwithstanding. At stake for the MPAA -- even if not stated directly -- is the fact that DeCSS allowed users to develop competing technology.

First Amendment attorney Martin Garbus, who leads the defence, explained to the court Thursday, "It is our position that last year [the MPAA] knew about a number of procedures that could be utilised with respect to DVD movies, that the only procedure that in any way related to Linux -- if you want to call it a competitive technology -- was DeCSS. What they did is, they did not go after any of the technologies; they only went after DeCSS."

Matthew Pavlovich, founder of the LiViD project and president of the Dallas-based technology startup Media Driver, testified Friday that DeCSS was critical in developing a Linux-based DVD player.

He further said that the CSS license from the DVD Copy Control Association (DVD CCA), which works hand in hand with the MPAA, "is incompatible with the license in which open source software is developed for Linux."

Another soon-to-be-released Linux player by Sigma Design has a license from the DVD CCA. But, said Pavlovich, "The software which Sigma Design plans on releasing works only on their card, whereas the design for LiViD will work on a variety of cards or on systems that do not have a card at all."

In a month, the first release of the LiViD DVD player should be available, said Pavlovich, and it will be free -- free as in both free speech and free beer.

If DeCSS were to be outlawed, "it would be a blow to Linux development and, because our business is working with this software, it would be a hindrance to our business model," according to Palvovich.

The defence expects to rest this Wednesday. After a period of about three weeks for brief filing, it anticipates a speedy determination by the judge, who some credit (and others criticise) for expediting the trial. Moving the original trial date from December to July, for example, put an enormous amount of pressure on the defence.

"Our main goal," said Gross, "is to build a strong, solid record to take to the appeals court, where civil liberties are taken more seriously."

The EFF is prepared to battle the case to the Supreme Court by next year if need be. Along the way, the DMCA, which in 1998 was supposed to bring copyright issues up to date, will most likely be revisited.

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