Professor: Brian Wright
CMST 301 7985
The Digital Millennium of Decryption Rights

Outline * Introduction * Decryption Case Intro * Digital Millennium Copyright Act * United States copyright laws replaced by DCMA * DeCSS Tool * Tool Properties

* Research/Findings/Context * Motion Picture Association of America * Trafficking of digital media and the right associated * DeCSS * Creation * Intended use of DeCSS * How DVD encryption functions legally * Region Coding * DeCSS court cases * California trade secret laws * New York court case * Eric Corley * Corley’s intentions * Outcome of his legal allegations * David Touretzky * First Amendment relations * Position on source code links * Copyright Act * Fair Use * Outcome of fair use case * Judge Kaplan * Issues with Kaplan’s decision on fair use * Kaplan’s decision for First Amendment rights when using source code * Professor Touretzky response * Final outcome of court case

* Conclusion * Kaplan’s Final Decision * Defendant Deposition * Plaintiff’s View of Trial * Defendants View of Trial * Overall Outcome

Introduction
This research essay discusses the ongoing turmoil between the DeCSS who produced a source code as well as an established program and the Digital Millennium Copyright Act who supported Motion Picture Association of America. DeCSS is a tool that grants the circumvention of encryption built in DVDs. This paper will examine the outcome of the court decision on a range of problems including the source code being utilized as free speech, fair use, and HTML linking. As of 1998 the Digital Millennium Copyright Act (DMCA) was passed by the United States Congress. United States copyright laws were intended to be substituted by the bill for Digital Millennium Copyright Act to deal with digital media issues. Such things as DVDs that are considered to be digital media were going to be pirated in large numbers because the digital copies of these DVDs were going to be just as good as the original. Congress had to make a move to situate this scenario and come up with a plan to intervene. The Digital Millennium Copyright Act was enacted to protect the digital media’s copyright. The remedy was to encrypt this data on the DVD’s. One year after the encryption was implemented a program called DeCSS was developed and capable of decrypting the data that was stored on the DVD disc.
Research/Findings/Context
The first challenge of the DMCA began, as the Motion Picture Association of America (MPAA) brought suit against individuals who were trafficking the software on the Internet. The ongoing court case raised serious issue about the Internet and the digital age, including topics such as HTML linking, source code as protected free speech, and the consumer's right to fair use.
The DeCSS program was created by a group of three European programmers that called itself Masters of Reverse Engineering (MoRE). The media usually attributes its creation to a Norwegian teenager, Jon Johansen, although he has stated that he did not even do the crucial decryption portion (Kelly, 2000). DeCSS was created to provide a method of DVD playback under Linux, which at the time had no program capable of playing DVDs. In order to understand the basis for the case by the MPAA, it is necessary to first understand the encryption scheme employed by DVDs and how DeCSS circumvents this to facilitate playback. Most DVDs employ a method of encryption called Content Scrambling System (CSS). With CSS, each encrypted DVD contains a key that is used along with a key in the player in order to decrypt the contents of the DVD. The DVD Copy Control Association (DVDCCA), the CSS license holder, issues the key in the DVD player to licensed manufacturers of DVD players (Taht, 2000). DeCSS uses a valid but unlicensed key to decrypt the DVD content. It can then be written to a frame buffer to display the movie. It is important to note that aside from serving what the MPAA claims is its primary purpose, CSS also allows the movie studios to insert material at the beginning of DVDs such as FBI warnings that the user cannot bypass. Furthermore CSS allows the MPAA to region code DVDs. Region coding is the practice by which certain world markets are assigned regions; for instance, the US and Canada is Region 1, while China is another. A Region 1 DVD will not play in a player with any other region number. The movie studios do this to support staggered global theater debuts of new movies. For instance, American movies generally open in the US months before they open on European screens. Region encoding ensures higher profits for a studio by ensuring that the DVD for a given movie is not available in a region before the movie itself is. DeCSS allows the user to bypass both of these features, something that licensed players are forbidden from doing. DeCSS takes control from the studios producing the disks and puts it in the hand of the owner of the disk. As an initial move to block DeCSS, the DVDCCA filed a lawsuit under California trade secret laws against individuals who had posted the source to the DeCSS on their web pages. This case was dismissed and there were legal movements that resulted in the dismissal of a large number of the defendants, as they do not live in California and thus the lower courts must provide a reason why they should be tried in a California court (Hansen, 2000).
The second case to stem from the publication of DeCSS source code on web pages throughout the world finished its first round in a New York court. In this case, the MPAA charged that the DeCSS program violates the DMCA and that it must be removed from web pages, in both binary and source form. The MPAA brought its lawsuit against three defendants, two of which were dismissed after removing the offending source code from their websites and settling with the plaintiffs (Kaplan, 2000a). It is this court case, and the DMCA in particular that will form the basis for the remainder of the paper. The remaining defendant in the case is Eric Corley, who publishes "2600: The Hacker Quarterly" (www.2600.com) under the name Emmanuel Goldstein, a reference to a character in George Orwell's novel, 1984. In 1984, Goldstein is described as "the commander of a vast shadowy army, an underground network of conspirators dedicated to the overthrow of the State". Unable to post the source code to DeCSS after the initial injunction in January 2000, Corley encouraged others to post the program and send him the link. His website posted a page containing more than 300 links to sites containing DeCSS. The MPAA saw this as a flagrant attempt to circumvent the terms of the injunction and sought to have the court prevent Corley from even linking to DeCSS sites. An immediate issue this raised is related to journalism; in reporting on this case, many online newspaper articles had linked to Corley's page (Kaplan, 2000b). If the court supported the MPAA and forbid linking to sites containing DeCSS, these articles would be illegal. A ruling of this nature would clearly have a detrimental effect on online reporting. The studios' position was that Corley's mass of links displayed a "continuing intent to traffic" DeCSS and thus differentiated him from news reports (Kaplan, 2000b). The defense's position on this issue is that linking is simply indexing. Just because 2600 is not The New York Times does not mean they should not be afforded the same right to disseminate information to readers (Kaplan, 2000a). Providing a link to a web page is "essentially a citation", indicating a source of more information claims Dan Burk, a law professor at the University of Minnesota (Kaplan, 2000b). Furthermore, the defense makes the point that it is not illegal for a newspaper to report that drugs are being sold at a given location, while the actual trafficking of the drugs is clearly illegal. The defense concludes that linking to a website serves the same function: to provide information to the reader.
The defense also takes the stance that computer code is expressive speech and is thus protected under First Amendment rights. If computer code were to be acknowledged as protected under the First Amendment, it would be permissible for anyone to post source code freely. David Touretzky, a professor of Computer Science at Carnegie Mellon University and expert witness for the defense stated the problem with the MPAA's position that source code was not protected under free speech. "If the court upholds this injunction, what would happen is that certain uses of computer language - my preferred means of expression - would be illegal" (Harmon, 2000).
The third major point raised by the defense is that of fair use. Fair use is codified in Section 107 of the Copyright Act, and gives an individual who legally owns a copyrighted work the right to do with it as they please. Fair use is what allows people to record shows on their VCRs for private use. It allows encoding a CD to MPEG Layer 3 (mp3) format or to tape. However, when the DMCA was created, Congress did not add any mention of fair use. By upholding the DMCA in this case, the court would extinguish fair use for any form of media covered by the DMCA. The defense's position was that this was not the intent of Congress and that if it were, the DMCA should be deemed unconstitutional.
In August 2000, Judge Lewis Kaplan ruled in favor of the MPAA and overruled all the defense's arguments. The case was appealed; the defense stated that it will take the issue to the Supreme Court if necessary. By examining the judge's decision and the reasons given, the implications of this case become visible and demonstrate why this ruling cannot be allowed to stand. With regard to linking, Judge Kaplan found that a link that "automatically commence[s] the process of downloading DeCSS" is not different than posting DeCSS on one's own site. Furthermore, any link that "display[s] nothing more than the DeCSS code" falls into the same category (Kaplan, 2000c). Such links fall under Section 1201(a)(2) of the DMCA which holds that "no person shall...offer to the public, provide, or otherwise traffic" anything that is primarily designed to circumvent copyright protection (DMCA Section 1201, 2000). The impact of this part of the ruling was that the web site changed the HTML links to plain text that could then be copied into the address bar of a browser.
There are two minor issues raised by the judge's opinion on this matter. If one uses Google (www.google.com), or any other search engine, to search for "DeCSS", a list of links to pages providing DeCSS are presented. Is Google illegally trafficking banned software? The second issue returns to the issue of journalism. When CNN reported the results of the case they provided a link to the 2600 web site containing the questionable links (Tate, 2000) (FullPageCNN Screenshot, 2000). Judge Kaplan's decision stated that a link was acceptable if it “offer[s] a good deal of content other than DeCSS" (Kaplan, 2000c). Kaplan would not consider the DeCSS site at 2600 one of these sites, thus rendering CNN's article illegal. Interestingly enough, CNN is a child of Time-Warner and Warner is one of the studios belonging to the MPAA. These issues demonstrate a clear need for the issues of linking to be reexamined during the appeal process.
Judge Kaplan ruled that the DeCSS source code is not protected under the First Amendment. While he ruled that source code did contain expressive value, which made it a potential candidate for First Amendment protection, Kaplan stated that based on an examination of its function, the First Amendment does not protect the code. Kaplan's decision on this portion of the case runs contrary to previous cases, such as the cryptography case in 1999 that upheld source code as protected speech under the First Amendment (Bernstein vs. United States Department of Justice, 1999)
Judge Kaplan's words in his opinion show his focus on piracy as the sole use of DeCSS and a lack of acceptance for other uses of the software. He questions Jon Johansen's testimony, wondering "if, indeed, developing a Linux-based DVD player was among their purposes" (Kaplan, 2000c). Whether it was or not is immaterial. DeCSS source code has value beyond piracy in that the source code could be used to facilitate the creation of a Linux DVD player.
Professor Touretzky pointed out a flaw in Kaplan's reasoning when he stated some cases where the First Amendment does apply: "It's illegal for me to give you LSD, but I can give you the recipe. I can't give you a pipe bomb. But I can give you a book about how to make a pipe bomb” (Zlatos, 2000). The implication here is that the recipients’ ability to convert instructions into a finished product does not matter in the application of the First Amendment. By extension, one's ability to compile source code into the DeCSS executable should also be ignored. To point out the ridiculous nature of Kaplan's ruling, Touretzky hosts a gallery of clever ways to legally express the DeCSS source code (Gallery of CSS Descramblers, 2000).
Conclusion
Judge Kaplan unfortunately took a strict interpretation of the DMCA in his decision. There are no provisions for fair use in the DMCA and previous provisions in the Copyright Act are not applicable under the DMCA. Claiming that this was the intent of Congress, he dismissed the issue. The implication of Kaplan's ruling is that owning a DVD does not give one the right to watch it; owning a licensed DVD player gives one the right to view movies. Once the DVD is paid for, it is the property of the individual and within certain limitations (i.e. the owner cannot sell copies), it should be theirs to do with as they please.
The defendant’s claims of laws and fact were opposed then were unsuccessful after the ruling of Kaplan. During the course of the trial, the defendants requested to take one out of court oral testimony, which was granted. The defendants in this case were not found as trying to hinder the court case in the deposition but were not able to make a discovery to counter the laws and facts.
The defendants did not postpone there next court date. They also have not requested a separate trial. Originally the defendant thought the court case would take weeks to finish but rather ended only after six days of trial. In the Court’s view all testimonies given by professionals in the field were indicated as being reasonable and justified. All the testimonials materials were given to both sides of the Court and were available during the defendant’s deposition. Examination of the trial record show that practically the full case could have been stipulated, even though the legal outcome to be provided from the specified facts of course would have been left for the interpretation of the disagreement.
The Plaintiffs have invested millions of dollars in making their motion pictures and never had a problem with the copyright laws that were in place. The very framework that was placed for these laws were concrete in its entirety. With new technology comes different scenarios that have introduced challenges but the Plaintiff’s believe that this should not constitute a change in the framework’s structure.
The Defendants have contrary beliefs that anyone who has the knowledge and capability to cleverly hack or utilize resources should have access to this data. In spite of the previous outlook they raised a responsible concern with securities in this new digital era and access control measure counters that could be utilized to defend these sites from these sort of “robberies.”
Each side has its own set of beliefs which they are certainly entitled to. Today in our society these types of controversies are typical and these clashes are left for Congress to interpret. Congress in conclusion ruled in the Plaintiffs favor. Declaring the unfamiliar characteristics of computer codes for bypassing encryption and other access control measures, the DMCA in regards to posting and linking here does not breach the First Amendment. Though the Plaintiffs had a successful court case, still in 2014 these issues still reside. Even though illegal, the mass reproduction of DVD’s still exists today.

References
Bernstein vs. United States Department of Justice, et al. (1999). Retrieved on December 5, 2014 from http://www.eff.org/bernstein/Legal/19990506_circuit_decision.html
DMCA Section 1201 (2000) Retrieved on December 5, 2014 from http://www.cs.cmu.edu/~dst/DeCSS/dmca-1200.txt
Full PageCNN Screenshot (2000). Retrieved on December 5, 2014 from http://www.scripting.com/images/fullPageCnnScreenShotDeCss.gif
Gallery of CSS Descramblers (2000), Retrieved on December 5, 2014 from http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html
Hansen, E (2000) Hollywood dealt setback in DVD code case. Retrieved on December 2, 2014 from http://news.cnet.com/news/0-1005-200-4159594.html
Harmon, A (2000) Free Speech Rights for Computer Code? Retrieved on December 5, 2014 from http://www.nytimes.com/library/tech/00/07/biztech/articles/31rite.html
Kelly, J. S. (2000) Interview with Jon Johansen. Retrieved on December 2, 2014 from http://www.linuxworld.com/linuxworld/lw-2000-01/lw-01-dvd-interview.html
Kaplan, C. S. (2000a) First Amendment Lawyer Takes on Movie Studios in DVD Case. Retrieved on December 5, 2014 from http://www.nytimes.com/library/tech/00/04/cyber/cyberlaw/28law.html
Kaplan, C. S. (2000b) Is Linking Illegal? Retrieved on December 5, 2014 from http://www.nytimes.com/library/tech/00/06/cyber/cyberlaw/16law.html
Kaplan, C. S. (2000c) United States District Court Opinion. [PDF Document] Retrieved on December 5, 2014 from http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08592.PDF
Tate, R (2000) Time Warner posts a link it had banned. Retrieved on December 5, 2014 from http://www.upside.com/News/39a6fef00.html
Taht, M (2000) Picket Rye. Retrieved on December 3, 2014 from http://www.picketwyre.com/~mtaht/css.html
Zlatos, B (2000) CMU scientist sees both sides to DVD case. Retrieved on December 5, 2014 from http://www.cs.cmu.edu/~dst/DeCSS/Gallery/tribune-review-dvd0821.html