Copyright ϋber alles: The Rallying Cry of the DMCA


By Joel Hruska

Date: December 6th, 2001

About three and a half months ago I took a look at the DMCA as a statute and how it was being applied in America. If you don’t know what the DMCA is, or want to refresh your memory on its goals and applications, check out my original article here.

I wanted to take the time to follow that article up with further information on how the DMCA is being applied and, in particular, to cover decisions reached in one of the most high-profile cases brought against the law. Unfortunately, the news isn’t good.

A Federal Appeals court in New York has dismissed Eric Corley’s lawsuit claiming that the DMCA as applied in his case violates his First Amendment rights. Now, when considered prima facie, the Corley case looks like a simple win for the MPAA. Here’s a quick summary: Corley is a journalist who runs a website called 2600 which boasts a section devoted to hacking information. Corley posted the DeCSS code, which can be used to defeat the CSS encryption algorithm used to encode DVD’s and prevent them from being copied. When ordered to cease and desist from posting this code, Corley complied, but promptly linked to other sites carrying the code. His defense rests on the principles of free speech, while the MPAA asserts that code is not free speech—and, in any event, that Corley is facilitating the theft of their intellectual property and free speech does not defend against theft in any case.

Sounds simple, right? It isn’t. In order to understand the issue you’ll have to understand why the DeCSS code was developed in the first place. DeCSS was NOT developed by a company intending to steal DVD’s—it was developed to allow CSS-encoded DVD’s to be watched on computer’s running Linux. The nature of the CSS license itself forbids it from inclusion in a Linux distribution (the CSS license is closed-source, while Linux is open-source). This means, essentially, that the CSS license MUST be bypassed in order for Linux users to watch home DVD’s encoded with it.

There are several complex issues contained within the Corley case.

1) Is Programming Code Free Speech? Anyone who’s ever programmed knows that different people write code differently, with different arrangements of variables, functions, and structures. It certainly seems plausible that computer code could be a form of self-expression—there is a beauty to a well-shaped and efficiently expressed piece of code that anyone who’s ever had to troubleshoot a program can quickly appreciate. The question in this case is, can a piece of code be protected by free speech when the code itself can also be used?

2) Do ‘fair use’ laws no longer apply? The MPAA clearly believes they don’t—and shouldn’t. According to Jonathan Brand, an attorney with Morrison and Foerster, “…it's a dark and dangerous world out there on the Internet so we really have to be very protective of copyrights, and if that means you lose user privileges, then so be it,'' Band said.”

3) Does the reason code was created matter? Again, apparently not, according to the MPAA. The original teenage creators of DeCSS have also been sued and dragged into the lawsuit, despite having created a program for a legitimate use (watching DVD’s using an OS popular with computer techies) and having no intent to pirate DVD’s, nor advocating such activity.

4) Do consumers have the right to choose an OS? This becomes important because of Linux’s nature itself. Linux is an open-source OS who’s very nature prohibits the inclusion of encryption software such as CSS. By eliminating the functionality of key applications (such as DVD playback) and suing end-users who seek to create such applications themselves, the MPAA and other companies could effectively destroy any OS which didn’t fall into lock-step with their own restrictive license agreements.

Despite the MPAA’s desire to build a case for itself that appears impregnable, the answers to the above question make it clear that the MPAA and CSS case are on extremely shaky ground. Let’s examine each point—and its explanation.

1) Is Programming Code Free Speech? This is going to be debated for quite some time. On the one hand, the courts have consistently upheld and expanded the definition of “free speech” for the last three hundred years ago. In the 1600s, under Judge Blackstone, free speech was defined to be merely freedom from prior restraint—not any sort of freedom from the consequences of one’s speech. This definition has been greatly expanded since that date, however. Now, exotic dancing, flag burning, offensive writing on a t-shirt, (even in a public place) and clothing (as long as it meets public decency laws) are all protected under the freedom of speech. There are two crucial points to remember here: Some people consider some of the above ‘protected’ acts morally wrong (yet they remain protected) and freedom of speech has also been expanded to broadly cover freedom of expression.

Still, freedom of speech does NOT protect the speaker from illegal or destructive acts he/she engages in or incites other people to engage in. Herein lies the battle between Eric Corley and the MPAA, and the central tenet of the free speech question. Where does DeCSS fall in this equation? The courts have yet to render a final decision.

2) Do Fair Use Laws No Longer Apply? This is one of the most serious questions of the entire DMCA debate. The concept of ‘fair use’ is not merely American, or even unique to the last few hundred years, but has been shaped and formed for centuries. If I purchase a product I am allowed to do certain things with it—in other words, I have “fair use” of it. By claiming this is not true on the Internet, the MPAA (or at least their lawyers) commit an immense blunder. Assaulting the laws of fair use in such a manner indirectly assaults the fundamental laws of property ownership simultaneously, and both are extremely important to any culture. If I, as a customer, have no fair use of a product, I am highly unlikely to remain happy very long.

3) Does the Reason Code was Created Matter? This is a VERY ugly point for the MPAA. If they claim “No, the reason doesn’t matter” they open the door for the potential suing of hundreds of thousands of programmers in any field imaginable. After all, Microsoft doesn’t design products with INTENTIONAL security flaws—they write programs designed to be secure. Yet, in this case, the discovery of a security flaw that allowed the theft of another person’s data could get MS sued.

If, on the other hand, the MPAA claims the reason code was written DOES matter, they are promptly left without a reason to be suing Eric Corley. The only way for the MPAA to get around this issue is to ignore—which I’m sure they are only too happy to do.

4) Do Consumers Have a Right to Choose an OS? This is a question that speaks to #3 as well. Companies would certainly admit that consumers had a right to choose an OS—but if no OSses can exist that do not integrate draconian protection laws, it certainly limits their effectiveness. More important might be the question: “Do companies have the right to wield the threat of legal action against corporations and individuals who disagree with them?”

The true danger of the DMCA is not in the act itself, but in the arrogant, self-righteous attitudes of its proponents, best summed up, again, by Jonathan Brand—already quoted above, but repeated for emphasis: “…it's a dark and dangerous world out there on the Internet so we really have to be very protective of copyrights, and if that means you lose user privileges, then so be it,'' Band said.”

This is the type of talk that should make any American pause. Last time I checked it was lawfully elected Congressman—members of this republic we call home—who made such decisions about freedom and privilege, not special interest groups funded by giant corporations with no real interest in their own consumers.

This is one issue that Americans can’t afford to not pay attention too. It doesn’t matter if your technically-oriented or not, if you use Linux or not, or if you approve of Mr. Corley’s case or not. My original article detailed entirely different case situations where the common thread between both was the misapplication of the DMCA and the destruction of the rights of individuals in this country. If you value your right to free speech, if you value your right to fair use, and most of all, if you value the rights of citizens over the rights of conglomerate corporations, you owe it to yourself to make your opinion known.

In order to facilitate this, I’m actually including links for people to get in contact with their various Congressmen and Representatives. Don’t trust that these people—even the well-intentioned—understand the situation involved. Take the time to explain it and open a dialogue.

Or, if you don’t, don’t complain when the music, software, and applications you download one day will only run under very specific situations and conditions, or when your right to privacy has been effectively demolished. As Benjamin Franklin once said, “We must all hang together, or we’ll surely hang separately.”

Its our fight, Ladies and Gentlemen. Do we stand up to do battle for rights of property and fair use laid down through centuries of legal precedent, judicial proceeding, and common law—rights enumerated for other, non-electronic situations to this very day? Or do we meekly allow large corporations to walk all over us, because “we’re too small to matter.”

The choice is yours—but here’s the information to DO something, if you want.


The above link will put you in touch with your House Representative


The above link will put you in touch with your Senator.


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