DeCSS judge: Code isn’t free speech

MPAA president Jack Valenti cheers the decision. Next stop: Appeals court.


A federal judge sided with Hollywood Thursday, ruling that the publisher of an online hacker magazine broke copyright law when he posted DeCSS, a program that decrypts DVDs and allows the digital videos to be watched on computers running the Linux operating system.

Judge Lewis Kaplan’s 89-page decision (a PDF downloadable file) comes in the first case to interpret the Digital Millenium Copyright Act of 1998, (DMCA) and it outlines a narrow interpretation of the controversial law.

Eric Corley, aka Emmanuel Goldstein, the publisher of 2600, immediately promised to appeal and challenge the constitutionality of the DMCA. In the meantime, Kaplan ordered that Corley stop linking to sites that post DeCSS (the judge had previously issued an injunction that prevents Corley from posting the code himself); and Kaplan made him responsible for the legal fees incurred by the eight movie studios that sued him. (The Electronic Frontier Foundation has been footing his legal bills.)

Kaplan rendered his decision by rejecting every one of Corley’s arguments in favor of DeCSS, stating, for example, that the potential fair and legal uses of the technology — like watching DVDs as opposed to copying them — do not exempt people who distribute it from liability.

And the First Amendment argument failed. Kaplan decided that the claim of speech was not enough when the result of that speech has dire effects. “Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement,” he wrote.

Ultimately, Kaplan found that DeCSS violates the “anti-circumvention” clause of the DMCA, contributes to stealing and thus, should be stopped.

“For now at least, Congress has resolved this clash in the DMCA and in plaintiffs’ favor,” he concluded. “Given the peculiar characteristics of computer programs for circumventing encryption and other access controls measures, the DMCA as applied to posting and linking here does not contravene the First Amendment.”

Here are some reactions to the decision:

Jack Valenti, president of the Motion Picture Association of America

I’m rather jubilant now. What Judge Kaplan did was blow away every one of these brittle and fragile rebuttals. He threw out fair use; he threw out reverse engineering; he threw out linking.

I’ve been saying for months now that when you take what is not yours without the permission, you’re stealing. It’s a harsh word, but it’s true. The judge puts it in more hospitable words, but his decision said the same thing.

The big impact is that it sends an alarm bell ringing throughout Silicon Valley, through every office of every venture capital firm. It’s saying to them that if you want to continue pouring money into the rat holes of these Web sites that are stealing or aiding or abetting stealing, you better take a second look at that investment. I think you’re going to see this decision radically dry up funding. What the courts are saying is that if you don’t use technology legitimately, then you don’t have the right to use it. And that’s going to have a very strong effect.

Martin Garbus, lead defense attorney for Corley

The judge and I have different interpretations of the First Amendment, but I think even if we didn’t, it’s difficult for a judge to set aside a law like DMCA, something that Congress considered for three or four years. So there’s no surprise here.

We understood what his views were from the point when he issued a preliminary injunction, we’ve been preparing an appellate record. We always knew we’d have to go to the appellate stage and there, I think we’ll win. We’ll either win at the appellate court level or in the Supreme Court, which is where we’d love to be in February.

Regardless, we’ll emphasize fair use. That’s the First Amendment issue. The other First Amendment issue is linking. The implication of this decision is that you write a story saying you can get crack at 125th and Amsterdam, and you could be held responsible. That shouldn’t be the case.

We’d like to see one of three things happen: A judge can say since the DMCA doesn’t have a fair use clause, then it’s unconstitutional; or a court can say fair use is there but Kaplan didn’t see it and that saves the DMCA; or a judge can read fair use into the statute. That would be more imaginative, finding that fair use is the essence of the law and thus must be in the statute. I’d prefer the second because I think the statute says it.

Shawn C. Reimerdes, developer of the file-sharing program Yo!NK and one of the original three defendants in this case; in April, he settled with the studios, agreeing not to post DeCSS on his Web site or link to the sites that host the program’s code

It’s not surprising but it’s unfortunate. Kaplan’s saying essentially that the DMCA is there for the companies and no one else. It’s absurd. In the conclusion, he’s saying that the defendants believe that all information should be available without charge to anyone “clever enough to break into” a computer system. What a silly statement; he’s not even calling them hackers, he’s saying they’re some kind of thief or criminal. He does say, though, that they raised concerns about copyright, so I hope that the appellate courts will decide on that.

As for the linking section, it’s absurd too. The fundamental design of the Web is that things are linked one to another — you can’t make that illegal. I’m really surprised that he left the linking in. I thought he’d realize the implications. I mean he says that if you’re linking to information, then you’re liable for what that information does? It’s crazy.

Mark Lemley, a copyright expert and University of California at Berkeley law professor whom Kaplan quoted at length in his Jan. 20 injunction, which prohibited Corley from posting DeCSS

I think it’s unfortunate, in particular that the court concludes that the DMCA bypasses fair use. The court’s conclusion has some support in statute, but that interpretation — if that’s what the statute does say — is really problematic. From a policy perspective, there’s a reason we have fair use, so if we abolish it as this decision seems to do, then we’ve pretty radically changed the copyright law.

It’s also problematic from a constitutional perspective. The Supreme Court has said that one of the reasons copyright law is constitutional is because it has limitations built into it — one is the idea-expression dichotomy, which says you can’t copyright facts or ideas, you just get to protect your way of expressing them. The other is fair use, which lets people copy things for certain legal reasons like library use.

Because of these limitations, copyright law doesn’t intrude on free speech, so it’s legal. But if you can bypass fair use in this large class of cases, then there’s some question as to whether the statute itself ought to survive Supreme Court scrutiny.

Kaplan spends a lot of time on the First Amendment, but not on this issue. The opinion doesn’t talk about the constitutionality of the DMCA. This was argued in the trial; I would have expected to see some treatment.

The linking thing is also troubling. The court clearly tries to limit the circumstances in which linking leads to liability, but nonetheless, the fact that you’re saying it’s illegal to make reference to information that resides somewhere else — well, that’s got some troubling implications for, among other things, the news media; if Salon, for example, wants to show its readers what all the fuss is about [with DeCSS], reporters could be pulled into court and asked why they decided to link to the information. I can imagine that there will be a lot of litigation over the intent of the press, and a lot reporters in court.

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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