Commentary: Teen hackers sued by movie studios for copyright

Daily Record, The (Baltimore), Feb 1, 2003 by James B. Astrachan

Electronic civil disobedience? That's what a group of teenage defendants called their actions when, faced with litigation, they revved up their efforts to link their Web site to other sites that distributed their infringing software.

Eight movie studios sued for copyright infringement. The studios had distributed their movies on encrypted DVDs. To protect their intellectual property, the studios employed the CSS encryption system that allowed the DVDs to be viewed only on players and computers equipped with licensed technology that blocks the ability to copy the movies.

Enter defendants, a group of talented hackers who wrote a computer program, DeCSS, that allowed CSS-encrypted movies to be copied and played on machines lacking the copy-blocker. The defendants distributed DeCSS from their Web site, free to the world.

To stop distribution, the studios sued for violation of copyright law - specifically, the Digital Millennium Copyright Act, enacted by Congress because of a concern that the existing copyright laws could not protect intellectual property in a high-tech world.

Alas, technological access control measures, such as encryption devices, can prevent both foul and fair uses of copyrighted works. Defendants asserted that, should the DMCA enjoin them from distributing the DeCSS software, it would also bar people from making fair use of the copyrighted movies by, for example, copying for home use.

Does the public right of fair use or the studios' right to prevent copying prevail?

Double bar

The DCMA contains two principal anti-circumvention provisions. The first governs the act of circumventing a technological protection measure (CSS) put in place by a copyright owner (the studios) to control access to a copyrighted work. Congress described this as the electronic equivalent of breaking into a locked room to steal a book. The second anti-circumvention provision in the DCMA prohibits creation and distribution of technologies developed or created to defeat technological protections against unauthorized access to a work.

The defendants, it seemed, were impaled on both prongs of the law. They circumvented CSS, and to prove it, brazenly named their product DeCSS. Then they provided DeCSS to the public via their Web site.

A computer program is a technology under DMCA. Circumvent a technological measure means de-scrambling a scrambled work, decrypting an encrypted work or impairing a device. Clearly, DeCSS was a means of circumventing a technological access measure and was as clearly designed to circumvent CSS.

But where the case becomes interesting is the collision between the statutory fair use exception to an owner's exclusive rights in a copyrighted work, and the owner's right to control its work.

For example, an owner of the copyright to an essay can't prevent copying of brief portions for criticism. The use of technology to control access, such as an encryption device, can prevent fair use of the work.

Can the DMCA be properly construed by a court to make fair use of the copyrighted films impossible? Does the DCMA reach the activities of a person who enabled another to make fair use of the films?

The answer to both questions is yes. Congress, in enacting the DCMA, left intact the fair use defense to infringement, but only if access was authorized.

Thus it's not the use that infringes but the manner in which the use occurs, e.g. breaking into a locked room to take a book. That seems to decimate the ability to make fair use of a work, as many owners refuse uses that are later declared by courts to be fair. Too Live Crew's parody of the song, Pretty Woman, is an example.

Congress did create limited exceptions to infringement under DCMA for certain uses that were thought to be fair. These uses include reverse engineering, security testing, good faith encryption research and certain non-profit uses related to library and archival uses. But perhaps these uses don't go far enough.

Can the kids hide behind the First Amendment? Is the DeCSS computer code protected speech? Yes and no.

All modes of expression are within the area of First Amendment concern; books, speech and computer code. Perhaps, because code is written in a universal language understood by English and non- English speakers worldwide, expressive code should enjoy enhanced protection.

The DeCSS code was much more than expressive, however. It had a distinct, functional aspect. It doesn't say something; it does something. It is a series of instructions that cause a computer to perform tasks in sequence.

In this case the function is to decrypt CSS-protected files. In addition to reflecting the thoughts of its teenage programmers, it enabled anyone who received it to circumvent CSS.

DCMA was not intended to restrict speech or the exchange of ideas; instead it was intended to restrict functionality. That is, it was created to prevent people from creating products that would bypass technological bars to access.

In other words, Congress wasn't concerned with the book but rather access to a locked room. DCMA is concerned with how you accessed the book; not what you later did with it.