By Thomas Scheffey
The Connecticut Law Tribune
March 21, 2000
Eight of the nation's major movie studios, battling the spread of a computer program which removes DVD copy-protection, have the creator of a Norwalk, Conn. computer hacking Web site in their crosshairs.
Paramount, Disney, Columbia Pictures, 20th Century Fox, MGM, Tri-Star and Time-Warner are joining in a concerted Hartford, Conn. federal court action, Universal City Studios, Inc. v. Jeraimee Hughes, to keep the Web site designer from offering downloads of a recently-discovered "key" to the movies' encryption.
DVD technology has grown to a million-per-week sale of more than 4,000 movie titles. It could be the successor technology to the popular VHS tapes that are currently the bulk of the home movie market. Unlike magnetic VHS tapes, copies of digital variable discs can be as crisp and clear as the originals -- which makes the threat of widespread piracy all the more serious, in the movie industry's view.
The quick-to-download free program that unscrambles DVD's protective Content Scramble System is known as deCSS. Its author, a 15-year-old Norwegian, Jon Johansen, said he and two Internet collaborators in Holland and Germany only wanted to be able to play DVD movies on their Linux-based computers. Johansen released it on the World Wide Web last summer.
The movie industry hired Stamford, Conn.-based Cummings & Lockwood and New York's Proskauer Rose. Cummings's litigation department head, Robert P. Dolian, filed the complaint against Hughes Jan. 14, joined by Proskauer's Leon P. Gold and William M. Hart.
Hughes' defense counsel is New Haven, Conn., solo Avery S. Chapman, who said students in Yale's intellectual property law society and others at Quinnipiac and Harvard law schools have aided him. Chapman has outlined his arguments in a letter to Judge Robert N. Chatigny in advance of a motion to dismiss.
Chapman's letter contends that an injunction is an overbroad prior restraint on speech and should be denied in the absence of any evidence of illegal copying.
In its Hartford complaint, the movie industry invoked a section of the copyright law that provides that no person shall offer "any technology, product, service, device, component or part thereof [that is] produced for the purpose of circumventing a technological measure that effectively controls access to" a copyrighted work.
The movie and software industry DVD Copy Control Association is the legal license holder of the Content Scrambling System, or CSS, which is supposed to make the disks copy-proof. The association brought suit in Santa Clara County Court in California last fall, suing 500 Web sites. In January the eight studios sought and won a preliminary injunction against a New York Web site after an acrimonious conference-call hearing Jan. 21, in the chambers of U.S. District Judge Lewis Kaplan, in Manhattan. In Connecticut, Hughes attracted the movie industry's attention when he placed Johansen's program on his Web site, a state version of the national 2600 Hacker Quarterly site. It offers news about computer sites that have been "hacked" or penetrated, and information about software tools and repairs.
Hughes's site also offers downloads of desktop screens to use with the Linux operating system -- a combination of artwork and mouse-click control features. An example of the themes is Purple Imac Girl -- featuring a cartoon anime cutie in a violet bathing suit.
From the movie industry's standpoint, the hackers' deCSS program is not just some whimsical artistic creation. It could have potentially devastating consequences for the industry and the commercial viability of DVD as a technology, especially as computers and DVD discs gain the capacity to store movie-length amounts of data on the next generation of storage disk.
Mark D. Litvack, a lawyer for the Motion Picture Association of America, said deCSS strips DVDs of copy protection, and poses a threat to the entertainment industry's latest commercial medium. "Our members relied upon that protection when they decided to release product in the DVD format - and would not release in an unprotected world."
Litvack said he hasn't personally obtained evidence of illegal copying "I do have evidence of people advertising it as a way to make copies of DVDs and trade them with your friends, which would be piracy."
Some economic injury is already being felt, he said. "The one bit of damage that we can show is that DVD audio was supposed to be released as a medium. Because of deCSS, a delay in that technology has occurred, damaging not only the record companies but also people who would love to hear DVD music, because it's the next generation of higher quality music. To quantify that would be hard. But it's been delayed for months now, because of the deCSS hack."
The DSS genie was let out of the bottle when a version of the program was marketed without encrypting the DSS reader. And much to the amusement of hacker news groups, the movie industry plaintiffs in the California action included a copy of deCSS as a public court exhibit, prompting wisecracks about whether the lawyers should sue themselves.
In January, at the in-camera hearing before Kaplan, lawyers for the Electronic Freedom Foundation were not well received. Kaplan scoffed at the notion that the deCSS program is a form of speech, and had little difficulty finding grounds to issue a temporary injunction.
In an interview, Connecticut defense lawyer Chapman said the movie industry is attempting to obtain an intellectual property right to CSS in court that it couldn't get through normal intellectual property law.
He contends the deCSS descrambler has a number of useful applications other than copying DVD movies. A typical DVD disk can contain advertisements that viewers normally cannot skip or fast forward through. DVD won't play on a non-Windows computer operating system, such as Linux. A consumer should have the right to adjust the non-copyrighted features of the product without running afoul of the law, Chapman contends.
"Nobody's denying the movie itself is copyrighted material," said Chapman, and the suit doesn't allege copying by the defendants. "They're concerned about piracy," he said. "There hasn't been any wholesale piracy here. They haven't alleged that in three different actions in three different states."
He said that the deCSS utility makes it possible for users to make a number of legitimate modifications of the information on the disk. One question here, Chapman said, is whether everything else on the disk also is off limits.
If the deCSS program is outlawed, Chapman said, "Linux users would have to go out and buy Windows -- and Linux was created in cyberspace, by a community of users, to be an alternative platform to Windows -- because everybody thought Windows had too many problems."
The deCSS programmers have simply been making an adaptation to fill a market need, and make the DVD run on more systems, Chapman contends. "Today in the computer world, you can't offer a product that's interoperable with everything out there. And whatever product you're selling, from a DVD disc, to a Palmcorder, if there's a problem, somebody's going to go and solve the problem."
Chapman said his client's free-speech rights are also at stake: "The deCSS code was posted by him in the context of discussing the New York and California cases. It's political speech as far as I'm concerned."
A sweeping legal injunction is not the solution, said Chapman. Ultimately, he said, the Digital Millennium Copyright Act needs to be fine-tuned to keep it from conflicting with constitutional protections. "In the meantime, the owners of copyright need to take a more narrowly-crafted approach to what they seek," he said.
"This is an overzealous application of the law -- there's a difference between diligence and overzealousness."
David B. Moskowitz, of Productivity Solutions, near Philadelphia, has the computer know-how to analyze the deCSS program, and has done so. He believes the movie industry "has its head in the sand" to believe an electronic lock on movies would not be picked.
At best, he said, encryption tools merely slow down the decryption process. "The industry had the same kinds of fears [of wholesale piracy] when VHS was new," he said. But the huge subsequent success of the commercial home movie rentals, and lucrative additional market for Hollywood, boiled down to a matter of economic adaptability.
"When they charged $79 for a VHS movie, it created a clear incentive to make pirated copies," he said. "When they charge a fair price, the market for pirated copies disappears."