By Jena Ardell
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By Zachary D. Roberts
It's 2:30 p.m. and Roman Kazan and his fiancée huddle on a couch in the entryway of Judge Lewis A. Kaplan's chambers. Kazan is one of three defendants accused of violating copyright law by distributing DeCSS, a piece of software that the Motion Picture Association of America says can, in theory, be used to copy DVDs. Over the next three hours, Kazan's confidence gives way to confusion then outrage.
At 5:30 p.m. the judge hands down a preliminary injunction against him.
"I'm being sued for something I have nothing to do with," he says. Indeed, Kazan doesn't care a whit about DeCSS, and he never even heard of the program until he was served court papers. But this is immaterial, as the lawyers say.
Kazan's been picked because he owns an ISP that hosted the code, and in the eyes of the motion picture industry that makes him a target. After the injunction, MPAA president Jack Valenti would say it was "a great victory for creative artists and consumers everywhere." But some civil libertarians and the core of the computing community take a starker view, and Kazan agrees.
"I have nothing, I mean nothing, to do with this. It's like, I'm the landlord and I'm getting charged for a crime committed by one of my tenants," Kazan says. Mark Litvack, an MPAA attorney, says they are "willing to work with" Kazan. But a promise to drop him from the suit has so far not materialized.
"It's more efficient to go after an ISP," explains Jonathan Band, a lawyer specializing in digital law. "If they can set this precedent, it will make any cease-and-desist letter far more compelling. They can close down 50 sites at once."
For Kazan, the timing couldn't be worse. Escape.com, his site, has had trouble competing against the big providers like AOL. His father, Michel Kazan (formerly the hairstylist to Jackie Onassis), is in the hospital. Kazan's fiancée offered to sell her engagement ring to pay for counsel, but he said no.
At least he's not Jon Johansen. Two weeks ago Norwegian authorities raided the 16-year-old's home and charged him with authoring DeCSS. He and his father, who also hosted the code, are the first in the world to face criminal charges in such a case. If convicted, they face up to three years in prison.
This is an especially bitter pill for Johansen, because his program was never intended, and is indeed unable, to be used to make copies of DVDs, a point the MPAA ignores. A member of Masters of Reverse Engineering (MoRE), Johansen wrote the program so that he could view DVDs on his Linux-equipped computer, for which no player previously existed. After he posted the code, DeCSS proliferated across the world and went right into the Linux-run machines of thousands of geeks.
All the program does is give users the privileges they enjoyed before a recent change in copyright law, argues Yochai Benkler, a professor of information law at NYU Law. "Let's say you want to criticize the sexist content of a Hollywood movie. You need to be able to quote the movie. Obviously, you can't do that by hand so you're going to have to cut and paste from the video. Historically, that was permissible under copyright law. That was considered 'fair use.' But with the Digital Millennium Copyright Act, Congress allowed owners of copyrighted works to extinguish those user privileges."
The film industry calls it piracy and says the hackers are no better than common thieves, picking locks and stealing property. But as the Electronic Frontier Foundation's lead counsel points out, above and beyond the abstract legal defense of DeCSS, the MPAA is trying to get an injunction placed on software that isn't even doing what the MPAA accuses it of doing. "There's not a fiscal incentive to use the software for piracy," says Robin Gross, an EFF attorney. "For one, blank DVDs cost more than one with a movie." In essence, she adds, DeCSS is just an experiment in cryptographic research.
And the suit against it may turn out to be pivotal in determining how that research is conducted in the future. "If the judge finds for the plaintiff, and the decision isn't knocked down on appeal," says Yochai Benkler, "it will create an environment that's closed like nothing we've ever seen before."
Furthermore, the case may determine whether a journalist can publish this research. One of the other defendants in the case is Emmanuel Goldstein, a Web journalist and longtime publisher of the scrappy 2600 hacker quarterly. And the MPAA has amended its original complaint to include an injunction against linking to sites that host DeCSS, which are numerous. If it wins, the decision will set a precedent that could prohibit even a newspaper from pointing readers in the direction of hip sites like cryptome.org, the brainchild of cyphernaut John Young. Or places like lemuria.org and osiris.978.org/~brianr/css/css. html, where a research paper on the cryptography behind the MPAA's copyright protection is laid out in detail.
Of course, for Joe click-pack, it's free DVDs that matter. Although it's currently unfeasible to copy a DVD moviewhich takes up four gigs of memoryas bandwidths broaden there may be a time in the near future when it's possible to download your favorite movie, gratis.