Down By Law

When Movie Moguls Wage War to Protect Copyright, the First Amendment Ends Up on the Cutting Room Floor

In the world of Martin Garbus, we are all teachers and he is the student. This at least partly explains why an otherwise innocent DVD player lies in pieces on the coffee table in his Madison Avenue law office. The teacher today is Chris DiBona, prominent evangelist of the open-source creed—the belief that computer code, like speech, wants to be free.

DiBona is teaching Garbus, who only recently learned how to work his own e-mail, why a miniscule bit of silicon in this player—and an equally miniscule program built to bypass it—have sparked a federal case that will determine whether we pass through the digital age with the First Amendment intact.

As DiBona speaks, pointing at various organs in the innards of the DVD player, Garbus leans forward and listens intently. Very intently. You can almost hear the sound of files shifting and expanding inside Garbus's cerebrum. The force of this man's concentration could bend spoons, or laws. "I chose this life so I could forever remain a student," Garbus says, in a not-infrequent display of mock humility.

This life, as it happens, has also allowed Garbus to remain a high-profile rebel. Perhaps the closest thing in New York to a modern-day Daniel Webster, Garbus has made a living by fighting the dark side in all its forms. A laundry list of Garbus's clients reveals a Zelig-esque talent for being on the right side of the right fight at the right time. Garbus fought for Lenny Bruce in '64, for Timothy Leary in '66, and against Alabama governor George Wallace in '68. A few years later he hid the Pentagon Papers in his attic for reporter Daniel Ellsberg. He has argued before the Supreme Court on 20 occasions, winning each time. Garbus has fought to protect the copyright of work by Samuel Beckett, Robert Redford, Al Pacino, and John Cheever.

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The hacker's writer: Web scribe Eric Corley launched a First Amendment fight when he posted a program that breaks the code of DVDs.

So why has Garbus, with his eye for the limelight and his zeal for the sanctity of intellectual property, taken on the cause of a Long Island cyberjournalist accused by the Motion Picture Association of America of being a copyright thief?

"He gets it," says his client, Eric Corley, publisher of the quarterly journal 2600(www.2600.com), commonly referred to as the "hacker bible," and enemy number one of big Hollywood.

Last fall Corley, who goes by the nom de Net of Emmanuel Goldstein, posted to 2600a program that allows technology-savvy folk to decipher the code of DVDs and then view the films on unlicensed players. The open-source set calls this a First Amendment right. Hollywood calls it piracy and fears a brave new world where people get their movies on the Web for free. In January, the motion picture association slapped Corley and two other defendants with a federal suit alleging copyright violation.

When Corley says Garbus "gets it," he's offering no light praise, since factual error, bald deception, and simple misunderstanding have obscured what initially looked like an open-and-shut case for the motion picture industry. The movie moguls are banking on the Digital Millennium Copyright Act of 1998, which expressly forbids providing anything "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work." In plain English, that means you can't hand out a tool that breaks through copyright protection.

The tool now in question is DeCSS, which appears to smash those barriers, bypassing the Content Scrambling System that guards DVDs and allowing users to do with the contents what they will.

Armed with that premise, Hollywood took round one by a rout in January, as a federal district judge granted an injunction that blocked Corley and the other defendants (who have since been dropped from the suit) from posting DeCSS. But Corley battled back, posting a collection of links to sites around the world willing to offer the program. That prompted the motion picture association last month to ask that the injunction be extended to ban such links.

By any account except Hollywood's, granting the request would be an egregious gagging of free expression. A newspaper like this one, for instance, would be forbidden from telling its readers how to find the source code to DeCSS on cryptome.org. This so-called prior restraint is a special bugbear of the fourth estate. No surprise, then, that The New York Timeshas expressed its concern and may file a brief on behalf of Garbus and his client.

For his part, Garbus will submit that DeCSS is an exercise in cryptography, an innovation in interoperability, and protected speech to boot. Under that argument, the program should be covered by the "fair use" principle of the First Amendment—putting the Digital Millennium Copyright Act and freedom of expression at irreconcilable odds.

The case for the defense does not look good. The entertainment industry is garnering court victories in the fight between the right of commerce to protect intellectual property and the right of Netizens like Corley to speak their minds. Last week, a federal judge in New York ruled for the Recording Industry Association of America in its copyright infringement suit against MP3.com, which allows users to post and download CDs for online listening.

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