Down By Law

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

Garbus knows lower courts are not often inclined to contradict Congress, so he's already plotting strategies for appeal all the way to the Supreme Court. The matter is being closely followed by Internet wonks, pundits, and practitioners, not to mention those civil libertarians who "get it."

"If the judge finds for the plaintiff, and the decision isn't knocked down on appeal," says Yochai Benkler, a professor of information law at New York University, "it will create an environment that's closed like nothing we've ever seen before."

Welcome to the latest front in the war for the First Amendment.


Eric Corley looks like a hacker. All stringy black hair, pale skin, and hunched shoulders, Corley has the unmistakable pallor of someone who spends most of his time alone in front of a computer screen. Hollywood could not have picked a better physical specimen for their relentless campaign to portray the open-source community—programmers and users of operating systems and software whose source code is freely available—as "thieves and pirates."

But Corley fails that test in one important regard: He does not hack. He "couldn't hack his way into a paper bag," says one ex-hacker who, naturally, chooses to remain anonymous.

No electronic trespasser, Corley is a journalist—and not one lacking in considerable credentials. His journal 2600, founded in 1984, boasts a circulation of 60,000. Between 10,000 and 15,000 visitors drop by the site. Corley hosts a weekly radio broadcast and has appeared on numerous talk shows, including Charlie Rose, Nightline, and 60 Minutes. He has testified before Congress and written editorials for the Timesand the Daily News. He gave the commencement address when he graduated from SUNY Stony Brook. He says the movie moguls didn't know how much fight they'd get when they homed in on him. "It was foolish of them to pick [2600]," Corley says. "We've always stood up against this kind of thing. We don't know how to back down."

The fact that Corley is a scribe for the hacker world may make him a likely suspect for the motion picture association, but not necessarily a wise one. Corley counts among his admirers—and readers—countless programmers and academics. Oddly, the same logic that made him a target for the movie industry also made him a client that Garbus couldn't pass up.

In the DVD trial, the First Amendment lawyer found a story with clearly drawn opponents worthy of a pulp-fiction plot: a powerful, wealthy industry versus a corps of overworked, denigrated protectors of civil liberties. This is white hats against black hats, heroes facing up to villains, good law butting heads with bad.

With self-righteous zeal, the motion picture association has harassed open sourcers and free-speech advocates who have posted, or merely linked to, the program once offered by Corley. Soon after Hollywood realized movie discs had been hacked, they fired a salvo of cease-and-desist letters to anyone offering DeCSS. On December 28, the trade organization in charge of licensing movie rights for DVD players filed suit in California, naming 21 individuals and "Does 1-500, inclusive." That's Does as in John, a deft bit of legal language that allows the plaintiff to attack retroactively anyone it chooses. In mid January, Norwegian authorities raided the Oslo home of 16-year-old Jon Johansen, who is accused of first providing DeCSS on the Web.

From the beginning, the movie association has made little effort to disguise its enmity toward the hacker community, calling them "nerds" and "anarchists." The group has sent cease-and-desist letters to people in Germany and Australia, places far outside the jurisdiction of injunctions issued in the United States. A 2600correspondent in Connecticut has been targeted with another federal suit, and a University of Wisconsin student was fired from his job at a computer lab after a letter from Hollywood landed on his boss's desk.

For Garbus, the plight of the open-source community is clear. "There is little question in my mind this persecution of hackers is, in many respect, analogous to the Communist red-baiting of yore," he says. "They are being unfairly maligned, and stigmatized, without due cause."

According to John Gilmore, the co-founder of the Electronic Frontier Foundation, a civil-liberties group that has picked up the defense tab in all the DVD suits, the program Corley posted was originally one part of an open-source project to develop a movie disc player for the Linux operating system favored by hardcore programmers. Linux supporters saw Hollywood's tactics as a call to arms. They posted thousands of copies of DeCSS throughout the Web as a show of support for Corley.

And if the online proliferation weren't enough, the lawyers representing Hollywood accidentally entered the entire DeCSS source code into the public record.

All this for a program that Corley and much of the computing community insist doesn't even do what the film executives say it does: encourage the copying of DVDs. Corley argues DeCSS exists solely to allow people to view movies they own on unlicensed players, like ones that run on Linux—an operating system Hollywood refused to license. "You have to wonder, why are they so upset at people knowing how to use their technology?" Corley says. "They don't care about copying. Copying is easy. People have been copying for ages. There are whole warehouses in Asia copying DVDs and nothing else."

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