Down By Law

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

Yet when the film industry first filed suit in California last November, president Jack Valenti raised the specter of marauding hackers and thieves out to defraud Hollywood. Valenti told Daily Variety: "[W]e don't have broadband access today, so we don't have many [pirated] movies on the Internet today . . . By the middle or end of next year, we will have an avalanche."

But a month before Valenti's apocalypse was scheduled to appear, a lawyer for the industry group admits he, the former deputy director of the antipiracy division, has yet to uncover a single instance of piracy using DeCSS. "Do I know of any incidents of piracy, personally? No," says Greg Goeckner. "But I would have to check with my team in the field."

The movie association may have a hard time uncovering any pirates sailing under the DeCSS flag. Gilmore, of the Electronic Frontier Foundation, explains that DVD movies are far too big for easy duplication. "The only place you could store your movie would be on your hard drive," he says, "and even then you could only hold four such movies at most." Gilmore also points out that it could take hundreds of hours to download a DVD over a 56k modem, so merely transferring these files would mean disabling your computer for weeks, all for the purpose of gaining a bootleg copy of The Matrix. The film association hasn't found any instances of DeCSS piracy for one simple reason: There's no cause to do it.

The writer's lawyer: Attorney Martin Garbus represents the cyberjournalist who posted a DVD-hacking program.
The writer's lawyer: Attorney Martin Garbus represents the cyberjournalist who posted a DVD-hacking program.

If DeCSS isn't likely to be used for pirating movies, why does the program pose a threat so dire that Hollywood turned to the courts for relief?

This will be one of Garbus's first questions, if he ever sees the courtroom on Corley's behalf. On April 25, attorneys for the movie association filed a motion to disqualify Garbus from the case. Garbus's firm, it turns out, represents Scholastic in an unrelated case. Time Warner, a member of the association, owns Scholastic, and you're not supposed to defend and attack the same client at the same time. This technicality may be enough to kick Garbus out of the suit. "He probably has a 50-50 chance," speculated one legal observer close to the action.

If Hollywood wins, Garbus is gone, barred from appearing for Corley as counsel. The Electronic Frontier Foundation and Corley go back to soliciting solicitors, their appeal enhanced through association with Garbus.

If the motion fails, the movie execs will have a formidable foe on their hands. War is hell and so is law, and Garbus sees little difference between the two.

But a firebrand trial lawyer isn't all Corley gets. Garbus is an icon of "East Coast Code," a term coined by Lawrence Lessig to describe the legal code. Garbus must now convince the court to consider the rights of "West Coast Code," or source code.

He will argue that DeCSS falls under the First Amendment's fair-use exception to the Copyright Act. The doctrine of fair use permits, for example, a reporter to quote paragraphs from a book or print sections of a pamphlet.

In the case of DVDs, the only way a consumer can copy specific portions is to use DeCSS. Barring people from doing that is a more insidious encroachment on individual liberty than it first appears. "Say you want to criticize the liberal leanings of Hollywood, or criticize the sexist movie of this or that," says Benkler, the NYU law professor. "You need to be able to quote little pieces of the movie. You can do that under the copyright law, because that's fair use, but using DVDs lawfully as the [film association] reads the law, you can't do that. This really extinguishes user privilege to an unprecedented degree."

This same privilege was tried—and survived—in an oft-cited suit in 1984 involving Betamax, which manufactured early video recorders. The question then was the same one asked now: whether the entertainment industry's right to safeguard its products carries more weight than the right of individuals to access copyrighted works for their own expressive, and protected, ends.

The First Amendment also protects a process called reverse-engineering, which was used to create DeCSS. Reverse engineers take things apart in order to learn how to put them back together in a better form.

In other words, to build a better mousetrap. The right to take things apart—whether breakfast cereals or pharmaceutical compounds—is a time-honored tenet in American law, held to encourage innovation.

So far, judges have been friendly to reverse engineers. This year, the Ninth U.S. Circuit Court of Appeals ruled that Connectix's Virtual Game Station, which allows Mac users to play Sony PlayStation games on their computers, had not violated copyright law because it was reverse-engineered from PlayStation.

In the case of DeCSS, the upshot is that the program is already out there. The DVD encryption was a flimsy system that everyone in the open-source world knew would be hacked, sooner rather than later. East Coast Code may enjoin open-source programmers and "pirates" from posting and trading DeCSS, but with an estimated 300,000 copies already in existence, only West Coast Code, i.e., a better encryption scheme, is going to maintain Big Hollywood's grip on user privilege. In the Wild, Wild Web, you're responsible for your own fences. East Coast Code don't mean shit.

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