By Jared Chausow
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Last week Corley's defense team introduced its final witness, and in doing so closed the trial portion of the court case that has been the focal point of Corley's life since he was first sued last year for posting DeCSS, a now infamous program, on his Web site (2600.com). (DeCSS breaks the encryption system used by the film industry to keep people from making copies of their DVD movies.) And because this case has been broadly viewed as the first real test of the controversial Digital Millennium Copyright Act of 1998, it has also become the focal point for groups ranging from entertainment insiders to cyberlibertarians and the open source community, which believes that programming code, like speech, wants to be free.
As the prosecution, the eight major motion picture studios have banded together, arguing that the utility runs afoul of the DMCA's provision prohibiting circumvention of technology used to protect copyrighted materials. For their part, Corley's team of defense lawyers insist that DeCSSwritten as part of an open source project to allow Linux computers (an open source platform rapidly gaining in popularity) to play DVDsmerely provides consumers with the kind of "fair use" rights, such as taping a CD so you can play it in your car, that Americans have historically enjoyed.
They also argue that computer code is just that: code, a language like any other, capable of expressing ideas and therefore worthy of First Amendment protection. This principle came to the fore more than once during the trial, but never more poignantly than when Corley was asked under oath if he knew whether DeCSS would work when he posted it along with an article about the cracking of the movie industry's encryption scheme.
"The reason we posted the source code and the accompanying story is because it was already a story," said Corley, who wore his signature black pants and shirt throught the trial and was called as a witness for the defense. "We saw [it] as a fascinating story, and we printed that story, we printed what the story was about, which was our source, our primary source. Here is what they are talking about, here is the source code." Not to have posted the source code, Corley testified, would have been like publishing an article about a photograph without publishing the photograph itself.
Now Corley's fate, and that of computer code as speech, rests with U.S. District Court Judge Lewis A. Kaplan. Both sides are set to file their final briefs on August 8, and Judge Kaplan will issue a ruling shortly thereafter. He left plenty of doubt about the direction of his thinking. In his closing comments, he noted that while "probably nothing much has changed" regarding his analysis of the DMCA and its stiff protection of copyright, he admitted he found arguments made by the defense's final witness, computer scientist David Touretzky, "persuasive" and "educational."
Touretzky provided the grand finale in his Tuesday testimony. "I work in artificial intelligence and computational neuroscience, and my theories are expressed as computer programs," he told the court. If computer code is not afforded full protection as expression under the First, he says, "anyone who publishes a computer program is at risk." Touretzky walked the court through his "Gallery of CSS Descramblers" (found at cs.cmu.edu/dst/DeCSS/gallery/index.html), in which DeCSS is expressed in several different ways, from English to object and source code.
The key word in all of this is expressed. If you can use any kind of code to express an idea, argue Touretzky and Goldstein, then that code is a language.
If Judge Kaplan has indeed cottoned to this notion, it would mark a great victory for Corley and his defense team, which is supported by the Electronic Frontier Foundation (eff.org), a cyberliberties group. Frustrating the oddsmakers, though, the judge also noted that even if computer code, "object or source," were considered expressive, "which way that cuts is another matter." He pointed out that even once speech is recognized as expressive, it does not enjoy unlimited protection under the First Amendment. In other words, libeling a financial trader may be expression, but it's also illegal conduct, as is pirating copyrighted intellectual property.
Another witness, however, made clear that piracy was never the objective behind writing DeCSS. Jon Johansen, the Norwegian teen cracker who started this mess by crafting DeCSS, finally had his day in an American court. Johansen and his father became the center of a media circus back in January when Hollywood pressured the Norwegian Economic Crime Unit to investigate the pair. The Motion Picture Association of America painted Johansen as a marauding underage pirate.