He Who Waits

Fate of Hackers’ Hero Now in Judge’s Hands

Yet in testimony marked by a remarkable simplicity, Johansen told the court that, contrary to the studios' claims, he had written DeCSS only to allow Linux users to play the same movies available to Windows and Mac users. He also revealed that the authorities in Norway not only declined to pursue the investigation, but that the Norwegian government had awarded Johansen a prestigious scholarship for his "contribution to society." Far from demonizing its hackers, Norway, it would seem, lionizes them.

"Nobody's in court arguing for the right to copy movies."

Both sides in the DVD trial have pledged to appeal a losing decision, with one member of the defense legal team noting, optimistically perhaps, that "the case could be before the Supreme Court as early as next year." At issue will be not only the legal protection afforded the decryption program, DeCSS, but, quite possibly, the future of online media.

Though the DVD trial was roundly upstaged by news of Napster's sudden demise and just as sudden recovery, close observers of the judicial system note that the DVD trial may set the more significant legal precedent.

The prosecution claims that DeCSS poses the threat of irreparable harm to film copyright holders, and is nothing more than a utility for piracy. A clause within the Digital Millennium Copyright Act specifically forbids the "circumvention of copyright protection schemes." The plaintiffs, then, occupy a distinct redoubt in the actual letter of the law. On its face, the program would seem to be in clear violation of the statute.

Not so, claims the defense. "Nobody's in court arguing for the right to copy movies," says Wendy Seltzer, a fellow at Harvard's Berkman Center for Internet and Society and a staunch supporter of the defense. "The defense is arguing for the right to view movies on a different platform, a platform of their choice, and the right to use an excerpt in an academic presentation, which, currently, the plaintiffs would prohibit."

Few question whether the film studios, like the recording industry, will need to protect their copyrighted material. "These are people who've invested a lot of money, and they have a right to protect their revenue," says Meg Smith, another fellow at the Berkman Center for Internet and Society. "At the same time, an idea is not a chair. We traditionally have not wanted to treat intellectual property like physical property, like a chair, in which only one person can sit at a time. Ideas are very different, and we have tended as a society to believe that ideas should not be locked up for the use of one person."

The rub of the case, as Judge Kaplan notes, is that "the horse may already be out of the barn." By all accounts, hundreds of thousands of copies of DeCSS are already in existence, which could make any injunction worthless. In the end, the courts may provide far less protection for the movie studios than they could provide themselves, simply by whipping up a means of protecting DVDs that isn't vulnerable to every code-happy grade-schooler with a keyboard.

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