Hollywood's war on open source

It's the Davids vs. Goliath. By attacking reverse engineering, Hollywood's barrage of lawsuits over DVD code strikes at the heart of the open-source revolution.

Matthew Pavlovich arrived home from a Caribbean cruise with his parents and grandparents over the holidays to discover he was a wanted man.

Back on shore, a string of messages from friends and acquaintances awaited the Purdue University senior. Among them, an ominous question: How does it feel to be a defendant in a lawsuit? Puzzled, Pavlovich did some investigating and soon learned he was one of dozens of defendants named in one of a barrage of DVD lawsuits: accused by the DVD Copy Control Association of the theft of trade secrets for linking to DeCSS, a decrypting program that potentially lets users view and copy DVD movies.

That came as a surprise to Pavlovich, since he wasn't aware of any links to DeCSS on his site and is trying to create applications that enhance, not pirate, DVDs. Pavlovich is working on LIVID, a video and DVD development project for the Linux operating system. Among his plans -- to make a voice-activated system that lets users scan a DVD movie to find a certain line of dialogue, like the part in "Sudden Impact" when Clint Eastwood as Harry Callahan sneers, "Go ahead, make my day."

"It's kind of a shame they don't see the big picture," Pavlovich said of his legal adversaries, who misspelled both his name and the name of his site in the suit. "The big question is: What are they going to do next? What are they going to force us into next?"

To find the answer, you only need look at what Hollywood has already done.

Historically, Hollywood has fought against any new technology, from radio to television to VHS, it feared would dent its core business: the movies -- worth $6.9 billion in U.S. box office alone in 1998.

The last time the industry went into the trenches was back in 1984, when it lost a Supreme Court battle to ban the home video player format. Sixteen years later, the story could have a much different ending. This time the industry is armed with the Digital Millennium Copyright Act (DMCA), a law passed in 1998 that gives copyright owners unprecedented control over products such as DVDs or CDs. Under the act, the entertainment industry's content control continues even after its products have been sold and extends over previously legal actions like reverse engineering. In fact, under the DMCA the VCRs in 84 percent of U.S. households could, theoretically, be deemed illegal because they can be used to tape copyrighted TV shows and movies.

DeCSS and the Content Scrambling System (CSS) are at the kernel of much of the latest legal brouhaha. CSS is the algorithm used to encrypt DVD content -- an algorithm that was broken last year by researchers during an international open-source project. DeCSS decrypts the CSS algorithm to play DVDs -- opening up the potential for DeCSS users to also copy DVDs.

Then again, it's irrelevant whether or not DeCSS is used to copy a single DVD. According to entertainment industry officials' reading of the Digital Millennium Act, DeCSS circumvents copy protection to play DVDs -- therefore, they say, it is illegal.

Small wonder then that two industry trade groups, the Motion Picture Association of America (MPAA) and the DVD Copy Control Association (DVD CCA), are not only currently testing copyright law in the digital age -- but also waging war on the open-source culture.

The DVD CCA, which is targeting Pavlovich and at least 70 other defendants, alleges that simply linking to DeCSS code amounts to trade-secret theft. The MPAA, meanwhile, is wielding the DMCA, in two federal lawsuits filed in Connecticut and New York, accusing four people of using DeCSS to circumvent its copyrights. Moreover, since the DMCA passed, other companies -- including Real Networks -- have also cited the law in separate suits to go after new technology they claim threatens their copyrights.

It doesn't seem to matter to the plaintiffs that the defendants say they only cracked CSS in order to reverse-engineer the technology so they could study it, enhance it and create compatible versions of it for alternative OSes -- a process that's protected under copyright law. Not that some defendants say they were trying to create a Linux DVD player and add Linux-based enhancement to the product. Never mind the fact that court rulings have declared software code protected as free speech.

Thus far, none of that seems to matter to the courts, either. In the MPAA suit filed in U.S. District Court in New York and the DVD CCA suit in Santa Clara, Calif., a judge has temporarily blocked the defendants from posting or linking to the DeCSS code.

"It appears that DeCSS is being distributed in a manner specifically intended to facilitate copyright infringement," wrote federal judge Lewis Kaplan.

The current situation, according to critics of the DMCA, is like letting someone build a fence around a public sidewalk in front of a house. Although you're allowed to walk on the public sidewalk (read: reverse-engineer), you must hop the fence and trespass (read: crack the code) in order to do so. In other words, the DMCA criminalizes normally legal actions by allowing copyright holders to lock them behind encrypted code.

Lawyers for the plaintiffs, on the other hand, say the solution is simple: If you want to use CSS, buy a license.

Bruce Turnbull, a Washington, D.C., attorney for Weil Goshal & Manges, is counsel for the DVD CCA in the California case. He points out that at least one company already has created an authorized DVD player for Linux. "There's no justification for making the unauthorized player," he said.

Cyber advocates have a message for those surprised by the onslaught of lawsuits by big industry players: I told you so.

Both the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC) fought the legislation before it was passed in 1998, saying it would favor big corporations over consumers. Now it appears their worst fears -- crackdowns on freedom of speech and civil liberties -- are coming true.

"A lot of fears that were expressed then are starting to play out in the DVD cases," EFF Executive Director Tara Lemmey said. "It's very poor form on the side of music and movie industry to be using tactics that halt the very innovation that will move their business forward."

Instead, the industry should look for new business models, like it did when it lost the 1984 Betamax case, Lemmey said. Back then the industry had claimed that the advent of in-home videos ultimately would ruin its business. Instead, movies continue to thrive in the theaters, and the industry has reaped millions in video licensing fees. "They tried to stifle a technology that ultimately made them a lot of money," Lemmey said.

The industry argues that pirated DVDs are particularly dangerous because, unlike VHS tapes, they don't lose quality when copied multiple times. Therefore, the movie industry says it needs strong laws in order to prevent piracy -- laws such as the DMCA.

But some of the defendants point out that they're not pirating movies, just adding new features. In fact, a blank DVD costs more than a movie, meaning pirating DVDs just isn't cost-effective. What's more, DVD piracy rings throughout Asia can make counterfeit DVDs without ever cracking CSS.

Don Marti, a Linux advocate, said the cases aren't about piracy.

"Why is the Motion Picture Association and the DVD CCA going after us, the Linux users, instead of the massive infringers? Because they're attempting to exert control," Marti said, pointing out as an example that current DVDs don't allow people to fast-forward through commercials and trailers at the beginning of a movie.

Robert McAughan, an intellectual-property attorney with Houston-based Howrey, Simon, Arnold & White, said the movie industry could be overstepping its copyright authority by making viewers watch the DVD trailers. "If you look at its purpose, the DMCA was to extend traditional copyright notions and protections to the digital age," he said. "There is no guarantee of a copyright holder that I know of to force someone to watch advertising."

However, McAughan said that the laws surrounding any new technology must be tested in the courts, and each side will push as hard as it can to protect its business interests. "The rough edges will get defined," he said. "With some of the newer laws, you're really going to have to wait to see how the courts address them."

Most movements have a poster boy, and the DeCSS defendants have found theirs in 16-year-old Jon Johansen. In January, Norwegian police raided the home of the teen and questioned both him and his father before confiscating his computer and cell phone. The teen's crime? Being one of the first people to post the DeCSS code.

Overnight, Johansen became a cause celebre. At LinuxWorld 2000 earlier this month, supporters of the defendants passed out bumper stickers that read "Free Jon Johansen" (for the record, Johansen isn't in jail) and "Coding is not a crime." Linux lovers have even taken the issue to the popcorn brigade -- handing out flyers at movie theaters and selling T-shirts containing the DeCSS code.

This isn't a case of weird geek evangelism, either. For Linux programmers the DeCSS battle strikes at one of the pillars of the open-source revolution: the right to reverse-engineer. After all, it's through reverse engineering that many developers create applications for the OS that's gone from underground to alternative in the past two years.

Still, as the law currently stands, it's unlikely the Linux faithful's efforts will sway the federal and county judges who are deciding the fate of the issue. And that's a shame, said Mark Lemley, a University of California at Berkeley law professor who's following the debate.

"I think the DCMA as it's written is a disastrous statute," Lemley said. "Congress probably didn't think all the way through the ramifications of the way they structured the bill."

Lemley pointed out that you potentially could encrypt a book or research paper. Under the strictest interpretation of the DMCA, someone who cracked the code to read the book and quote it for a review would be a criminal. He said the DMCA could lead to an incremental chipping away of rights such as fair use and research-oriented reverse-engineering.

"It's a real mistake to try to roll back technology," he said. "My fear is if we sort of lose these freedoms by degree, no one will really notice."


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