The current situation, according to critics of the DMCA, is like allowing someone to build a fence around a public pavement in front of a house: although you're allowed to walk on the pavement (read, reverse-engineer), you must hop the fence and trespass (read, crack the code) in order to do so. In other words, the DMCA criminalises 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, then buy a licence.
Bruce Turnbull, a Washington, DC, 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 authorised DVD player for Linux. "There's no justification for making the unauthorised 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 Electronic Privacy Information Center (EPIC) fought the legislation before it was passed in 1998, saying it would favour big corporations over consumers. Now it appears that 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," said Tara Lemmey, EFF executive director. "It's very poor form on the side of the music and movie industries to be using tactics that halt the very innovation that will move their businesses 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 theatres, 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 they're 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, so pirating DVDs just isn't cost-effective. What's more, DVD piracy rings throughout Asia can make counterfeit DVDs without ever cracking CSS.
See also Hollywood's war on open source.
Take me to the DVD Basement.