When it came to ex-tending copyright protection to the digital realm, content owners over the past few years have harped on the need to go after pirates and other outlaws who try to make money by stealing and reselling copyrighted works. Honest folks like Internet service providers (ISPs) had nothing to fear, we were told. That turns out to be a lie.
In New York in January, a U.S. district judge sided with the Motion Picture Association of America, the movie industry's powerful lobbying arm, granting a preliminary injunction against site operators who posted a DVD-encryption descrambling program that, in theory, might be used to make perfect copies of DVDs. The MPAA argues that the program, DeCSS, violates the Digital Millennium Copyright Act of 1998 because it "circumvents" DVD's security measures. The program, which originated as an attempt to build a DVD player for the open-source Linux platform, had been posted as a free download on several World Wide Web sites. Lawyers for the media guys are arguing that ISPs are responsible for everything–even a tiny piece of code like DeCSS–that transverses their far-flung networks.
The judge bought that reasoning and so included in his injunction the owner of an ISP that had the offending file on one of his servers. As a result, any and all copies of DeCSS must come down.
Interestingly, no one is claiming that the program was specifically written to rip off content owners–merely that it can facilitate such behavior. If such a mindset prevails in the courts, it will essentially outlaw backward engineering of software, a key element of the open-source method of software development. By definition only existing, licensed, proprietary methods for handling copyrighted content will be legal. Building your own player would be theft.
The New York case, MPAA v. Reimerdes, Corley and Kazan, and a similar one in California are both expected to go to trial soon. There the Electronic Frontier Foundation (www.eff.org) plans to fight Hollywood's content dons. Through a hired-gun Norwegian law firm, the movie industry pressed officials in Norway to arrest 16-year-old John Johansen and his father on charges of breaking a "security arrangement." Johansen was among the first to post DeCSS and his dad hosted the Web pages.
However, strong-arming teens worldwide won't change this basic fact for the content producers: The wired crowd to whom they would so desperately like to sell things is not a passive bunch. They are going to buy something, take it apart to see how it works, and re-arrange it in new ways. Criminalizing such behavior seems an odd way to capture that market.