Killer Code

The First Amendment, fair use doctrine, and common sense were all casualties in the most recent decision in the Motion Picture Association of America's case against a DVD player for Linux operating systems.

In August, U.S. District Judge Lewis Kaplan found no legitimate purpose for the DeCSS program, which allows viewers to decode DVD movies and play them on computers. Kaplan fully accepted the MPAA's assertion that it was a pirate's tool and nothing more.

Further, the judge held that anyone who directly linked to the DeCSS program or described it in enough detail to allow others to reproduce it would be violating copyright law.

The court's one concession to the defendants: Kaplan ruled that the Web site which posted information on a program that could defeat copyright protection for DVD movies did not have to pay $4 million in plaintiff's legal fees.

The implications of Kaplan's decision are immense. He expressly found that writing computer code isn't like speech, which enjoys broad constitutional protections. Kaplan evidently believes that code is more like witchcraft, with dangerous, mysterious, and unpredictable powers.

"Society must be able to regulate the use and dissemination of code in appropriate circumstances," Kaplan wrote. "The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact." So code's capacity for evil, in Kaplan's view, requires strong state safeguards.

How strong? On par with those designed to thwart assassins. "Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement," Kaplan said. "Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action."

Kaplan also adopted the MPAA's view that there is, in effect, no such thing as fair use in the digital age. Those who want to make backup copies of copyrighted works or engage in other traditionally permitted forms of fair use would have to purchase analog copies for that.

This sweeping ruling is sure to be appealed, perhaps all the way to the Supreme Court.

But it is already possible to discern the world that big content owners want: Ever more restrictive "copyright protection" schemes will be introduced, some of which may even harm the quality and functionality of copyrighted work. (Some sound engineers say supposedly inaudible digital watermarks planned for recorded music aren't.)

Consumers will be told that "pirates" are to blame as independent work-arounds, adaptations, and evaluations of the schemes are suppressed by waving copies of Kaplan's ruling at Internet service providers, who will have to ban the posting of such material or risk legal action.