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Mythology dominates MPAA strategy in DVD trial

Lies, damn lies and statistics

The Motion Picture Association of America (MPAA) suit against three New York Webmasters who made available for download the controversial DeCSS utility which defeats the CSS encryption scheme on DVDs appears to be founded on a queer blend of statistical rot and hacking hysteria, not to mention a few outright lies.

Among the more transparent stretchers to which the MPAA has been clinging is a claim that DeCSS is flooding the Internet with pirated DVDs. Among the more outrageous is a claim that decrypted DVDs are now being sold in hard copies.

"The Internet now contains offerings of movies with good visual and audio quality, something that did not happen before the advent of DeCSS," MPAA attorney Leon Gold told the court. "Buyer rated movies played from decrypted DVDs are also now being sold in hard copies. It doesn't take a rocket scientist to understand how this happened."

The lie here is one of omission; it simply is not necessary to decrypt CSS to make a hard copy or ten thousand of a DVD, so the existence of such copies in no way indicates prior use of the DeCSS utility, as every rocket scientist and his lowbrow deaf-mute assistant well knows.

"Decryption of DVDs with DeCSS and the offering and transmission of the contents on the Internet has begun, as your Honour will soon see. It's picking up steam and it will become an avalanche unless halted by this Court," Gold went on.

But later, under cross examination from attorney Martin Garbus, Warner Brothers chief of business affairs Marsha King confessed that she had never seen so much as a scrap of evidence, from her studio or from any other involved in the case, of a single DVD having been pirated via the Internet as a result of DeCSS decryption.

Nevertheless, "plaintiffs have already suffered great damage because their protective device has been taken away by the defendant's acts," Gold maintained. "Their films on DVDs are no longer protected by an anti-circumvention device. Plaintiffs would not have issued DVDs without a protective encryption system, and the threat of widespread copying is here and the process has begun."

One stuffed law

It's the influence of the Digital Millennium Copyright Act (DMCA), carelessly drafted by Congress, which makes this such an interesting legal issue. Because of an inconsistency within the Act, it really is not necessary for the MPAA to prove that they have suffered damage as a result of the DeCSS utility being used; the Act makes it a crime to defeat a technical access control like CSS when it is used to protect a copyrighted product against infringement.

Thus all the industry really needs to prove is that DeCSS does a fair job of defeating CSS, and that CSS is used to protect copyrights.

It's that second bit that makes for all the courtroom fun. CSS actually does a preposterously bad job of protecting copyrighted material, as we can see when we consider that it need not be defeated to make duplicate hard copies of a protected disk.

What it really does is prevent DVD content from being viewed by software or hardware devices not licensed by the movie industry, which has implications far beyond the simple protection of copyrights - reaching into such quagmire regions as ultimate industry control of DVD content, for an example.

Warner Brothers' Marsha King gave a hint of the MPAA's interest in CSS, and the DMCA which it hopes will protect CSS, when she testified to "the loss of confidence that the studios would have in continuing to distribute product in [DVD] format" in a post-DeCSS world.

"There's a tremendous amount of investment that's gone into the development of DVD: the investments of the studios included in mastering a very expensive product, the investment of the consumer electronics industry [which has already licensed the CSS scheme for its products], the investment of the computer industries and equally the investment of what will be, we think, 12 million consumers by the end of the year 2000 purchasing a product that is widely accepted around the world."

Thus, when a programmer with Norwegian games maker Funcom, Frank Stevenson, described how ludicrously easy it was for him to defeat the CSS scheme, it became clear that the major value of the DMCA to the entertainment industry is the way it protects the incredibly lame crypto technology in which the industry has invested foolishly, and by now, heavily.

History in the making

Another ticklish spot in the DMCA is its internal inconsistency in making it illegal to defeat a technical access control meant to protect copyrighted material while at the same time declaring that nothing in the Act may be construed to impede Fair Use of the protected material.

This becomes a plain contradiction whenever an entire work is protected by an access control like CSS. Publishing a snippet implies that the scheme has been defeated, and a crime, therefore, has been committed.

This defect in the Act clearly needs to be resolved in the courts, and defence attorney Martin Garbus is more than willing to see the process through to completion. He clearly views this case as an opportunity to make judicial history on the appeals circuit (not to mention the TV talk-show circuit).

"I think that this case will proceed, Garbus told the court. "It will go to the Second Circuit; it will go to the United States Supreme Court. I think all of us have a very heavy responsibility to make a record in this case that is adequate for the kinds of determinations that are going to be made for a statute of this kind."

Clearly the words of a man prepared to make history. But the judge, Lewis Kaplan, shows considerably more modest ambitions, such as cutting through all the grandstanding and high rhetoric from both sides, and concentrating on the law.

The issue for Judge Kaplan appears to be vastly simpler than re-writing federal legislation. To MPAA witness King he observed: "It's as if what you are trying to do here is to stop 37,000 kayakers coming down the Hudson River, and you're asking for an injunction against one of them on the premise that coming down the Hudson River in a kayak is illegal."

"Even if you get that injunction, there are going to be 36,999 kayakers coming down the river. Isn't what you are really after here a determination of whether it's illegal to kayak down the Hudson?"

We'll take that to suggest that the judge will do what he can to confine himself to ruling on the law, which in this case is difficult enough: 'Is it illegal for a Webmaster to make available, or link to sites that make available, a utility or information which can be used to defeat a technical access control as protected by the DMCA?'

As for which way he will rule on that, we wouldn't dare predict. The issue of linking alone is rich with implications touching on the free exchange of ideas on the Internet - a function for which, we recall with some effort, it had been designed in the first place.

Touchy as that is, we expect the judge to keep as narrow a focus as possible, if for no other reason than to play his part and exit the stage as soon as decency will permit and so spare himself Gold's and Garbus' daily rhetorical performances, towards which he has shown visible signs of tiring.

As for the wider issues of whether the DMCA actually outlaws Fair Use, the indications so far suggest that Judge Kaplan will be pleased to watch from some comfortable perch on the sidelines as the appellate courts wrestle with that immense can of worms, as they inevitably must. ®

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