DeCSS, fair use, and the Bunner injunction

This Tech Talk column originally appeared in The Exponent (University of Alabama in Huntsville), Vol. 33, No. 11 (November 8, 2001). Digitized issue: UAH LOUIS archive. Reproduced here courtesy of that archive.

Technology Writer

To mark the end of yet another skirmish in the DeCSS debacle, the Sixth District of the California Court of Appeal reversed a preliminary injunction that would have required Andrew Bunner to remove from his website the DeCSS source code and links to other web sites with copies of or links to the DeCSS source code.

For those unfamiliar with the case, I’ll provide a little background. DVD movies are stored in a digital format, and, without some copy protection mechanism, it would be possible to make an arbitrary number of perfect copies. CSS, the Content Scrambling System, is the copy protection mechanism that was supposed to preclude the rise of a Napster for trading movies. The Motion Picture Association of Armerica (MPAA) became very upset when copies of a program—capable of bypassing CSS—called DeCSS (allegedly the work of a 15-year-old Swede named Jon Johansen who want to play DVDs on his Linux box) began appearing all over the World Wide Web. In an attempt at damage control, the MPAA the DVD Copy Control Association, and other interested parties went to court.

This debate is full of interesting (but also important) philosophical questions. For instance, what degree of control ower their work do copyright holders enjoy? Althotagh opinions here vary widely, most would agree that creators should not have absolute control over their creations. U.S. copyright law codifies this notion in the so-called fair use doctrine, which allows use of a copyrighted work (including copying) for certain purposes such as satire, commentary, news reporting, or research. Digital copy protection, however, tends to eliminate fair use (and sometimes even legitimate use) altogether. This is just another instance of the same bad argument: a few aren’t responsible in their exercise of a right, so everyone must lose that right.

Where does the blame for DeCSS really lie? Why is the motion picture industry prosecuting people for making the DeCSS code available on their websites when thew ought to be pursuing the company that made DeCSS possible? Xing Technology Corporation’s DVD player software left its CSS master key (i.e., a magic number that unlocks CSS protection) in the clear, a botch that amounts to violation of a non-disclosure agreement. Instead, the MPAA and DVDCCA chose the easier marks and went after a band of small-timers.

The defendants in the various lawsuits related to DeCSS have been using an interesting defense: source code is speech and is therefore protected the First Amendment. In DVD Copy Control Association v. Brunner, the court held that the DeCSS source is “pure speech”—a phrase from a 1969 Supreme Court decision that held that students could wear black armbands in protest of the Vietnam war while at school. The court also found that “the trial court’s prohibition of future disclosures of DeCSS was a prior restraint on Bunner’s First Amendment right to publish the DeCSS program” and noted that “the Supreme Court has never upheld a prior restraint, even when faced with the competing interest of national security or the Sixth Amendment right to a fair trial.”

The MPAA has been draconian in exercising its control over DVD movies. For example, if you went on vacation in Japan and bought a DVD, you wouldn’t be able to play it when you returned home because both DVDs and players have special region codes, and licensed players refuse to play “out of region” DVDs. Another annoyance is the way some DVDs lock out fast-forwarding during previews. The DeCSS fire is far from out, but maybe we’ll benefit in the end from more consumer choice.