August 17, 2000 1:35 PM PDT

Judge halts posting of DVD cracking code

A federal judge handed the motion picture industry a legal win today in its battle to keep DVDs from being copied and distributed online.

New York District Judge Lewis Kaplan ruled that hacker publication 2600 could not publish online a software program dubbed DeCSS, which allows DVD movies to be decoded and played on personal computers. Posting the code--or linking to direct downloads of the program--violates copyright law because it is an unauthorized way of breaking through the movie industry's copy protections, the court ruled.

The judge called "baseless" the publication's defense that computer code is protected by First Amendment free speech provisions. Code can be used as a political or artistic statement--but using it to violate copyright law is still illegal, Kaplan said.

"Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement," Kaplan wrote in his opinion today. "The Constitution...is a framework for building a just and democratic society. It is not a suicide pact."

The DeCSS software program is one of several recent technological Napster wildfire developments that scares the motion picture industry, which is trying to avoid the massive online piracy already being fought by the music industry.

Originally created by a young Scandinavian programmer as a way to allow computers running the Linux operating system to play copy-protected DVDs, the software program quickly became the centerpiece in debates over online video piracy.

One popular technology for compressing films and distributing them online, dubbed DivX, included instructions for copying films that explicitly named DeCSS as a useful tool. The Motion Picture Association of America (MPAA) latched on to such anecdotal evidence as proof that the software was being used primarily as a piracy tool.

It sued 2600 publisher Eric Corley and several other Web site operators that posted the software or its source code, contending that they were violating copyright law by helping propagate an illegal program. Several of the defendants agreed to pull the controversial code, but Corley chose to fight, linking to other sites on the Web that hosted the software even after a judge barred him from posting the code himself.

Today's decision unambiguously blocks Corley from posting the software or linking to sites that host DeCSS. The bar against hyperlinks had been painted by some free speech advocates as blocking of Web expression, but again the judge disagreed.

"To the extent that defendants have linked to sites that automatically commence the process of downloading DeCSS upon a user being transferred by defendants' hyperlinks, there can be no serious question," Kaplan wrote. "Defendants are engaged in the functional equivalent of transferring DeCCS code to the user themselves."

Kaplan distinguished between that scenario and other types of linking, noting that links to pages containing content other than DeCCS downloads are "potentially more troublesome." But he said the distinction was unimportant in this case because the defendants had linked to direct downloads. Those links, he said, constitute "trafficking" in DeCSS under the Digital Millennium Copyright Act (DMCA) and are thus illegal.

MPAA attorney Charles Simms said the ruling was expected, given that Kaplan had previously granted an injunction against the defendants.

"The motion picture association had a powerful case from the outset," he said. "The defendants made a good try, but there were no good defenses under the law."

Simms added the decision provides one of the first major validations of the DMCA.

Corley attorney Martin Garbus said he expected today's results, and he would appeal to the Supreme Court. Kaplan had misinterpreted the First Amendment as it applies to the Web, Garbus said.

"Judge Kaplan's decision, if allowed to stand, and it will not, would cripple the free exchange of information on the Internet," the attorney said in a statement. "It would, in interfering with free linking, stop one of the greatest hopes for the Internet."

 

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