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View Thread > CPS182s-DukeSpring05 > DeCSS > Interoperability with Linux not the issue


Jon Johansen, the original developer of software that descrambled DVD CSS (Content Scrambling System) developed the software so he could play DVDs on his Linux system. See http://www.cs.duke.edu/courses/cps182s/spring05/syllabus/decss.html

for links to relevant information about court cases related to DeCSS, particularly Universal v. Reimerdes.

With respect to DeCSS and the software, defend or refute the following:

If the code had been licensed exclusively for Linux, and not made available for Windows machines, there would be no brouhaha. This wasn't about Linux and free speech, it was about cracking, notoriety, and self-promotion --- Johansen shows this by cracking the iTunes AAC format (Fairplay DRM)

The basis for the charges in this case have to do with the circumvention of encryption techology to protect copyrighted works.  Thus, it would not have mattered had this code been made available exclusively for Linux based boxes.  The same claim still would have been present.  However, if the cracked encryption had been used for personal use and not distributed on the net, it most likely would not have been an issue.  First of all, it is doubtful that those concerned would even be aware if the circumvented encryption was used personally, and furthermore, one wouldn't be helping others to circumvent the DVD CSS encryption technology.  Nonetheless, one should be able to make a backup copy of a DVD under terms of fair use; he or she should also be able to watch that device using any available means.  The right to view that contents, afterall, were purchased by the user.  So I see three issues that are the very heart of this case: circumventing the encryption technology, helping other to circumvent the techology, and the widespread publication of DeCSS code.  For instance, cracking iTunes AAC format to be playable on devices other than the iPod or ported to an unlimited number of computers would garner the same sort or criticism if it were made publicly available to a large audience.  Interoperability wouldn't be an issue at all.

The defendants in the case argued that this limited their free speech rights since code is a form of speech.  Furthermore, since a computer program is also made up of machine code, it is also a form of speech that should be protected under the First Amendment.  The studios in trying to silence the free exchange of information were therefore inhibiting one's First Amendment.  In addition, it also prohibits "fair use" that is granted under traditional copyright laws--a problem that seems to be commonly exploited with the DMCA.  In the end, the decision was upheld against the defendants.

"The right to view that contents, afterall, were purchased by the user."

This isn't exactly true. The argument which has successfully been made is that the purchaser of a DVD at, say, Best Buy, entails the purchase of rights from the copyright owner to show the film in a home environment only -- you can't charge for admission or even show the film in public. In fact, Disney will send a replacement DVD at "cost" (something like $7 or $8, according to them) if your current one is scratched beyond repair, clearly demonstrating that what the end-user receives is a license. Whether this is legal or right is more a matter for contract law, but, clearly, the right to view is currently restricted.

This makes it harder to argue for DeCSS in a legal environment where the DMCA exists; it seems likely that as part of this same "contract" it would be possible that the copyright owner could stipulate the means through which the film could be viewed. The nebulous concept of fair use may still provide some relief, but the courts have successfully insisted that fair use reproduction does not have to guarantee the best means of reproduction possible.

This is, of course, the analog loophole, which Congress also attempted to close in the DMCA by mandating that analog copy protection techniques such as Macrovision be included in all new VCRs, both VHS and, if it makes a sudden and unexpected comeback, Beta. However, they did not include, for instance, S-VHS tapes or high-definiton PC TV-tuner cards, and it might still be possible to exercise fair use by, say, capturing the video off a DVD into a computer through an HDTV tuner at nearly original quality.

Whether this makes the DMCA ultimately futile is left as an exercise for the reader.