DVD Cracking Case, Western Style
By Brad King
The two-pronged, bi-coastal legal war being waged against individuals who have distributed a code that can circumvent encryption on DVDs now focuses on First Amendment issues being raised in San Jose.
Thursday's court battle was to be held in front of a three-judge panel that makes up California's Sixth District Court of Appeals. The case focuses on an injunction filed against 21 individuals and 400 unnamed people accused of stealing trade secrets.
The DVD Copy Control Association (DVD CCA) -- an industry trade organization that licenses DVD technology, and which filed the original lawsuit -- was expected to argue that the defendants stole trade secrets when they distributed a code that circumvents encryption technology attached to DVDs.
However, attorneys representing the defendants will argue that the injunction violates the free-speech rights of programmers.
"The lower court didn't even consider whether code is speech," said Fred von Lohmann, senior staff attorney with San Francisco's Electronic Frontier Foundation. "Just because the DVD CCA is arguing they have a trade secret doesn't mean that the First Amendment goes out the window."
If the defendants didn't know where the original DeCSS code came from, von Lohmann said, the trade secret argument wouldn't hold up.
The EFF -- an American Civil Liberties Union for the digital age -- has never lost a case involving the "speech-as-code" argument, von Lohmann said.
The DeCSS code, written by a 15-year-old Norwegian boy, decrypts movies stored on DVDs. The decrypted movies can then be viewed on computers using the Linux operating system.
Removing the encryption technology on DVDs also allows anyone to make unauthorized copies of movies, which concerned the Motion Picture Association of America.
Along with music industry counterpart the Recording Industry Association of America, the MPAA has filed several high-profile lawsuits against corporations that have been involved in copyright violations and digital piracy.
The Napster and Scour file-trading services have both been shuttered after being sued for facilitating individuals in sharing digital music and movie files over the Internet. MP3.com was forced to pay over $140 million in damages after being found guilty of violating copyright for creating a digital database of music.
But the California lawsuit most closely mirrors another DeCSS case pending in federal appeals court in New York.
U.S. District Judge Lewis Kaplan granted the MPAA an injunction against hacker-zine 2600 last August after the publication distributed the DeCSS code, and linked to other websites that made the code available.
While there are stark differences in the DeCSS cases, the effect of either injunction being upheld would provide enough legal cover to any copyright or patent owner, said Bob Sugarman, a DVD CCA attorney.
"These cases are linked by their common aim, which is the prevention of posting the DeCSS code," said Sugarman, a lawyer with Menlo Park, California's Weil, Gotshal, & Manges. "That conduct -- distributing the code -- can be enjoined in either place."
The California case -- brought by the DVD CCA against individual hackers -- contends that programmers stole trade secrets when they reverse-engineered the encryption protocols attached to DVDs.
The New York case -- brought by the Motion Picture Association of America against the hacker-zine -- claimed that organizations that distributed the DeCSS code violated the anti-circumvention clauses in the Digital Millennium Copyright Act.
Judges from both coasts have granted preliminary injunctions that prevent the distribution of the DeCSS code, continuing a string of victories for the copyright industry.
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