Just ask Norwegian teen-ager Jon Johansen, who, after police raided his bedroom in December 1999, found himself being indicted for the crime of attempting to watch a DVD.
Johansen had wanted to watch DVDs on his computer, which ran the Linux operating system. There was no DVD viewing software for Linux, however; the DVD Copy Control Association, the MPAA-led industry group that controls and licenses DVD technology, had refused to countenance the open-source alternative operating system. Johansen figured he could just make his own Linux player, but this entailed working around the Content Scrambling System (CSS) used to encrypt DVDs. In Hollywood’s view, that is tantamount to piracy, and shortly after Johansen posted the program he helped create, called DeCSS, on the Internet, the long arm of the DVD CCA swooped in.
The ensuing three-year legal battle between Johansen and the American entertainment industry ended in January with a surprising triumph for Internet free speech—at least in Norway. Citing “no evidence” that Johansen had used the code to illegally copy movies, Norwegian Judge Irene Sogn acquitted the teen-ager of all wrongdoing, and also affirmed Norwegians’ right to access all content of legitimately purchased media, whether encrypted or not.
But Norway is not the United States, and it does not have a Digital Millennium Copyright Act. In a similar case that might spell out the difference between free speech in America and free speech elsewhere, the DVD CCA has filed suit in California against a group of programmers who, like Johansen, were trying to develop a Linux DVD player. Though that case is still pending, the DVD CCA is thought to be on firmer legal ground than in Norway, if only because of the vague powers granted it by the DMCA.
“Had Johansen been tried in the United States, the outcome would almost certainly have been different,” commented the New York-based “hacker quarterly” 2600. The editors of that publication ought to know. After the DVD CCA sued them for publishing Johansen’s code, U.S. District Judge Lewis A. Kaplan enjoined the magazine from publishing or even linking to DeCSS. Citing the DMCA, Kaplan reasoned that DeCSS is not “speech” but a mere program, and therefore not subject to First Amendment protection.
Those are fighting words to some programmers, who can pour a lot of heart and soul into their “speech” to machines—especially if that speech goes without pay, as most open-source developers’ labor does. David S. Touretzky, a computer scientist at Carnegie Mellon University, has set up an online gallery collecting examples of the body of “DeCSS art” that has sprouted in the wake of Judge Kaplan’s declaration. Examples range from T-shirts and ties bearing the DeCSS code, to MP3s of complete songs whose performers sing the code as lyrics. One anonymous contributor wrote a lengthy series of haiku that, Touretzky observes, is “both a commentary on the DeCSS situation and a correct and complete description of the descrambling algorithm”:
Reader, see how yet technical communicants deserve free speech rights;
see how numbers, rules, patterns, languages you don’t yourself speak yet,
still should in law be protected from suppression, called valuable speech!————–
Surely, however, one must concede that movie studios have a right to protect their work from being pirated. Isn’t the MPAA justified in being nervous about the spread of DeCSS? It would be, except there’s one problem: CSS doesn’t actually do anything to stand in the way of illegal copying. Matt Pavlovich, a Dallas-based programmer who was recently exempted from jurisdiction in the DVD CCA’s lawsuit in California, explained to In These Times that “encryption as a science has never claimed to prevent copying. Encryption is designed to protect communication between two parties in such a way that anyone in between would not be able to interpret the conversation—any ‘middle-man’ could always make dozens of copies of the encrypted content.”
In other words, if CSS encryption’s purpose is to prevent wholesale copying, then it is pointless—because every DVD player will decrypt the discs anyway upon playback. Industry-backed DVD producers themselves “never deal with encryption to make copies,” Pavlovich adds, “so how can it be considered copy protection?”
So what is the purpose of CSS, then? Apart from preventing unlicensed competition from Norwegian teen-agers, encryption allows the DVD CCA to enforce an unpopular but lucrative region-coding scheme, which chops up the world into different marketing zones that can be manipulated and exploited for maximum profits. Imagine purchasing a book whose covers locked shut upon passing from one country to another, or a CD that suddenly stopped playing in the airport at customs.
That’s how DVDs work: If you legally purchase a disc while on vacation in Japan (Region 2), you will not be able to play it when you get back to the States (where all players sold are locked to Region 1). If you pick up some movies while visiting family in Mexico (Region 4), you are again out of luck: A Region 1 player will refuse to decrypt anything other than a Region 1 or (increasingly rare) region-free disc. DeCSS helps restore consumers’ right to access discs they’ve purchased regardless of the target market they live in—and that’s why the MPAA hates it.
Aside from offending basic human principles that art should know no borders, it seems hard to believe that the region scheme could even be legal in an era of supposed free trade and globalized culture. (In light of NAFTA, for example, how does the DVD CCA get away with excluding Mexico from the rest of North America?) Of course, free trade was never about bringing people together or removing “barriers” between nations. If anything, we can thank the DVD cartel for so plainly demonstrating that the rhetoric of globalization is just that.
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