Until now, most questions concerning the law's ability to police the Internet have been theoretical, or have concerned questions like child pornography where everyone's on one side.
Today, finally, we have a case where the power of law is lined up all on one side, while the power of the Net is lined up on the other. The assumption of people like Lawrence Lessig is that "East Coast code," in the form of law, will lose these battles. But it could be he's wrong.
At issue is DeCSS. DeCSS, if you haven't heard of it, is a computer program that lets you unscramble the encryption on a DVD disk and copy its contents.
The movie industry is scared to death of DeCSS. A DVD is a digital medium that can hold an entire movie, and "early adopters" are abandoning videotape in droves because it provides a better experience. But the problems of videotape piracy multiply a thousand-fold with DVD, because if its contents can be unscrambled, the resulting copies are perfect.
Now, wouldn't you like to copy DVDs as you copy videotapes? Of course you would. So would anyone with a player. Heck, if you have broadband it might be fun to download, say, "The Matrix," and play it on your PC without paying.
Thus, a classic battle is joined, the power of the law vs. the power of the Net, the need of "information to be free" against the need to protect copyright.
So far we've learned that when the law is motivated, and the law is clear, the law can move very quickly indeed. The Digital Millennium Copyright Act is very clear, and the plaintiffs in this case are highly motivated. So it should be no surprise that the Motion Picture Association of America won a complete victory in the U.S. District Court in New York against DeCSS.
While the "hacker" site 2600 is complaining loudly, it has removed an article about cracking the DVD encryption from its server. The day after New York ruled, a preliminary injunction was issued against the DeCSS code in Santa Clara, targeting 500 sites around the world and ordering they remove the DeCSS source code.
Letters demanding that even links to the program be removed are now being sent. The author of the program, a Norwegian programmer named Jon Lech Johansen, says he has been arrested and his computers have been seized. "What happens next is everyone else in the universe mirrors DeCSS," wrote Declan McCullough of The Well to a shared list run by FCC advisor David Farber.
Maybe, but maybe not. Most people prefer to be law-abiding, and authorities are united (and aggressive) in fighting this code. Beyond that, most people probably don't care to copy DVDs (right now). A single copy's enough, the digital capacity of a DVD is much larger than that of most hard drives, and the bandwidth costs of moving a movie are just prohibitive for most people.
A CD, however... That's another matter. Success on the DVD front is encouraging to the music industry, and might be behind Time Warner's acquisition of EMI Music. Can the precedent of the MPAA's success be used to try and squeeze the MP3.com genie back in the bottle? The industry will certainly try - stay tuned.
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Dana Blankenhorn has been a business reporter for more than 20 years. He has written parts of five books and currently contributes to Advertising Age, Business Marketing, NetMarketing, the Chicago Tribune, Boardwatch, CLEC Magazine, and other publications. His own newsletter, A-Clue.Com, is published weekly.
March 19, 2014