Can the Law Keep DeCSS Down?

Almost a week ago I tackled the controversy concerning DeCSS and the motion picture industry.

I wrote that this was a classic battle between the law and the Net, but along the way I made some technical errors. Some 48 separate people were kind enough to point those errors out through email, and many responded repeatedly until they felt I had it right.

Here are the points they made. DeCSS is not a program to copy DVDs; rather, it’s a Linux player for DVDs. The programmer, a Norwegian teenager who was arrested along with his father after the code was released, used common “reverse engineering” rules that usually hold up in court. The injunctions issued so far aren’t final decisions, but preliminary rulings before a trial on the merits.

My main point – that this represents a collision between a law that binds our actions and software that seeks freedom – remains intact. And the notes, while they came at the expense of accuracy in my recent column, also say something important in pushing this story forward.

Consider that 48 people wrote me separately, with deep respect and knowledge. This was not “astroturf,” where an interest group creates fake “grassroots” support through post cards or form letters. My extensive dialogs with the writers attest to that. Consider that my article didn’t appear in a mass circulation daily or a Linux journal, but here on ClickZ, an online business publication. I can only imagine what The New York Times got.

The words of Tim Dion, who sent me email from a address, should also give Motion Picture Association of America head Jack Valenti a few sleepless nights. Regarding how the free software community might react to a permanent injunction, he wrote, “We most likely will use the ‘Whack a Mole’ approach. Currently, there are thousands of mirrors to the DeCSS code,” and publicity merely increases that number. Thousands of minor tweaks could quickly be created, and each would require separate legal action to put down, he wrote.

All this may be true, Tim, but the fact is the law has changed, and in this case the law is moving at near-Internet speeds. A single decision might indeed be written against both tweaked code and reverse engineering. Possession of the code could be deemed proof of contempt for that order.

But there’s another issue. Copyright holders argue that they must have the right to control all technology that threatens their copyrights, or else they don’t have real protection in the Internet age. You’re given a song or movie in a locked box, the locked box is integral to the transaction, and if anyone can easily pick that lock the lock might as well not exist. If software is a contract anyone can easily violate, the contract might as well not exist.

Finally there is this issue. According to the plaintiffs, DVD is by definition a licensed technology, requiring payments of fees. Free source code violates those licenses because users aren’t paying the fees. You can’t just reverse engineer Windows, throw it on a server, and let everyone run Word free.

This story will continue to grow and evolve. Frankly, it’s a lot more important than who wins today’s New Hampshire primary. After all, presidents change but the Internet and its laws, once defined, may be forever.

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