NOVEMBER
2001
A California appeals
court dealt a major blow to the movie industry's effort
to thwart DVD piracy, ruling that distributing a
disc-copying program on the Internet is not
illegal.
The three-judge panel
found that because computer programs constitute a form of
speech, they are protected by the 1st Amendment. The
decision strikes down a preliminary injunction issued by
a lower court.
"Although the social
value of DeCSS may be questionable, it is nonetheless
pure speech," the panel wrote of the disc-copying
program. The DVD Copy Control Assn. Inc., the movie
industry group that brought the suit, said it will appeal
the decision. The injunction will remain in effect until
the case is heard by the California Supreme Court.
"If this decision is
upheld, it would be a disaster, not just for DVDs or the
film industry but to the entire U.S. technology
industry," said Jeffrey L. Kessler, one of the lawyers
representing the association.
Attorneys for both
sides stressed that the 6th District appeals court's
decision, handed down Thursday evening, does not legalize
pirating DVDs. But it does allow Internet users to
distribute the program to others.
"All this says is you
can't stop people from sharing publicly available
information," said David Greene, a member of the legal
team that opposed the movie industry's suit. "The movie
industry can still take legal action against people who
use DeCSS. They can prosecute those violations under
copyright law."
The decision is a
milestone in the murky debate about publishers' control
over digitized books, music and movies.
Although previous
court rulings also have held that computer code is a
protected form of speech, Thursday's decision is one of
the first that has gone against the movie industry, which
in the last three years has won judicial support for its
campaign to impose ever-stricter conditions on how
consumers use digital material.
The case revolves
around the complex system of technological locks built by
the movie industry to prevent consumer copying of DVDs.
Studios largely
tolerated consumers who copied videotapes because each
copy was less perfect than the previous copy and
consumers couldn't mass-produce pirated tapes.
Information on DVDs,
however, can be perfectly copied over and over. To
prevent copying, the movie industry developed a system
called CSS, which encrypted the information on a disc.
At least that was the
plan. In 1999, a program called DeCSS, allegedly
developed by a Norwegian computer programmer, appeared on
the Internet. The program could break the encryption on
DVDs.
Many Internet users,
including the defendant, Andrew Bunner, found copies of
the DeCSS program on the Internet and posted them on
their Web sites.
The DVD Copy Control
Assn. sued Bunner and dozens of others who had done the
same thing.
The association argued
that distributing the DeCSS program was illegal under
California's Uniform Trade Secrets Act, claiming that
DeCSS was based on the industry's secret encryption
method. The association won a preliminary injunction in
January 2000 barring distribution of DeCSS.
Bunner appealed the
injunction, claiming that the 1st Amendment protected his
right to distribute the software. He did not claim any
right to use it to copy DVD movies, which would be a
crime.
The appeals court
agreed. "The California Legislature is free to enact laws
to protect trade secrets, but these provisions must bow
to the protections offered by the 1st Amendment," the
court ruled.
Kessler scoffed at the
court's reasoning. "Basically, the court held
California's trade secrets law unconstitutional," he
said.
Opponents of the movie
industry's efforts to restrict the distribution of DeCSS
expressed relief about the outcome, though most were
aware that the legal battle probably will drag on for
years.
David S. Touretzy,
principal scientist in the computer science department at
Carnegie Mellon University, said the movie industry has
tried to make it seem as if digital material is different
from everything else, such as a book, a speech or
Grandmother's recipes, which are fully protected by the
Constitution.
"If this were not
overturned, it would be saying that there are categories
of speech that aren't fully protected," he said. "This
idea that you can distinguish between what's computer
code and what's not is incomprehensible to a computer
scientist. There isn't any rational way to draw a
line."
Pirate
DVD Operation Reported By MPAA. "The Thai plant was
producing bootleg copies probably bound for
English-speaking countries", Says LA TIMES
Police in Thailand for
the first time have uncovered an underground factory that
produced illegal DVDs, increasing movie industry fears
about the rapid rise of DVD piracy.
The Motion Picture
Assn. of America said Wednesday that its anti-piracy unit
in Thailand accompanied the Royal Thai police on a raid
this week of the factory about 15 miles from Bangkok.
Five people were arrested, the MPAA said.
At the factory, police
found two production lines and an underground rail tunnel
used by the pirates to secretly cart the illegal discs to
a second building, where they were packaged for shipping.
The pirates had been stamping out copies of "Bridget
Jones's Diary," "The Mummy Returns" and "Final Fantasy."
"This is the first
time we have seized an optical disc line that has been
manufacturing DVDs illegally in Thailand," said Ken
Jacobsen, director of the MPAA's Worldwide Anti-Piracy
Office. He said many of the bootlegged movies seized this
week were probably destined for the U.S., Britain, South
Africa and other English-speaking countries. Movie piracy
costs Hollywood an estimated $3 billion a year. In 1999,
the MPAA assisted in the confiscation of 600,000 illegal
DVDs in Asia. Last year, the number swelled to 1.9
million, and more than 2 million DVDs had been seized
through August of this year, Jacobsen said.
In recent years,
anti-piracy sleuths in Asia seized mostly illegally
produced movies on video compact discs, an inferior
format popular in Asia. Studios released legal copies of
movies on the VCD format in Asia but not in the U.S. and
Europe, Jacobsen said. "We are beginning to see a shift
from VCD to DVD pirates," Jacobsen said. "We're seeing
the copies come back into the U.S., and into Europe,
South Africa and the Middle East. That's our newest
concern, and a very substantial concern."
The Thai factory had
two production lines, one for VCDs and the second for
DVDs. Thai police confiscated 3,000 VCDs, including
copies of "Dr. Dolittle 2" and "The Mummy Returns;" 7,000
DVDs, including "Star Wars: Episode I The Phantom
Menace"; more than 1,000 music CDs, 1,000 software CDs
and about 3,000 pirated movies released by small and
independents studios.
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