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.
MORE
April-May 2001
•
NewsMakers
(TVI Magazine)
