Linux and DeCSS: What the MPAA is Really After

If you look at the MPAA-backed Digital Millennium Copyright Act (DMCA), it's clear: they want total control over the uses made of lawfully obtained material.

"If we have to file a thousand lawsuits a day,we'll do it. It's less expensive thanlosing control of your creative works."--Jack Valenti, President and CEO,Motion Picture Association of America (emphasis mine)

Next time you think about going to see a feature film, remember this: attorneys from the MPAA and its ally, the DVD Copy Control Authority, are beating up on hackers and ISPs the world over. Their complaint? Those targeted have posted or linked to DeCSS, a Linux utility that enables Linux users to play back legally purchased DVD video discs on their systems.

If you think these lawsuits are bogus, you'd better think twice. The same organization's lobbyists played a pivotal role in several key U.S. legislative acts that transformed copyright infringement into a crime with penalties akin to second-degree murder. What's more, they could very well win the lawsuits they've filed; after all, the MPAA's lobbyists were given virtually free rein to write the very laws they're citing in these lawsuits, including the DMCA. And the MPAA has already won the opening skirmishes. Hackers can only hope that, somewhere along the way, judges will come to their senses and perceive the truth: namely, that the MPAA-backed legislation pushes the rights of copyright holders to an unconstitutional extreme. In what follows, I'll trace this outrage back to its roots--the U.S. Digital Millennium Copyright Act (DMCA)--and show you just what's at stake.

First, a bit of background. The product of a reverse-engineering effort, DeCSS was posted last fall by Jon Johansen, a Norwegian teenager. (The fact that the Norwegian police hassled and charged Johansen and his father shows that this whole mess goes far beyond the U.S. borders.) In brief, CSS--short for Content Scrambling System--is a weak encryption scheme that locks up the data in DVD video discs--unless, that is, you're using MPAA-approved commercial software, which isn't available for Linux systems. Note that CSS doesn't prevent anyone from copying DVD videos; you can copy DVD video discs all you want. Whether the disc has been copied or not doesn't matter; you can't play the disc without a CSS-enabled player. In short, CSS is not a means of copy protection. It's a means of access control. CSS is designed to extract licensing fees from companies that create DVD players and DVD software. What's more, it's designed to protect the motion picture industry's profitable markets in Europe and Australia. Among other things, CSS won't let you play a lawfully obtained DVD video if the film hasn't yet opened in theaters in your region. Try to defeat this, and you go to jail--never mind that you're in possession of a legally obtained copy of the material.

So what does the DMCA have to do with all this? Just ask Lewis A. Kaplan, a judge in the U.S. District Court's Southern District. Citing the "law of record" (including the DMCA), Kaplan issued a preliminary injunction on January 21 ordering the Web site and its ISP to refrain from posting or in any other way "trafficking" in DeCSS, even in cases where DeCSS or similar software has "only [a] limited commercially significant purpose" other than to circumvent CSS.

And what does all this mean? It's simple, as I'll explain in the following. It shows precisely why certain provisions of the Digital Millennium Copyright Act are grossly unconstitutional. The DMCA amounts to one of the most outrageous examples I've ever seen of what happens when you let wealthy corporate campaign contributors and lobbyists dictate laws to the people of the United States. If you've been wondering whether the U.S. political system is fundamentally corrupt, you won't have any illusions by the time you've finished reading this article.

A DMCA Primer

Enacted in 1998, the DMCA prohibits the circumvention of technological protection measures that copyright holders use to control access to their works. It was ostensibly enacted to bring U.S. law into conformity with the World Intellectual Property Organization (WIPO) treaty, which calls for "adequate protections" against the circumvention of measures used by copyright holders to protect their work from infringement. However, the DMCA goes far beyond the protections WIPO requires. WIPO calls for legislation that criminalizes attempts to circumvent copy-protection measures. But the DMCA criminalizes much more than that. It criminalizes any attempt to defeat any measure that controls access to a copyrighted work, even if such measures have nothing to do with copy protection.

Note that no infringement or piracy need take place in order for a civil or criminal procedure to take place under the DMCA's provisions; it is sufficient that the accused merely have manufactured, imported, offered to the public, provided, or otherwise trafficked in anything whatsoever ("a technology, product, service, device, component, or part thereof") that defeats or attempts to defeat a copyright holder's access-protection measures, even if such a thing has "only [a] limited commercially significant purpose or use other than to circumvent."

Why would the MPAA have pushed for such broad language in the anti-circumvention portions of the DMCA? In terms that seem especially chilling in the aftermath of the DeCSS lawsuits, Samuelson sums up the objectives of the MPAA and its allies:

"These groups seem to believe they are so important to America that they should be allowed to control every facet of what Americans do with digital information. They also seem to think they are entitled to control the design and manufacture of all information technologies that can process digital information" (Pamela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised", Berkeley Technology Law Review, Spring 1999).

U.S. Congressman Thomas P. Bliley of Virginia, an informed observer of the evolving digital economy, clearly recognized the peril of overly broad anti-circumvention measures. Testifying before the DMCA's enactment, Bliley noted that overly broad anti-circumvention measures "could well prove to be the legal foundation of a society in which information becomes available only on a 'pay-per-use' basis."

And that, my friends, is exactly what the MPAA and its buddies are shooting for.