Judges Rule in Favor of Industry, Norwegian Programmer Arrested As Decss Crackdown Begins

Jan. 31, 2000 (DVD REPORT, Vol. 5, No. 5 via COMTEX) -- The motion picture and DVD industries have scored victories against the distribution of the CSS crack, with two different judges ordering defendants to remove copies of the DeCSS source code from their Web sites and Norwegian authorities arresting the 16-year-old programmer thought to be responsible for initially publishing the program. While neither court order guarantees that the judges involved will eventually rule in favor of the plaintiffs, they do show that the legal tide has shifted against the online movement for free distribution of DeCSS.

      A district court judge in New York City wasted no time in granting a preliminary injunction against three defendants in a lawsuit filed by eight Hollywood studio members of the Motion Picture Association of America (MPAA). Federal Judge Lewis Kaplan's decision meant that the Web sites named, including hacker journal 2600, finally removed the DeCSS source code from their pages. The judge stopped short, however, of amending his decision to also enjoin the posting of links to other pages containing DeCSS. (Still to come is a preliminary ruling in another, similar MPAA lawsuit naming a single defendant in Connecticut.)

      MPAA: It's 'A Wake-Up Call'

      "I think this serves as a wake-up call to anyone who contemplates stealing intellectual property," said MPAA president Jack Valenti in a prepared statement. Valenti also argued that the ruling meant the Digital Millennium Copyright Act (DMCA) that was passed by Congress in 1998 gives the creative community "a powerful tool" in anti-copy litigation.

      Meanwhile, in a case filed by the DVD Copy Control Association (DVD CCA) against nearly 100 Web site operators (with provisions for many more to be named at a later date), a California superior court judge also granted a preliminary injunction against the distribution of DeCSS on defendant Web sites. Once again, the judge would not issue an injunction against merely linking to other Web sites containing DeCSS.

      In a detailed order granting the injunction, Judge William J. Elfving made it clear he believed the DVD CCA was well-equipped to argue that trade secrets had been misappropriated in the creation and distribution of the DeCSS utility, which allows DVD files to be descrambled without the use of licensed DVD hardware or software.

      Judge: 'Disrespect For The Law'

      Elfving also suggested that, to some extent, the defendants had implicated themselves in wrongdoing. "The circumstantial evidence, available mostly due to the various defendants' inclination to boast about their disrespect for the law, is quite compelling on both the issue of [Norwegian programmer] Mr. [Jon] Johansen's improper means and ... Defendants' knowledge of impropriety," the judge wrote. (For his own part, Johansen says he didn't actually crack CSS, but did write DeCSS, the program that implemented the crack.)

      Elfving's decision came after he had previously denied the DVD CCA's request for a temporary restraining order, a decision that had heartened the pro-DeCSS camp - which includes not just hackers and would-be pirates, but also a sizable contingent of Linux users and programmers who contend that DeCSS represents a legitimate act of reverse-engineering that enables DVD playback on Linux systems, which have not been supported by the DVD industry.

      The California lawsuit alleges misappropriation of trade secrets, while the New York and Connecticut lawsuits claim that defendants violated the Digital Millennium Copyright Act by distributing a program that circumvents DVD's anti-piracy system. On the subject of copyright protection, a popular refrain has been that CSS is an anti-playback measure, not an anti-copy system - while CSS may prevent playback of a scrambled disc, it has never prevented the creation of a bit-for-bit copy of that disc's data.

      And on the subject of trade secrets, some observers wonder if the plaintiff hasn't lost its ability to claim trade secret status now that the workings of CSS have been distributed globally. (One court record reproduced at cryptome.org, a Web site maintained by cryptography watchdog John Young, apparently shows that a document filed on behalf of the plaintiff in the California case includes the DeCSS source code in its entirety; that document was belatedly sealed by the judge at an emergency hearing last week.)

      Johansen: It's A Monopoly

      Meanwhile, Johansen himself was rounded up by Norwegian authorities, who reportedly acted on a complaint from the U.S. motion picture industry. Johansen and his father (who owns the Web domain where the DeCSS program was originally posted) were indicted and questioned and the programmer's computers and cell phone were seized, according to an early-morning Internet posting from Johansen after his release. The 16-year-old programmer has reportedly been charged under Norwegian law with copyright infringement and circumvention of data- security arrangements. "The [industry] is claiming that their encryption was copy protection," Johansen told online news service CNET last week. "The encryption is in fact only playback protection, which gives the movie industry a monopoly on who gets to make DVD players."

      That angle is likely to be visited again and again as DeCSS makes its way through the legal system. Last week, the Electronic Frontier Foundation (EFF), which is representing defendants in both U.S. cases and plans to assist Johansen in Norway, described CSS as a way of enforcing the movie industry's "monopoly" on DVD playback software. "Today's decision is a major wake-up call for the $30 billion Linux community," said EFF cofounder John Gilmore. "If Judge Kaplan's reading of the DCMA holds, then it will become illegal to build open-source products that can interoperate and/or compete with proprietary ones for displaying copyrighted content."

      Making Baby Steps Toward Linux

      Last summer, one enterprising programmer won a nod from Panasonic after creating a driver for that company's DVD-RAM drive. "We received about 8000 emails from Linux users who are very interested in adding DVD-RAM drives to their systems, and that's a conservative estimate," said Panasonic Computer Group general manager Jeff Saake at the time, admitting surprise that a driver had been developed independently of Panasonic (DVD Report, August 16). Even then, some warning flags had gone up in the Linux community over the legality of developing DVD support for Linux, given that many aspects of the DVD spec are subject to non-disclosure agreements.

      Finally, Sigma Designs plans to announce what it's touting as the industry's first system supporting DVD-Video playback under Linux. The company will demonstrate its RealMagic MPEG-2 card with Linux driver support at LinuxWorld, February 2-5 at Jacob Javits Center in New York City.

      Copyright Phillips Publishing, Inc.