Can
hyperlinks be outlawed?
Movie studios aim to criminalize
links to DeCSS, a banned DVD-decryption program.
By Damien Cave
salon.com © | April 6, 2000
April 6, 2000
| In a fresh attack on DeCSS, a program
that decrypts DVDs so people can play them on
Linux-based operating systems, the Motion Picture
Association of America filed a motion on Wednesday to
prohibit 2600,
the "hacker quarterly," from linking to
other sites that post copies of the outlawed program.
Specifically, says Mark Litvack, the MPAA's vice
president and director of legal affairs for worldwide
anti-piracy, the organization representing movie
studios wants Eric Corley -- aka Emmanuel Goldstein,
publisher of 2600 -- to quit "trafficking"
in the distribution of DeCSS.
In January, a federal judge
prohibited 2600 and two other sites from posting DeCSS.
(The judge had ruled that DeCSS was a violation of the
1998 Digital Millennium Copyright Act, which considers
anything that subverts "access control
mechanisms" to digital content to be illegal --
regardless of whether the modifications to the
mechanism are used to access the content or to copy
it.) Now the MPAA is trying to keep 2600 from even
linking to other sites that have posted the program.
But wait. Can hyperlinks be
outlawed? Only last week, a California judge ruled,
in a case brought by Ticketmaster against Tickets.com,
that it's not illegal for one site to link to another.
Among other things, that suit concerned "deep
linking." Ticketmaster alleged that by
bypassing its home page and linking directly to
"inside" pages, Tickets.com violated its
copyright. The judge, however, held that
"hyperlinking does not in itself involve a
violation of the Copyright Act."
The MPAA motion is focused on a
different aspect of linking -- whether it's legal to
link to information that a judge has ruled is illegal
to post -- but the Ticketmaster vs. Tickets.com case
may still lend some legal precedent. Daniel Harris,
the attorney who argued for Tickets.com's practice of
linking to pages deep within Ticketmaster's site, says
the case should indeed be considered a precedent in
New York's federal district court, where the DeCSS
case sits.
"The Internet's exponential
growth is due in part and parcel to the access to
linked information," says Harris, a partner at
the Palo Alto, Calif., firm Brobeck, Phleger &
Harrison. "Once you start applying the ability to
police where links go, then it's going to have major
negative ramifications on how the Internet will grow
in the future."
Of course, the MPAA says its only
concern is with the DeCSS case, not linking policies
in general. "There is certain hyperlinking that
is clearly legal and others that aren't," says
Litvack, adding that links to DeCSS are like links to
child pornography, which "no one would want to
proliferate, even if it's linked and not simply
posted."
But whether you believe decryption
technologies are as bad as kiddie porn or not, chances
are you'll be able to get DeCSS without too much
trouble. Since it was first made available by European
hackers last year, DeCSS code has been posted and
linked to from hundreds of Web sites. The MPAA's
motion on Wednesday cites 300 links, and Litvack says
there are probably even more. Meanwhile, in the
non-virtual world, some activists have even taken
to the streets, posting the code on posters and
T-shirts. And adding further insult to injury, one
free-software fan even created a decoy
to fool investigators, like those at the MPAA, who are
scouring the Web for sites posting the code.
The MPAA's Litvack remains positive:
"This is a country of laws," he says,
"and you have to hope people will obey
them." But there aren't many laws that govern the
Internet, and until the MPAA's motion and others make
it through court, it's not clear where the law stands
on linking. Meanwhile, legal decisions are having
scant effect on the spread of DeCSS. "The MPAA is
really running uphill and constantly being blown
backwards," says Harris. "The genie's out of
the bottle, and they're trying to stuff him back
in."
About the writer
Damien Cave is a Salon contributing writer.
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By Damien Cave 02/22/00
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