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Column: The Truth About DeCSS
Dana J. Parker
EMedia, February 2000
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© Online Inc.
Last November, the big news in the
DVD industry was the defeat of DVD's Content
Scrambling System (CSS). A simple 60KB program called
DeCSS, offered by a Norwegian group called MoRE
(Masters of Reverse Engineering) allows the contents
of DVD movies (minus menus and interactive features)
encrypted with CSS to be stored and played back from a
hard drive. This development gave rise to
sensationalist articles proclaiming "the worst
fear of movie studios has been realized" (Wired).
The DVD Forum issued a statement denouncing the
program as "illegal and inappropriate." In
describing the situation to Congress, Motion Picture
Association of America president Jack Valenti
announced, "The ramparts are being
breached."
The MPAA's lawyers lost no time in
issuing legal threats to owners of Internet sites
offering DeCSS for download, citing "offers to
sell unauthorized DVD copies of our clients'
copyrighted motion pictures." Matsushita,
Toshiba, and JVC announced a six-month delay in the
release of forthcoming DVD-Audio players and DVD-Audio-capable
DVD-Video players, which were to use CSS2 for copy
protection.
My, what a stink, and all over a
small program that isn't necessarily illegal, wasn't
created illegally or for an illegal purpose, doesn't
in and of itself allow "piracy" of
copyrighted works, and actually restores the
possibility of fair use of DVD content as specifically
provided in the copyright laws of the U. S. and many
other countries.
Let's start with the legality of
DeCSS. The Digital Millennium Copyright Act, which
became law in October 1998, makes it illegal to
"manufacture, import, offer to the public,
provide, or otherwise traffic in any technology,
product, service, device, component, or part
thereof" that is primarily designed to circumvent
copy protection technology.
Although the DMCA is now
law--pending certain provisions due to take effect in
2000--its constitutionality has yet to be considered
by the Supreme Court in light of previous decisions
regarding video recording devices. In 1984, the "Betamax
decision" concerning the legality of VCRs was
rendered as follows: "The sale of copying
equipment, like the sale of other articles of
commerce, does not constitute contributory
infringement if the product is widely used for
legitimate, unobjectionable purposes, or, indeed, is
merely capable of substantial noninfringing
uses."
Despite what the RIAA and the MPAA
would like us all to believe--that all copying of
copyrighted work is illegal--it just isn't so.
Copyright is not absolute. It's meant to strike a
balance between fairly compensating the owners of
intellectual property and the public's access to their
work for the sake of "the free flow of ideas,
information, and commerce." In fact, the majority
opinion in the Betamax case states: "The
copyright law...makes reward to the owner a secondary
consideration."
Consumers do have the right to
record copies for personal, non-commercial use.
Educators, scholars, and journalists can also copy and
excerpt for review, research, and instructional use.
Section 107 of the Copyright act of 1982 provides:
"Notwithstanding the provisions of section 106,
the fair use of a copyrighted work, including such use
by reproduction in copies or phono records or by any
other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research, is not an infringement of
copyright."
Then there's the question of whether
the intention of DeCSS is to promote piracy. Again,
despite mass media hyperbole, there is a big
difference between commercial piracy and "casual
copying." Pirates, by definition, directly
compete with authorized program distributors without
obtaining the legal right to do so. They make copies
in large batches, using professional equipment
comparable to that used by the authorized distributor,
and they sell them for profit.
Casual copying, however, is not
strictly illegal--under the doctrine of fair use, each
case must be considered individually, and must meet
certain criteria regarding the the purpose and
character of the use. According to the Copy Protection
Technical Working Group, an ad hoc group representing
the computer, film, and music industries, CSS was
never intended to prevent piracy, but to prevent
casual copying. DeCSS defeats CSS, which prevents
casual copying; therefore, using it does not
automatically constitute piracy.
All of this legal explication aside,
the issue here is not DeCSS--it is the attempt, by
content owners represented by the RIAA and MPAA, to
create a technological solution for a legal problem.
Copyright laws exist and have teeth, but the music and
film industries have decided that it would be easier
for them to make technology illegal than to use
existing laws to protect their content. This makes no
sense--the same law that makes reverse engineering
illegal would make possession of a debugger illegal.
Unless the law is planet-wide, someone, somewhere,
will be able to reverse-engineer any copy protection
algorithm legally and share it with others.
It's time for the music and film
industries to abandon their fruitless, costly, and
consumer-alienating attempts to rewrite the copyright
laws to their own purposes. It's a dead-end, and it's
only postponing the inevitable. Make your content
widely available, globally compatible, and reasonably
priced, and you can eliminate the need and desire to
make unauthorized copies. It's the only sensible thing
to do.
Dana J. Parker (danapark@ix.netcom.com)
is a Denver, Colorado-based independent consultant and
writer and regular columnist for STANDARD DEVIATIONS.
She is also a contributing editor for EMedia,
co-author of CD-ROM Professional's CD-Recordable
Handbook (Pemberton Press, 1996), and chair of Online
Inc.'s DVD PRO Conference & Exhibition.
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