The growing desire of consumers to be entertained has brought about some changes in the movie industry in the last few years with the introduction of digital video mediums. At present, consumers are beginning to replace their old VCRs in favor of DVD players and the enhanced digital quality of the video and audio. However, most consumers are probably not aware that there is an ongoing legal battle concerning their much-adored video technology. Even fewer, due to poor reporting which fails to investigate claims, are individuals who understand the premise of these legal actions.

    In order to fully understand the background and effects of this legal situation, it is necessary to understand exactly what a DVD is and briefly how it works. A DVD, or digital video disc, can hold 4.7 gigabytes of data - nearly seven times more than a standard CD-ROM disc. Such a high storage capacity makes it ideal for archiving large databases of information such as encyclopedias, telephone books, and volumes of public records. It also functions equally well in delivering superb quality full-motion video and audio in excess of two hours per disc (Harris, 140). And that is the primary aspect of the DVD technology with which this situation is associated. DVD movies may be played in consumer level DVD units somewhat similar to video cassette players or in DVD drives designed for personal computers.

    DVDs became quite popular in the consumer market for the majority of general computer users who used Microsoft Windows or MacOS for their operating system. However, individuals who used alternative operating systems (such as Unix, Linux, BeOS, FreeBSD, etc.) found that they had no way to play the DVDs they had just purchased! There were not any programs designed to allow alternative operating systems to play DVDs, and those producing the DVDs did not see these computer users as a large enough market to be concerned with. Some individuals in this minority consumer market, filled mostly with computer professionals, sought to correct the problem by writing their own DVD software. The major issue they faced when trying to write the software was that it would be necessary to break the encryption used on DVDs in order to play them.

    By October 1999, a group of computer programmers from Norway claimed that they had defeated the encryption scheme used on DVDs and released the source code to a program named DeCSS. The encryption had been broken by someone using reverse engineering, while the source code was written by another person. The Motion Picture Association of America (MPAA) was outraged at this and tracked down the actual programmer involved, Jon Johansen. They claimed they were trying to protect DVD piracy. On January 25, 2000, this 16-year-old boy and his father, whose name was used for registering his son's website, were arrested in Norway because of the MPAA's claims that he broke intellectual property laws (Kroll).

    International copyright law became a key point in this circumstance when the MPAA crossed international borders. Many nations have entered into a pact, agreeing to the standards proposed by the Berne Convention for the Protection of Literary and Artistic Works, most recently revised in 1971. This agreement requires nations to give the same protection to foreign works as they give to their own domestic copyrighted materials. It is now the duty of the World Intellectual Property Organization (WIPO) to administer to the conditions set forth in the Berne Convention (Anderson, 11).

    Copyright owners have the ability to enforce their copyrighted material if they so choose by seeking out the companies or facilities involved in making the unlawful copies and selling them. Large publishers of pirated material may be easy to spot, but it is very difficult for the copyright owner to go after single individuals who are in violation of this law. A medium which becomes easy to reproduce will have widespread violators, and only partial, selective enforcement will be possible (Uzgalis).

    The MPAA's reported argument for their actions against Johansen and his DeCSS computer program was that they were trying to stop piracy. But what exactly is piracy, in legal terms? The unauthorized use or duplication of materials which are protected under copyright law is an acceptable legal way to clarify piracy (Harris, 160). However, there is a basic right of consumers to make authorized copies of copyrighted materials that was established by the Berne Convention. It is delegated as fair use and allows certain privileges to individuals who purchased something protected by copyright. As long as being used strictly for private purposes, backups copies of movies and music is allowed (Journalists). This is clearly valuable to the consumer if the original copy they purchased has been destroyed! Therefore, if DeCSS does indeed allow one to make copies (authorized or unauthorized) of DVDs, as the MPAA has proposed, should or should it not be outlawed if it could be used by lawful DVD owners to make backup copies of their discs?

    There is also additional, fairly recent copyright law which helps determine the validity for having computer programs such as DeCSS. Passed on October 12, 1998 by the U.S. Congress, the Digital Millennium Copyright Act (DMCA) explains the limitations and rights consumers have when dealing with digital or electronic mediums of copyright. Although it is a relatively complex work, it made major changes to U.S. copyright law by providing clarification and details in these areas. Explicitly described in Section 1201(f), those developing software are permitted to circumvent protection measures in various forms of technology, provided that the copyrighted material they are reverse engineering was lawfully obtained. It also allows the individual to distribute information necessary to overcome the protective measures (Band). And so in theory this not only allows software developers to purchase a DVD movie and attempt to "crack" its encryption (or any other protective measures it has) in order to achieve interoperability with an operating system, but also permits them to disseminate to others the methods used.

    Evidence exists to show that the encryption on DVDs is not related to copy protection as much as it is to access control. To begin with, the data contained on DVD movie discs is merely encrypted MPEG files. These are standard video files which, if unencrypted, can be played on any modern operating system, mainstream or alternative. Encryption does not prevent the copying of the files; they may easily be copied from one disc to another, regardless of encryption, because the end result will be a duplicate of the original disc, complete with encrypted files. DeCSS has nothing to do with any copying aspects at all. It is involved in decrypting the discs while they are being accessed to allow playback on operating system of your choice (Moen). On standalone DVD video players only capable of playing movies, the decryption process is done automatically in the background by the firmware (embedded chips) of the unit.

    In addition to DVD movies being encrypted, included in the design of the DVD is the ability of producer's and manufacturers to isolate in which geographical location a disc can or cannot be used. By breaking the world into six different marketing areas and assigning a code to each, they can produce DVD players which correspond to a particular region (Uzgalis). A person can usually expect to be able to order books, CDs, or magazines from another country, have them shipped to their domestic location, and expect the items to be useable there. But with DVD videos this has not been possible due to the use of region codes on the discs. In several countries, region coded DVDs have been outlawed since they represent trade barriers placed by the DVD trade associations, and many believe them to be contrary to World Trade Organization treaties. One of the nations outlawing the region coded DVDs, New Zealand, has also outlawed the sale of zoned DVD players. That is, those players which play DVDs from one region only. And in order for a DVD player to be legal in that nation it must specially modified to play discs from all regions (Regional).

    If the encryption scheme on DVD videos cannot be left intact, DVD producers will not be able to insert the region codes and keep them protected. It is the encryption which enables them to put the regional coding on the disc in the first place, determining in which part of the world the disc may be used. If the encryption is compromised, as DeCSS demonstrated it was capable of doing, the DVD trade groups would no longer be able to control in which player the discs will function (Kroll). So, someone in North America would be able to import cheaper but yet legal DVDs from a foreign nation where they are less expensive. Or a person in Europe would be able to watch a movie just as soon as it was released on DVD in the U.S., rather than being forced to wait many months and pay higher prices to purchase it in their own country.

    Up to this point, with the brief history of this legal situation given, it might be easy to foresee the possible legal solutions. However, there have been even more actions which have taken course after the arrest of Johansen, his father, and the forced removal of DeCSS from his website. The DVD Copy Control Association declared 2600 Magazine and several other individuals as defendants in a California-based lawsuit (MPAA). 2600 Magazine is a monthly publication geared towards computer "hackers" (a term given which now has a wide range of definitions, due mostly to improper use), programmers, technological enthusiasts, and solely curious individuals. The lawsuit initiated by the DVD Copy Control Association has been an effort to force 2600 Magazine and the other individuals being referred to as defendants to remove the source code of DeCSS from their website and remove any website they operate archiving the source code.

    Shortly after being aware of that impending lawsuit originating in California, 2600 Magazine's editor, Eric Corley (a.k.a. Emmanuel Goldstein), was exposed to the possibility of an injunction against him. The MPAA had filed for an injunction that would require Corley to remove the DeCSS source code from his magazine's website. By January 2000 a judge had granted the injunction. Reluctantly, the source code was removed from the website because Corley believed it was necessary to comply with the law, and that was the only action he saw for the circumstance when it had reached that point (MPAA).

    On April 5, 2000, the MPAA filed a second additional injunction against 2600 Magazine. It appears that not only do they wish for DeCSS to be removed from the magazine's website but also links to other websites which have it. Even though 2600 Magazine fulfilled the first injunction by removing the source code to the program, they continued to maintain a comprehensive list of links pointing to websites with DeCSS (Linking). The injunction has not yet been granted, but the judge will have 21 days from the time of its filing to decide.

    To perceive the broad scope which this current legal predicament concerns, consider that it involves international copyright and intellectual property law, fair use and reverse engineering, the possibility of trade restraint, and now even perhaps free speech issues. Furthermore, the members of the MPAA include: Universal City Studios, Paramount Pictures, Metro-Goldwyn Studios, Columbia Pictures, Tristar Pictures, Time Warner Entertainment, Disney Enterprises, and Twentieth Century Fox (Father). The MPAA is a compilation of some of the largest U.S. and foreign corporations related to the entertainment industry. They are corporations that already have a tremendous amount of resources at their individual disposal without even forming a bond with others.

    Examining a legal situation involving relatively new technology such as DVD is difficult when cases regarding the same technology have not been tried in the past. A judge must apply any relevant case law and interpret set laws and statutes to the best of his or her ability. Fortunately, there are at least a few instances of case law which are not directly similar to the MPAA DVD lawsuits but are still applicable nonetheless. The first case, Sony v. Universal Studios, was a U.S. Supreme Court case. It involved video cassette recorders and their possible use of unauthorized recording and piracy. The decision concluded in 1984 by the Supreme Court found that devices with "substantial non-infringing uses" are legal even if it is possible to use them for the purpose of copyright infringement (Stevens).

    Certainly that decision can be applied to Xerox machines, CD-ROM recorders, DVD recorders, and computer scanners. But a judge who recognizes that precedence could declare that it either does or does not play a role in the issue of DVDs, by examining the issue of whether or not the DeCSS program is considered a device or something else. If computer source code becomes the equivalent of a device under these circumstances, then it would be unlikely that it can be outlawed.

    The primary purpose of the DeCSS program has been indicated that it allows users of alternative operating systems to play DVDs. It removes the limitation that hinders playback on those computers. And when DeCSS was released in October 1999, the DVD trade associations (namely the MPAA) were no longer able to limit DVD videos to the Microsoft Windows and MacOS markets only - at that point they had lost their control over the industry. In addition, they also could not prohibit the playback of legally imported discs because the region coding could be circumvented (Moen). But was the circumvention protected as a consumer right under copyright law?

    To answer this, I refer to the recent case of Sony v. Connectix. Engineers for Connectix were involved in designing a computer program allowing one to play Sony Playstation video games on a personal computer, without the need of the Playstation console component. It was necessary for them to reverse engineer the operations of the Playstation and understand it, level-by-level, moving from the outside-in to gain an intricate knowledge of its functioning. When the Ninth Circuit U.S. Court of Appeals reached a decision on February 10, 2000, they found that Connectix was not guilty of infringement when their Virtual Game Station was released. Instead, their actions constituted as fair use according to copyright law (Canby).

    The most recent effort of the MPAA to remove DeCSS source code from circulation can be interpreted as an issue of free speech, according to Junger v. Daley. This very recent case (April 4th) shows that computer source code by its very nature contains ideas expressing the exchange of information. It is protected as free speech under the First Amendment, as decided by the Sixth Circuit Court of Appeals (Martin).

    Considering these few examples of case law, the outcome of the MPAA and DVD Copy Control Association lawsuits appears to be in favor of the defendants. How the injunction against them was granted in the first place is baffling. Clearly, as can be supported with previous case law, the method of reverse engineering is protected by Digital Millennium Copyright Act and the source code to DeCSS is protected as free speech. It may be distributed widely and freely if desired, as was done when it was posted on webpages and archived on various Internet servers.

    If the judge grants this second, most recent injunction filed by the MPAA, it will set a very precarious precedent. It would entail that website operators can be held responsible for the content on other websites to which they link. With it potentially stifling the free flow of communications and information on the Internet, website owners would have to be constantly cautious for fear liability (Linking). To give a more real life understanding of this, it would theoretically allow someone to place legal responsibility on the publisher of a chemistry textbook when a terrorist has used that book to increase his or her knowledge of bomb-making.

    In recapitulation, there are basic rights a consumer has of fair use, delegated by copyright law such as the Berne Convention and the Digital Millennium Copyright Act. Copyright owners have the authority to seek legal action against individuals or groups involved in making unauthorized copies of their copyrighted material. However, because reverse engineering of copyrighted materials has been determined as fair use, the copyright owners should have no reason to seek action against such individuals. In addition, distributing source code, even that which compromises protection measures of copyrighted items, is protected by the First Amendment.

    Personally, I do not believe this legal dilemma should have carried on as far and as long as it has. But I do realize the MPAA wields a substantial amount of political power, and a huge conglomeration of corporations could easily influence the decision of a judge. I believe that the injunctions against website owners posting the DeCSS source code should be appealed and revoked. In addition, I do not see any clear grounds for lawsuits against the claimed defendants. They were exercising their First Amendment rights by spreading information necessary for all computer users, not just those in the mainstream, to play DVDs. Furthermore, I also believe that the corporations involved in the MPAA should be thoroughly investigated for having participated in what appears to be trade restraining actions, by prohibiting the playback of imported DVDs and forcing consumers to pay a fixed price! While the image of competent, law-abiding computer experts has once again been tainted by poor journalism efforts, that can only be expected to happen due to a lack of technical understanding and a desire to make reporting oriented towards entertainment. With the Electronic Frontier Foundation now stepping in and providing a legal defense for the claimed defendants, this legal quandary will likely be resolved in the near future.

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