April 28, 2000
By CARL S.
KAPLAN
First Amendment Lawyer Takes on Movie Studios in DVD Case
ight major movie studios are asking a federal
judge to order a
Web publisher to stop linking to hundreds of sites carrying a
piece of software
that they say threatens their industry.
Martin Garbus is determined to stop them.
Garbus, a well-known New York trial lawyer
and First
Amendment specialist, was brought on board recently to assist
the
Electronic Frontier Foundation, a cyber-liberties
group, and
a small group of volunteer lawyers in their efforts to wage an
important
legal battle. In essence, the case tests the ability of movie
studios and
other content providers to use a new federal law to restrict
access to their
digital wares.
Next week Garbus plans to submit legal papers arguing that his
client, Eric
Corley, one of three defendants in the case, has a perfect right
to link
to sites posting a controversial software program called
DeCSS. Corley, under
the name Emmanuel Goldstein, runs a print and Web publication,
"2600: The Hacker Quarterly."
The Motion Picture Association of America, a
movie trade group,
objects to the DeCSS software because it allows users to bypass
the security
system on their DVD movie disks, thus opening the door, they
say, to unauthorized
viewing or piracy. But Garbus said that there is a big
difference between
posting the software and linking to sites that have posted it.
"Linking is like indexing," he said during a recent interview in
his book-lined
corner office at Frankfurt, Garbus, Klein & Selz in New
York.
Take a hypothetical case, he said: If a major newspaper that
operated an
online news site wrote an article saying that somebody had
broken the DVD
encryption code, and it linked to a site that had the code on
it, "I think
they'd have absolutely every right to do that."
"Well, I have a defendant who is a journalist," Garbus
continued. "He has
run a Web site magazine for three years. So he's not The New
York Times.
But there are certain protections that go to him as well as The
New York
Times."
The linking controversy is the latest aspect of the New York DVD
case, which
is being closely watched by lawyers, hackers and online
businesses.
Movies that are released in the DVD format are protected by a
security system
called the Contents Scramble System (CSS). Under the CSS scheme,
the movie
data embedded in the DVD disks are encrypted. They may only be
decrypted
and played back for viewing on an authorized DVD player or
computer hard
drive that has a licensed CSS key.
Eight Hollywood movie studios filed suit in federal court in
Manhattan in
January, saying three defendants, including Corley, had posted
the DeCSS
program on Web sites they operated. The studios said that DeCSS
was a piracy
tool that could be used to make decrypted digital copies of
movies, which
could then be distributed on the Internet.
Lawyers for the three defendants argued in a hearing in January
that the
primary purpose of DeCSS is to allow consumers to play DVDs that
they already
owned on a computer that runs the Linux operating system.
|
Thomas Dallal for The New York Times
|
Martin Garbus, a well-known
first amendment
lawyer, argues that his client has a perfect right to link
to sites posting
a controversial software program called DeCSS
|
So far, the federal district court judge in
the case,
Judge Lewis A. Kaplan, has sided with the movie studios. In
January he
ordered the three defendants to remove all DeCSS
postings
on their sites, pending trial.
Although Judge Kaplan appeared to agree with Hollywood that
DeCSS is essentially
a piracy tool, he said in a written opinion that the purpose of
DeCSS really
did not matter.
At a minimum, he wrote, DeCSS circumvents the CSS access-control
scheme,
so it violates the "anti-circumvention" provision of the federal
Digital
Millennium Copyright Act of 1998. That law makes it illegal for
anyone to
offer to the public technology that is designed to circumvent a
technological
measure controlling access to a copyright-protected work. In a
sense, Judge
Kaplan said that under his reading of the copyright act, it was
illegal to
provide a device that hacked CSS, regardless of what the user of
that device
did with the decrypted DVD.
Following the court's order, two defendants settled with the
movie studios.
Corley, the remaining defendant, has taken the DeCSS software
off of his
site. But he has added more links from his site
to other sites
that have posted the software, and the site encourages others to
set up so-called
mirror sites.
"Don't do this because you just want to copy DVD's -- that's not
what this
fight is about at all," the 2600 site says. "This is about
freedom of information
-- the right we all still have to LEARN how technology works."
In papers filed earlier this month, the movie studios asked
Judge Kaplan
to amend his previous order to prohibit Corley
from linking
to DeCSS. The studios argued that Corley's catalog of links --
more than
400 -- is a bald attempt to evade the spirit of the prior
injunction by
continuing to propagate the disputed software. They also said
that the copyright
act's language prohibiting the provision of or "trafficking" in
a circumvention
device includes linking.
For his part, Garbus said he was confident he could head off the
linking
ban. Moreover, he said he was sure he could change the judge's
mind about
the facts of the case after he presents the court with
affidavits from various
experts saying that none of the linking to or posting of DeCSS
has been shown
to lead to widespread piracy or copying of DVDs.
Garbus said he would also present evidence from legal scholars
that the copyright
act's anti-circumvention clause does not ban the breaking of an
encryption
barrier for the legitimate purpose of "fair use."
"I think the MPAA has succeeded in making it seem like it is the
plaintiffs
against a bunch of liars and thieves and pirates," Garbus
said. He added
later: "Mr. Corley doesn't have the capability to use
DeCSS. He's never
downloaded DeCSS. He's never made a pirated copy" of a DVD
movie.
So far the MPAA is sticking to its hard line. At a seminar on
e-commerce
and the Digital Millennium Copyright Act at Yale University this
week, Gregory
P. Goeckner, vice president and deputy general counsel of the
MPAA, said
that DeCSS greatly increased the threat of movie piracy on the
Internet.
Goeckner added that after the court's order banning posting of
DeCSS, Corley
"went on a campaign" to add links to his site. There was "a
clear attempt"
by Corley "to get around the judge's injunction," Goeckner said.
Garbus, 65, has represented many book publishers, authors and
dissidents
in his long legal career. As part of his First Amendment work,
he has defended
Lenny Bruce, Henry Miller and Salman Rushdie, among others.
He readily admits that he is not tech-savvy. But he said he sees
this as
an advantage because it will force him to learn his subject with
an eye toward
explaining it to the court in an understandable way.
Garbus predicted that after he succeeds in scotching the movie
studios' effort
to ban linking, he will make a motion to vacate Judge Kaplan's
prior preliminary
injunction and try to make the entire case go away. Failing
that, he is ready
for trial, which is scheduled for December.
Yochai Benkler, a professor at New York University Law School
who is an expert
on intellectual property and the Internet, predicted that the
ultimate outcome
of the New York DVD case, and a companion case filed in federal
court in
Connecticut, could establish important legal precedents. He said
Judge Kaplan's
view of the copyright act was "radical."
If the judge's view is correct, Benkler said, then the Digital
Millennium
Copyright Act "does something no copyright law has ever done --
it extinguishes
fair use," he said.
Carl S. Kaplan at
kaplanc@nytimes.com
welcomes your
comments and suggestions.
