First Amendment Lawyer Takes on Movie Studios in DVD Case

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First Amendment Lawyer Takes on Movie Studios in DVD Case


April 28, 2000


First Amendment Lawyer Takes on Movie Studios in DVD Case

Eight 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.

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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 welcomes your comments and suggestions.

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