The cases of DVD-CCA (DVD Copy Control Association) vs. Bunner, and DVD-CCA versus Pavlovich are closely related, but rendered different outcomes In both cases, the DVD-CCA was suing because their secret computer program, DeCSS, was posted on the internet for the public to take advantage of at their will. This DeCSS code, allows people to play an encrypted DVD on a non-CSS compatible DVD player or drive. In the DVD-CCA's case against Bunner, they targeted Bunner for making the DeCSS computer program on his website. The court found Bunner innocent, citing the fact that restraining computer programs from distribution is anear impossibility. Since the program had already circulated worldwide when Bunner posted it, he could be found at fault. In the DVD-CCA's case against Pavlovich, they targeted Pavlovich for the same reasons as Bunner. The court ruling was different concerning this case though because they decided that since Pavlovich was a Texas resident, he could not be forced to attend trial in the state of California. This decision developed jurisdiction lines for claims against posting information on the internet. These two particular cases were only the highlights of the hundreds of others that the DVD-CCA filed against other citizens who posted the DeCSS code on their websites. These cases show how difficult existing copyright law can make the prosecution of certain acts that may in fact lead to mass piracy.
DVDs are protected by a security system called the Contents Scramble System, which prevents unauthorized use and copying of the encoded material. Thus, only devices that have the CSS key can play these videos. In this lawsuit, eight major movie studios sued Jeraimee Hughes for disseminating a software device, called DeCSS, that can bypass this protective shield. Hughes posted this application on his Internet site, advertising that DeCSS is a "free DVD decoder that allows people ot copy DVDs." This violates the anti-circumvention provision of the Digital Millennium Copyright Act of 1988. Regardless of whether or not people utlize such a device, it is illegal to provide technology that circumvents a code that is intended for copyright protection.
There have been a series of other lawsuits against individuals who have also distributed DeCSS through the web. They argue that their actions are lawful under the First Amendment and constitute as fair use under the Copyright Act. Whereas the First Amendment right defense is more complex, the fair use argument is baseless. The defendants are not being sued for copyright infringement but are being sued for providing an illegal encryption decoder. In the case against Hughes, and generally speaking for most of these lawsuits, the defendant was found guilty.
Because my paper explores the digital advancements that pose a threat to the movie industry and how the industry has responded, this case serves as a perfect example of both. Piracy has become more advanced due to digital technologies. Individuals can create devices that can crack security codes and promulgate the information via the web. In order to counter these efforts, the movie industry must take legal action to prevent others from doing the same. Although the movie industry is also improving upon digital means for protection, it seems at this point that hackers will always remain a threat, and therefore must be stopped by the law.
The first two examples of reverse engineering that the article gives are open source projects. The ability of open source developers to reverse engineer the competing instant messaging clients developed by internet companies like Yahoo, AOL, and Microsoft has had a dual effect – firstly, the article points out, it has allowed innovation by letting third-party developers (open source or otherwise) to create hybrid programs that bridge the inherent gaps in these incompatible protocols. Additionally, the presence of quality open source messaging software has helped to further the legitimacy of open source platforms such as Linux.
The second example is that of Samba, an open source program that allows Microsoft Windows based file sharing services to be both hosted on or accessed by any number of platforms. Because of Samba, users of Apple’s Mac OS X or Linux can interoperate with Microsoft Windows networks. The article points out that this has (also) lent legitimacy to Linux as a platform and helped it to compete in a world of proprietary standards.
Because of the decentralized nature of the open source movement uses of technology that require strict licenses is necessarily limited as there is no governing body to obtain and regulate use of licenses. This is especially true with licenses that prohibit disclosure of the underlying technology, as does the license from the DVD Copy Control Association. As a result of this, the extremely aggressive legal tactics of the content-owning industry pose a potential threat to the ability to choose what computer software to use, although it is interesting to note that it’s not clear that they have actually posed any hindrance to the open source movement.
Howver, the opinion of the court written by Justice Brown finds that Pavlovich cannot be forced to stand trial in California for the publishing of DeCSS on his web site. Pavlovich is not a California resident, performs no business in California, and was not actively encouraging California residents to use his algorithm to harm Californinan businesses. Brown determined that he cannot be held responsible for any negative economic impacts on California businesses that his posting caused.
The outcome of this case is important when considering the Dmitry Skylarov situation. Skylarov was detained for months for breaking a law of a country which he was not a citizen of, nor was he present in at the time he allegedly violated the DMCA. Not too long after, the courts are ruling that the liability can be restricted by state lines.
Another interesting aspect to this case is the dissenting opinion by Justice Baxter, particularly his wording. He critizies Pavlovich's "network of 'open source' associates'" in their efforts "to undermine and defeat the very purposes of hte licensed CSS encryption." Baxter tries to connect open source and piracy, a misconception that many people have. This association hurts legitimate developers and their efforts.
Baxter's opinions also details the inherent incompatabilities with the open source movement and closed DRM. An open source project could never be licensed by the DVD-CCA because the stipulations would never allow certain parts of the code to be revealed. He also compilcates the decision by discussing the fact that the whole point of the the DMCA to restrict playback ability. Whatever their motivations were, they were making use of a technology that the DVD-CCA should have full control of and was developed through illegal means under US law. Baxter determines that, jurisdiction issues asside, the LiViD developers should be held responsible for their development with an illegal technology.
DVD-CCA vs. Bunner brings up the issue of posting DeCSS several years after its original posting. The DVD-CCA at the time of the original ruling in 1999 sent out cease and decist letters forcing web sites to remove any mention or discussion of the algorithm and codes from their web sites. The courts granted injunctions against any sites that posted the algorithm as they were revealing the DVD-CCA's trade secret as well as violating the trafficking provision of the DMCA. However, the court determined that even before the original injunction, the majority of the people who wanted to obtain access to the code got it. So many have access to the code that the court brings into question the protected status of the DeCSS algorithm, and the court determined that the DVD-CCA did not make a strong case to warrant an injunction against Bunner's web site.
The most important result of this case is that the DVD-CCA was unable to demonstrate any harm caused or potentially caused by DeCSS being posted by Bunner. The movie industry still profits massively from DVD sales in spite of the algorithm's release. If the courts determined that it being released out into the open will have little impact on the businesses protected by DeCSS, the original publishing was not as damaging as the DVD-CCA and the industry originally claimed.
Also, at this point any protection granted by using the DMCA to enforce trafficking restrictions on the encryption algorithm has been lost. Open source encryption algorithms have the benefit of being examined by experts to make them the most effective. All the DVD-CCA accomplishes by continuing to close the algorithm off to the community is losing the benefits of the scrutiny that open techniques get. This case is a strong example of what papers such as “DMCA Against the Darknet” propose: that DMCA is not an effective tool for countering piracy and that anti-piracy methods that depend solely on DRM are bound to fail.
The most important thing to come out of the exemption request is the context in which research is given. In describing the valuable research he participated it in before the DMCA was enacted, Felten notes that the SDMI sponsored his acclaimed research paper on breaking access control methods. The SDMI is a group of music distributors, and had something to gain from their studies, and now sought to prevent others from sharing in this knowledge. Clearly, by inhibiting research into access control, the technology of copyright protection and the lessons learned from the research falls solely in the hands of the gatekeepers, the record companies. Without the added input of the academic community, research in the field has been hindered and copyright holders have not been provided the best digital protection methods.
The best example of his hindered research is the Sony Rootkit debacle. He and an associate discovered the vulnerability but had to delay publication and hire a lawyer to make sure that they weren't exposing themselves to DMCA violation. Threats of DMCA violations prevent important studies and important information from reaching the consumer.
The court determined that both posting and linking were not protected by the first amendment. They determined that while there is a part of code which is speech, there is also a non-speech component which can be banned under the anti-circumvention clause. Exemptions are provided for reverse engineering and cryptography. However, these exemptions only extend to the cryptographers and the reverse engineers directly. Publishing their results is not considered an exemption. The consequence of this decision is that to prevent lawsuits, technical journals will likely avoid discussion of Digital Rights Management. For example, discovery of important security flaws would not be published because it might hint as to how to break the encryption. Understanding the flaws of the current generation however is essential to enhancing security for in the future. Development of future security methods have continued to be crippled by the DMCA, due to the limited scope of the exemptions.