U.S. Judge rules links illegal and code not free speech

In what some observers see as a significant ruling for the future of the Internet, a U.S. federal judge Thursday issued a permanent injunction barring an online hacker publication from linking to Web sites where visitors can download illegal code, such as De-Content Scrambling System (DeCSS).

If Web site operators know that the offending code is available at linked sites and offer the links with the intent to facilitate the spread of the code they are in violation of the anti-trafficking provision of the Digital Millennium Copyright Act (DMCA), ruled New York State District Court Judge Lewis A. Kaplan in a 93-page court document.

The Motion Picture Association of America (MPAA) sued journalist Eric C. Corley, who also goes by the name Emmanuel Goldstein, after he and his employer, 2600: The Hacker Quarterly, decided to post the DeCSS source code on their Web site. DeCSS allows users to circumvent the Content Scrambling System, an encryption system designed to prevent piracy and included by the MPAA on all DVDs (digital video disks).

Corley’s attorneys argued that posting of DeCSS was protected under the constitutional First Amendment guarantees of free speech and press. Judge Kaplan denied the claims across the board.

At various times, throughout his written decision, Kaplan compared the posting of the code to a political assassination, robbing a bank and a disease. Kaplan held that linking was the “functional equivalent” of providing the DeCSS code.

Some, who fear that the decision could be the first step to criminalizing many forms of linking online, sees that section of the ruling as the most important facet of the case. Kaplan himself recognized in his ruling the potential for a “chilling effect,” but determined that the intent to violate the law will separate legitimate from illegal links.

“Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement,” Kaplan wrote. “Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin’s action.”

At least one analyst said Judge Kaplan’s ruling should not be a great cause for concern among law-abiding Web site operators. The judge made it clear in his ruling that courts should only find Web site operators in violation of the DMCA if they show a willful intent to distribute illegal code, said Susan Billheimer, an industry analyst with Zona Research Inc. in Redwood City, Calif.

“It’s not going to be the case that if you link to something unknowingly that has copyrighted material, that you’re going to be found in violation of the law,” Billheimer said.

In his ruling, Kaplan noted that the hacker publication offered links to several sites where the illegal code was available. In cases where a hyperlink automatically started the process of downloading the DeCSS, the defendant had clearly broken the law, the judge said. In cases where links took the user to a page where no other content than the DeCSS code was available, that also was against the law, the judge wrote.

“Potentially more troublesome” are links that lead users to a Web page where a good deal of other content is available besides the DeCSS code, Kaplan said.

“If one assumed, for the purposes of argument, that The Los Angeles Times Web site somewhere contained the DeCSS code, it would be wrong to say that anyone who linked to the Los Angeles Times Web site, regardless of purpose or the manner in which the link was described” was in violation of the law, Kaplan wrote in his opinion.

The validity of the DMCA, the wide-ranging law passed by the U.S. Congress in 1998, which regulates intellectual property rights in the digital sphere, was considered by many to be at stake in this case. If so, Kaplan has upheld the law resoundingly.

The ruling refutes all of Corley’s claims about the DMCA: that it is overbroad, that it is vague, that it interferes with the first amendment, that it abridges fair use.

The DMCA, according to Kaplan, is neither overbroad nor vague, and legitimately regulates the posting and use of DeCSS. The DMCA specifically bars the use of a technology to circumvent legal copyright protection measures. Kaplan held that DeCSS is “clearly a means of circumventing a technological access control measure,” and thus violates the DMCA.

Another of the central components of Corley’s defense was that DeCSS was created through a process of reverse engineering, something protected by the DMCA, so as to allow the creation of a DVD player for Linux, something which does not currently exist.

Kaplan denied the validity of that claim, both saying that Corley was not protected on that count because he had not written DeCSS, but also because the noncommercial nature of Linux use was not sufficient guard from DMCA control.

The Motion Picture Association of America had all of its claims accepted by Kaplan, who called the MPAA “gravely injured.”

MPAA tests showed that creating a pirated DVD using DeCSS and a compression scheme called DivX took as long as 10 hours and that downloading such a file over a standard Internet connection could take as many as six hours. Despite that, Kaplan wrote that DeCSS was a “free, effective and fast means” of pirating DVDs. DivX allows a full-length DVD to fit on a much smaller CD-ROM with little quality loss.

The posting of DeCSS could have the effect of obsoleting all current DVD players if the MPAA were to change the encryption scheme used on DVDs so that DeCSS would no longer unlock it.

Kaplan compared posting DeCSS to publication of a bank vault combination in the newspaper, writing that “even if no one uses the combination to open the lock, its mere publication has the effect of defeating the bank’s security system, forcing the bank to reprogram the lock.”

Though the judge called Corley’s claims “a farrago of distortions,” he penalized Corley in a relatively light way. (A farrago is a “confused mixture” or ” hodgepodge.”) Though there is now a permanent injunction against posting and linking to DeCSS code, Corley will only be forced to pay the MPAA’s court taxes, rather than all of their legal fees, as the MPAA sought.

Kaplan’s ruling can be found at http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08117.PDF

The judgment can be found at http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08118.PDF

2600: The Hacker Quarterly can be contacted online at http://www.2600.com/.