January 8, 2003

DVD Wars - Hollywood loses a round in an ongoing battle

- By Jeff Elkins -

The Hollywood Hegemony has lost a key battle in their ongoing effort to suppress the rights of consumers worldwide. Norwegian teenager Jon Johansen has been acquitted of charges that he committed a crime when he created the DeCSS program that allowed him to watch legally purchased DVDs on his Linux computer.

The court ruled there was "no evidence" that Johansen or anyone else used DeCSS for illegal purposes. Nor was there any evidence that Johansen intended to contribute to illegal copying.

DeCSS defeats the copyright protection system known as Contents Scramble System (CSS), which the entertainment industry uses to protect films distributed on DVDs. While it has since been surpassed by newer programs, Johansen's code was the first that enabled end-users to view DVDs using software non-sanctioned by Hollywood.

The long arm of US intellectual property law reached into Norway, coercing the authorities of the Norwegian Economic Crime Unit (ÃKOKRIM) into charging Jon Johansen for creating DeCSS in 1999 when he was 15 years old. The charges were brought at the behest of the Motion Picture Association of America, headed by Jack Valenti, former fixer for US president Lyndon Baynes Johnson.

ÃKOKRIM Chief Prosecutor Inger Marie Sunde indicted Johansen for violating Norwegian Criminal Code section 145(2), which outlaws breaking into another person's locked property to gain access to data that one is not entitled to access. The MPAA had also requested ÃKOKRIM charge Johansen with contributory copyright infringement, a charge that the prosecutors declined to bring.

ÃKOKRIM, is the Norwegian law enforcement agency with jurisdiction over economic crimes.

Johansen said after the ruling that he would celebrate by "watching DVD films on unlicensed players."

David 1, Goliath 0?

Not quite.

DeCSS is still under sanction in the United States, and is actually a very small slice of a much larger intellectual property pie. However, Johansen's code brought about a veritable hurricane of litigation in American courts.

Most notably, charges were brought 2600 Magazine for both publishing DeCSS code and links to the code elsewhere, under the auspices of the Digital Millennium Copyright Act (DMCA).

The magazine lost legal battles in both a New York District Court and in the 2nd Circuit Court of Appeals. 2600's legal team and the EFF (Electronic Frontier Foundation) decided not to pursue an appeal based on DeCSS to the Supreme Court in an effort to overturn the DMCA.

Amazingly, a manufacturer of tee-shirts was dragged into the fray. The DVD Copy Control Association, included Copyleft, a small New Jersey firm, in a suit against DVD de-scrambler distributors for selling an OpenDVD T-shirt that dared to display DeCSS code, translated into Perl.

"Copyleft is distributing and selling T-shirts with DeCSS emblazoned on the back of them," said Robert G. Sugarman, an attorney for the DVD CCA. "That is every bit as much of a theft of the trade secrets as was the posting on websites which was enjoined by the courts."

And so it goes. Sugarman is a typical example of the hired guns employed by the MPAA and RIAA, and thus far, they've held the upper hand in the US court system. However, that may be changing.

Texas resident Matthew Pavlovich was also sued by the DVD-CCA.

Justice Sandra Day O'Connor, in what has been described as a stunning setback for the MPAA, has ruled in favor of the California Supreme Court, supporting that court's split 4-3 decision stating that Pavlovich could not be sued in a California court for distributing DeCSS from his Texas web site.

"The entertainment companies need to stop pretending that DeCSS is a secret.Justice O'Connor correctly saw that there was no need for emergency relief to keep DeCSS a secret. It doesn't pass the giggle test, " said Cindy Cohn, legal director for the Electronic Frontier Foundation, which is assisting Pavlovich.

Also on the horizon is a suit and counter-suit involving 321 Studios and the MPAA.

Last April, 321 Studios asked a federal court to declare its copying products legitimate because they would allow people to make personal copies of DVDs they already own, claiming the software was legal under the concept of fair use. The studios took no action at that time, but with the release of 321 Studio's new product DVD-Xcopy which allows exact duplication of DVDs, they have moved to counter-sue in federal court.

Johansen's victory in a Norwegian court is heartening, as is O'Conner's recent ruling, but it would be a mistake to underestimate the power that so-called "content providers" hold over the ordinary consumer.

Interesting times lie ahead, and the smart money is still betting on Hollywood.

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Jeff Elkins is a frequent contributor to the popular libertarian web site LewRockwell.com, and his articles have been featured by the Washington Times, Worldnet Daily, Antiwar.com, Yahoo Op/Ed and Pravda, as well as many other electronic publications. His personal blog is located at http://www.elkins.org

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