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Descrambling Code Still Under Fire

MPAA seeks, threatens Web sites that post DeCSS program that decrypts DVDs.

By Sam Costello, IDG News   

The action was not unexpected. In an August 17 ruling, a New York State District Court barred journalist Eric Corley from linking to DeCSS, a program that decrypts DVDs, from the Web site of his publication, 2600: The Hacker Quarterly. (See "Court Bars Hacker From Posting Code.")

The MPAA claims any site that offers DeCSS--and the Internet service provider it uses--are violating the injunction and the 1998 Digital Millennium Copyright Act. The organization also claims the injunction prohibits linking to any site containing DeCSS "or otherwise trafficking in DeCSS." That line is raising great concern among some Net users.

"Anything that chills linking is dangerous for the Web," says Wendy Seltzer, a fellow at the Berkman Center for the Internet and Society at Harvard University.

After all, the Internet is essentially nothing more than a series of links, she notes. Eventually, every Web site is linked to every other site, and such an order could fundamentally change the Internet.

The injunction does require intent to circumvent the Content Scrambling System in order for links to be illegal. This provision safeguards search engines and the MPAA itself--because its Web site leads, through a series of links, to sites that offer DeCSS.

People surfing legitimately need not fear a chilling effect, says Mark Litvack, vice president and legal director of antipiracy for the MPAA. Jonathan Zittrain, also a fellow at the Berkman Center, agrees, saying there's no problem if the MPAA does not push the ruling too far.

How Far Is MPAA's Grasp?

But the MPAA's methods also raise questions. For example, its letter states a permanent injunction is issued against all postings of DeCSS, but that is not true, says the Berkman Center's Seltzer. The injunction bars only the 2600 Web site from posting or linking, she says.

"The fact that the MPAA is using the injunction in this manner is a non sequitur" and bets on the outcome that other courts will echo the New York decision, she says.

The MPAA disagrees. The injunction directly applies only to Corley and 2600, but the law governs everyone, says Greg Goeckner, the MPAA's deputy general counsel.

Seltzer also believes the MPAA may be engaging in "scare tactics." For example, it also demands that ISPs release the name and address of people who operate sites that it contends violate the injunction, along with related records. That makes some DeCSS fans worry that they're next in line for prosecution.

The MPAA can't sue downloaders, Seltzer says. Until the DMCA takes effect in October, using an encryption circumvention device such as DeCSS is not illegal--only its distribution is, she says.

Seltzer predicts a long appeals process in the case. The defendants hope an appeals court will consider it an unfair restriction on fair use of media.

"If what many people think of as natural activities have become criminal, then the law has become out of touch with reality," she says. "It is not a stable situation where so many believe the law is wrong."