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Digital use of movies sparks free speech fight in lawsuit

Monday, August 07, 2000

By Byron Spice, Science Editor, Post-Gazette

The long sequence of ones and zeroes that make up the object code of a computer software program may look like gibberish to most of us, but to David Touretzky, it's speech.

David Touretzky's T-shirt bears the code for DVD unscrambling software the movie industry is trying to stop. (Steve Mellon, Post-Gazette) 

More than that, it is expressive speech that deserves First Amendment protection, argues Touretzky, a Carnegie Mellon University computer scientist.

Touretzky's position has now become a key part of a federal court case in Manhattan involving the movie technology known as DVD. Similar to the recent Napster court fight involving digital music, the New York case features the movie industry trying to block dissemination of software that would allow computer users to decode encrypted DVD movie files.

At first, the judge in the case, Lewis Kaplan, decided that computer code "is no more expressive than an automobile ignition key."

At least that was his sentiment earlier this year, when he issued an injunction barring a Web site from posting the source code of a program for decrypting movies recorded on DVD discs. By the time he finished hearing testimony in a six-day civil trial that concluded July 25, however, Kaplan wasn't so sure anymore.

In fact, testimony by Touretzky was so persuasive, Kaplan said, "I just don't think it's likely ultimately to prove tenable to say that computer code of any kind has no expressive content."

The First Amendment is just one of the issues that Kaplan must decide in the case, which was brought by the movie industry against cyberjournalist Eric Corley, who runs a Web site,, and publishes "2600: The Hacker Quarterly." Movie studios are trying to halt the distribution and use of a program that allows users to unscramble movies encrypted on DVDs; Corley had posted a copy of the program on his Web site.

Lawyers are to submit their final written arguments this week to Kaplan, who will decide the case without a jury.

What the movie studios are trying to prevent is the sort of widespread copying, downloading and sharing of DVD movies that has plagued the music recording industry with songs, and is abetted by the online service of Napster Inc.

The other expert

Touretzky is not the only Carnegie Mellon expert involved in the DVD case. Michael Shamos, a computer scientist there, agrees with Touretzky that computer software can be expressive speech, but he is weighing in on the opposite side of this case.

Touretzky is convinced that software is speech that can't be outlawed and that the movie industry is trying to do away with the concept of "fair use" of DVDs by consumers.

Shamos, a lawyer as well as a computer scientist, argues that this particular bit of software is not expressive speech that deserves protection and agrees with the movie industry that its unauthorized use amounts to piracy.

Worried that the digitized format of DVDs would make it easy for people to copy DVD movies, movie studios opted to encrypt movies they released on DVD using a system called the Content Scramble System, or CSS. They persuaded Congress in 1998 to pass the Digital Millennium Copyright Act, which made it illegal to traffic in technology for decrypting DVDs.

DVDs, or digital video discs, have become the most successful new consumer electronics product of recent years. A full-length movie can be stored on a disc the size of a music CD. Millions of players are now in use and 172 million discs are expected to be sold this year.

So the industry was quick to respond last fall when a Norwegian teen-ager and two acquaintances developed a computer program that cracked the CSS encryption system, which they called DeCSS. The program's source code was rapidly distributed through the Internet. The DVD Copy Control Association, an industry group, filed suit in a California state court against dozens of Web sites that posted the DeCSS program or links to the program, claiming they were in violation of the state's trade secrets law. That case has yet to be decided.

The case against Corley, filed in federal court, claims that posting DeCSS violated the Digital Millennium Copyright Act's prohibition against technology that would defeat CSS.

At Carnegie Mellon, Touretzky spends most of his time studying how the rat brain functions and how robots can be taught to perform tasks in the same ways that animals can be taught. But he also is a passionate advocate of free speech on the Internet.

He was appalled when he learned of the efforts to prevent Internet sites from posting the DeCSS source code. "That is just a flat-out assault on the Internet," he said.

Like bomb instructions

Preventing the dissemination of software, he contends, is no different from attempts to ban protected speech. LSD may be illegal, but people have the right to print the formula for creating it. A bomb might be illegal, but that doesn't stop someone from printing the schematics for a bomb timing device. In the same way, he reasoned, a device that unscrambled DVDs might be illegal, but the source code that shows how to do it should be protected speech.

Moreover, the movie industry was impinging on the principle of fair use, Touretzky said. People are allowed to make tape recordings of CDs or other pre-recorded music for their own use, for instance, but the CSS encryption would prevent people from doing the same with their own DVDs.

So Touretzky decided not only to post the source code on his own Web site; he put together a Web site he called "Gallery of CSS Descramblers."

"It's like a museum," he said. The displays consist of different ways of representing DeCSS -- as the object code that is readable by a computer, as the source code that is readable by humans, in different computer languages, in plain English, and so forth. One display is a picture of a T-shirt that has the source code imprinted on it.

The point he was trying to make was that software was speech that could be expressed in many ways. Kaplan's injunction banning distribution of the source code, Touretzky believed, was flawed because it couldn't stop the same information from being expressed in many other forms.

Touretzky called up the San Francisco-based Electronic Frontier Foundation, "the ACLU of cyberspace," which is defending Corley in the federal suit, and suggested they take a look at his gallery.

Robin Gross, a staff attorney, said she didn't know anything about Touretzky at the time, but once she saw the gallery Web site, she was convinced that it might help convince Kaplan.

During Touretzky's testimony in the Manhattan court room, "the judge got out of his chair and walked back and forth," Gross said, "obviously pondering what [Touretzky] was saying."

At the end of the trial, Kaplan said he didn't think any of the testimony had changed his thinking regarding the copyright law. "I think one thing probably has changed with respect to the constitutional analysis, and that is that subject to thinking about it some more, I really find what professor Touretzky had to say today extremely persuasive and educational about computer code," he said.

"It was nice to see his mind changing on a core issue that we've been arguing all along," Gross said. But she emphasized that doesn't necessarily mean he will rule in favor of the defense.

No real 'speech'

For instance, Shamos noted that while software may sometimes be expressive speech, not all software deserves such protection. About half of the DeCSS code, he said, consists of the coded key necessary to unlock the CSS encryption and the other half amounts to a program for adding up a column of numbers.

"There is no message there to a human being," Shamos said.

And even if Kaplan decided DeCSS was expressive speech, "we all know that the First Amendment isn't absolute," Shamos said. Incitement to riot, or yelling 'fire' in a crowded theater, are examples of speech that is not protected.

Shamos, co-director of Carnegie Mellon's Institute for E-commerce, did not testify whether computer code is expressive speech, but he was hired by the plaintiffs to demonstrate that DVD movies can be decrypted, transmitted and downloaded over the Internet in a reasonable amount of time. The defense had argued, he noted, that the sheer size of digitized movies make them impractical for sharing in the same way that CDs can be swapped over the Internet via Napster.

But Shamos and a graduate student showed that they could find Web sites with lists of movies available for downloading. They made contact with a Web user, known only to them by his Internet name, and swapped movies.

It took about six hours to download the movie -- a long time, but a task that could easily be accomplished overnight using a high-speed DSL line available through local phone companies. "That kind of thing can occur as you sleep," he said. And the quality of the movie they received was nearly indistinguishable from one that could be purchased on DVD, he added.

Given that capability, "who in his right mind would ever pay money for one?" Shamos said. The digitized movie could be swapped again, or could be used to press as many new DVD copies as a person might want for use or for sale.

"People are not just using DeCSS for personal use," maintained Shamos, who predicted that Kaplan will rule in favor of the movie industry. Widespread use of such programs eventually would dissuade the studios from releasing movies on DVD, or to lower the quality of their productions overall. "The pirates and the people who seem to enjoy this sort of thing don't seem to make that connection."

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