7.8 DeCSS case

Type ‘DeCSS’ into Google and you will get about 800 000 hits. The four pages (pp. 187–190) in The Future of Ideas on this very complex story, which has raised the hackles of people on both sides of the copyright divide, provide one of the clearest short summaries of the case to be found anywhere.

The US Digital Millenium Copyright Act (DMCA) states:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

This means that, in this case, no one is allowed to crack CSS (content scramble system), a code that limits the range of computers on which a DVD can be played.

The DMCA also states:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that –

  • (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

  • (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

  • (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

So, no one is allowed to create a tool (DeCSS) to crack CSS, or provide web pages or links to web pages which have DeCSS.

Lessig's concern is that the DMCA interfered with both fair use and free speech in the case. The district court judge, Kaplan, however, decided that the DMCA regulates code, not fair use; also that copyright owners had the right to employ technological self-help measures to prevent piracy. He inferred that the primary intent of the editor of the magazine Hacker 2600 was to help people crack CSS, so that there were no real free speech issues at stake in preventing him linking to sites containing DeCSS.

Lessig's other concern is that the movie studios have now demonstrated that they are prepared to resort to law when their control is threatened, and that this will have a ‘chilling effect’, making people wary of exercising fair use and free speech rights for fear of the consequences.

In November 2001, three judges in the Court of Appeals agreed with Judge Kaplan's decision. The EFF and Hacker 2600 have decided not to appeal further to the US Supreme Court.

The Californian Supreme Court made a ruling on its DeCSS case in September 2003. The court sent the case back to the lower Appeal Court for further consideration. The key part of the decision, though, was that ordering someone to remove DeCSS from their website ‘does not violate the free speech clauses of the United States and California constitution’ if publication of the code breaches a trade secret. The lower court was spared the need to decide if CSS was still a trade secret despite wide publication of DeCSS when the DVD Content Control Association dropped the case in January 2004. Nevertheless, in February 2004, when the court formally lifted the injunction against the publication of DeCSS, they also said that there was no evidence that CSS was still a trade secret even when the case was originally brought in 1999.

The focus of The Future of Ideas is on the DeCSS cases in the US. Jon Johansen, the teenager who originally posted the DeCSS code on the internet, has also been the subject of a criminal prosecution in his native Norway. It is a crime in Norway, punishable by up to two years in prison, to bypass technological controls to access data one is not entitled to access. On 7 January 2003, three judges unanimously acquitted Johansen of all charges. According to the judges, someone who buys a DVD which has been legally produced has legal access to the film. In essence, they said that someone cannot be punished for breaking into their own property. Johansen had used DeCSS to bypass the technological controls on a DVD he owned, so that he could watch it on his computer. The prosecution appealed against the decision and, on 28 February 2003, the Court of Appeals ordered a full retrial. The retrial took place in December 2003 and Johansen was again acquitted. On 5 January 2004 the Norwegian Economic Crime Unit (Økokrim) announced that they would not be appealing the case further. Johansen is now suing Økokrim for damages and legal costs.

Further reading: If you are interested in looking at further details of the DeCSS case, the OpenLaw: Open DVD forum at the Berkman Center for Internet and Society provides a huge range of material on this case and the DeCSS case in California, which was decided in favour of the defendants.

If you'd rather not get into all the detail covered at OpenLaw, here is some further information on the case that was originally prepared for another course, which presents the basic story and arguments. These links have been provided only because this is a case that is widely misunderstood and one about which many people get hot under the collar.