DVDs, peer-to-peer networking, censorship, and the DMCA

• The RIAA from hearing transcripts): "RIAA joins the other copyright owner groups in urging the Office ad Librarian to allow the prohibition against circumvention of access controls to come into effect in October without any exemptions."
• The MPAA from hearing transcripts): "There has been no evidentiary showing of any realistic likelihood of any adverse effect on anyone's ability to make noninfringing uses of any particular, quote, class of works, unquote, when Section 1201(a)(1)(A) becomes effective."
• As opposed to Laura Gassaway (of UNC) from the hearing transcripts and most other academics and civil rights groups: "The bottom line for us is exempting from the realm of prohibition on circumventing conduct any uses for which the user had lawful initial access."

• Mp3.com was successfully sued by RIAA member companies for violating copyright. All but Universal Music settled out of court (e.g., licensing agreements were signed). Universal Music won in court, and was awarded ~$118-250million in damages (Fox news coverage).
• (Newsflash: According to this Wired article, there is a new bill that will make such database services as my.mp3.com legal.)
• At issue: Can my.mp3.com provide access to CDs that listeners already own, but from mp3.com's digital collection?

• Napster: a peer-to-peer file sharing system. Napster.com provides software and a centralized database of what's available from moment to moment.

  Napster lost in court in July, when Judge Patel granted an injunction against Napster that resulted in many Metallica fans being banned. Napster & the RIAA are in the midst of an appeal (CNET story). Various artists, as well as the RIAA, have taken a stand against (or sometimes for) Napster.

• There are many Napster look-alikes, but most are less subject to censorship due to less centralization. This also makes it harder for them to become immensely popular. See Freenet and Gnutella (here's a Gnutella analysis from when it was posted) examples.
• Question: is this large-scale civil disobediance and copyright violation? Or is it just people sharing things they own in legitimate ways?
• Question: What would you do as a copyright owner? As an artist (who might not own copyright)?

• In October 1999, programs for playing encrypted DVDs were made available: DeCSS for Windows and css_auth for Linux. The MPAA acted quickly to file lawsuits, send cease and desist letters, and sway the media and law enforcement to their point of view.
• The two main lawsuits were in NY and California. The NY case, which the MPAA won against 2600 magazine, said that DeCSS is a violation of the anti-circumvention provisions of the DMCA. 2600 had argued that (a) DeCSS enabled legal use, including fair use, and (b) DeCSS was obtained by reverse engineering, which is permitted, and (c) DeCSS is software, and therefore is protected like speech.

  The California case, which has not yet been heard, says that CSS is a trade secret, and therefore those who share DeCSS have broken the law by sharing it.

• In fact, DeCSS is not needed to copy a DVD, just to play it.
• In fact, DeCSS won't even play new DVDs, because the "broken" key it relies on has been removed.
• In fact, there are a variety of new programs that will play DVDs on Windows and Linux computers.
• In fact, one of the qualities of licensed software is that it enforces the copyright holder's wishes. For example, it might determine that commercials or trailers must be viewed. In other venues (especially videotapes), various ways of making non-infringing use that avoid commercials have been found legal.
• In fact, the MPAA member organization profits have continued to skyrocket, despite their bluster about increased piracy. Note that a substantial portion of profits from movies come from rental and sale of recordings (as well as merchandising and other sources), which typically far exceeds revenues from theatres.
• In fact, although the MPAA's claims rests on hysteria about abundant piracy, they could not present any facts or statistics about actual piracy involving DeCSS. Piracy exists, but largely through large factories in other countries (like China).

"I'm rather jubilant now. What Judge Kaplan did was blow away every one of these brittle and fragile rebuttals. He threw out fair use; he threw out reverse engineering; he threw out linking."

- Jack Valenti, president of the Motion Picture Association of America.