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Abstract
This research tracked web sites posting or linking to software known as DeCSS over a 26-month period coinciding with a U.S. lawsuit that found posting and linking to the DeCSS software to be illegal. Results showed a decrease in the number of web pages posting the DeCSS software, and a decrease in the number of web pages linking to DeCSS. Seven web sites retained their DeCSS posting for the entire 26-month study period. An increasing number of sites posted nonexecutable forms of DeCSS, and results show a large percentage of web sites contained political speech. The persistence of DeCSS linking and posting was surprising given the prohibition on linking and posting within the United States and given the obsolescence of DeCSS as a DVD decrypter. We suggest that DeCSS linking and posting persists primarily as a political symbol of protest.
Notes
1. Strictly speaking, the U.S. court's decision in Corley is binding only in New York, Connecticut, and Vermont. Nonetheless, the court that issued the decision—and, in particular, the judge who wrote the opinion—are highly influential throughout the country.
2. The case never clearly stated if DeCSS was an access key or a copying key, instead focusing on the activity of distribution.
3. Note that, as indicated in the text already, it is lawful to possess and use a copy key for fair use purposes, but it is unlawful to distribute the key.
4. While a thorough explanation of fair use is beyond the scope of this article, one classic example of fair use would be the excerpting from a book when writing a book review. Recent examples of U.S. case law permitting unauthorized copying as fair use include “time shifting” of over-the-air broadcast television shows—that is, recording the show to watch at a later date—and writing a parody of a work that includes within it large chunks of the original. U.S. law also provides another important exception to the copyright owner's distribution right, an exception known as the “first sale” doctrine. This exception permits the owner of a particular copy of a work to lend and/or sell that copy without permission from the copyright owner. It is largely the first sale doctrine that makes public lending libraries and used bookstores economically feasible.
5. Defenders of the DMCA respond to these sorts of examples by noting that the student can still literally make a “copy” of the original by, for example, pointing a video camera at a monitor while the original film is playing (Universal City Studios v. Corley, 273 F.3d 429, 459 (2d Cir. 2001)). The quality of such a copy would of course be technologically inferior.
6. Given that CSS keys licensing and distribution is strictly controlled, and GNU/Linux is free software, it would be difficult to collect license fees from the multitudes of GNU/Linux free software developers (CitationSamuelson, 2003).
7. It is an open question whether “space shifting” is permitted under the fair use doctrine, though one court has concluded that “space shifting” of musical works is consistent with the statutory purposes of a separate law, the Audio Home Recording Act (Recording Industry Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (1999)). Of course Johansen himself was in Norway and so would not necessarily have been entitled to such a defense, but many GNU/Linux proponents are in the United States.
8. After Reimerdes (one of the original defendants) settled his suit, the case name changed to Universal City Studios v. Corley.
9. The full text of section 1201(a)(2) reads: (2) 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. The court determined that the only purpose or use for DeCSS was to circumvent CSS and that it thus satisfied both subsections (A) and (B) of section 1201(a)(2), i.e., that it was both “primarily designed or produced for the purpose of circumventing” CSS and that it had “only limited commercially significant purpose or use other than to circumvent” CSS. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d at 316–19. The statute also has a number of exceptions, none of which Corley was able to satisfy (111 F. Supp.2d at 319–24).
10. In its decision, the court discussed the importance of linking for the free flow of communication on the Internet and concluded that liability could not be imposed for linking unless “those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology” (Universal City Studios Inc. v. Corley(2000 WL 621120, *1 n.1 [2000)). Since Corley satisfied these requirements, the court enjoined him from linking to any web site containing DeCSS.
11. www.riphelp.com/articles/dvdripping.html, last visited April 2003.
12. www.riphelp.com/articles/dvdripping.html, last visited April 2003.
13. The developers of such software claim that it does not violate the anticircumvention provision of the DMCA. See 321 Studios v. Metro-Goldwyn-Mayer Studios et al. (N.D. Cal., filed April 22, 2002).
14. The Lawrence and Giles results from 1999 suggest that the Alta Vista search engine may take, on average, somewhere between 33 and 166 days to index a new web page. This suggests that new pages appearing in the search results may have been available on the web for some time. Rosenfeld and Morville report that many search engines reindex the web pages previously included in their indexes every 30 days in order to capture any changes (CitationRosenfeld & Morville, 2002).
15. Note that we did not confirm that the software advertised to be DeCSS was in fact actually DeCSS.
16. Note that this coding scheme is a simplification of linking distinctions used by the district court in the Corley case.
17. The term “ripper” is a colloquial term for software that facilitates copying of digital media. DeCSS is one example of a DVD ripper.
18. Neotrace was previously at http://www.neotrace.com, but has since been bought by McAfee software. The Neotrace site is no longer available, but the software is still posted on popular shareware sites.
19. The trace route tool compares the underlying Internet protocol address (IP address) of the web page to the database of IP address registration information in the domain name server system to identity the registration information for the web page. This returns information about an Internet service provider that hosted the web page.
20. Dr. David Touretzky's web site of the Gallery of DeCSS Descramblers is located at http://www-2.cs.cmu.edu/∼dst/DeCSS/Gallery/index.html. Dr. Touretzky, a computer scientist at Carnegie Mellon University, clearly states on his web site that he posts the DeCSS software for educational and research purposes. “Materials provided here are for purposes of education and research.”
21. As noted earlier (note 1), the decision is binding law only in New York, Connecticut, and Vermont, but the decision is likely to be highly influential in other U.S. circuit courts.
22. Although we did not collect data on non-English-language web pages, anectodotal evidence from our data suggests that a great deal of non-English and non-U.S. DeCSS linking and posting occurred. First, often non-English-language pages containing the word “DeCSS” appeared in the results. Some of these pages appeared to link to, or post, DeCSS. Second, our data show that several DeCSS linkers and posters came from English-speaking, non-U.S. countries. Third, a casual analysis of the top 50 results of a non-English-language restricted search for DeCSS in June 2003 showed 6 probable posting and linking pages from non-U.S. sources. These countries included the United Kingdom, Luxembourg, Mexico, Norway, Sweden, and Poland.
23. The legality of different forms of software code are under legal debate. While the Corleycase did not focus on the distinctions between different types of code (e.g., source vs. compiled vs. executable file) Corley had posted and linked to executable forms of DeCSS and therefore this form of the software received the most scrutiny. See Dave Touretzky's Gallery of DeCSS Descramblers for further discussion of this point.
24. See note 23.
25. This case involved a Russian programmer who was criminally prosecuted in the United States for posting on the Web code that allegedly circumvented Adobe E-Book software.
26. The DMCA does also provide for criminal penalties—which would enable government prosecutors to bring a case. To be criminally liable, however, one would need to be distributing DeCSS “for purpose of commercial advantage or private financial gain” (17 U.S.C. § 1204(a)).
27. The original court case (Universal City Studios, Inc. v. Corley, 273 F.3d 429, 439–440 (2d Cir. 2001)) describes aggressive use of cease-and-desist letters against DeCSS posters in 1999: “2600.com was only one of hundreds of web sites that began posting DeCSS near the end of 1999. The movie industry apparently tried to stem the tide by sending cease-and-desist letters to many of these sites. These efforts met with only partial success; a number of sites refused to remove DeCSS.” The Chilling Effects Clearinghouse, a project sponsored by the Electronic Frontier Foundation, the Berkman Center for Internet Law and Society, and several law schools, track cease-and-desist letters related to Copyright law topics including DeCSS. The Clearinghouse database included three examples of DeCSS-related cease-and-desist letters in September 2003. See http://www.chillingeffects.org.
28. There are more morally defensible uses of posted copies of DeCSS (e.g., watching lawfully purchased DVDs on a Linux computer) than there are of unauthorized web postings of movie files. Thus, for the MPAA, focusing on peer-to-peer trading of movie files might be more effective both from a legal and from a public relations perspective.
29. The EFF served as defense council for the Corley case and has filed amicus briefs in other major DMCA cases.
30. The implementation of the EU Copyright Directive allows interpretation by each member nation, thus some variation exists between countries (CitationDusollier, 2003). For information on groups protesting implementation of DMCA-like legislation in the European Union see http://wiki.ael.be/index.php/EUCD-Status.
31. For example, keeping in mind storage limitations, a spider could be programmed to search the web at regular intervals for files containing the term DeCSS and an executable file extension. Alternatively, past studies using very large results sets created random samples by drawing a subset of data from the non-random total search results (e.g., CitationAlmind & Ingwersen, 1997). Use of this methodology, however, would move the sample away from representing the most popular web pages.
32 AltaVista made several important changes to its search engine during the 26-month study period. First, after restricting the number of displayed results to a maximum of 200, they now show all results. Further, it added a “page collapse” option that restricts the results shown for each distinct web site to a maximum of two pages. We did not make use of any features that became available during the course of the study. Further, the June 2002 search results contained many commercial web index pages (e.g., Yahoo) and many pages from Wired Magazine. Previous searches had not contained many of these pages. This suggests that AltaVista changed its collection strategy to favor these types of pages, or that the creators of these pages developed some technique to increase their visibility in AltaVista results.