Facing a major lawsuit is a lot like facing a major illness. It's expensive, time consuming, and there are a million other ways you'd like to be spending your time. But if you don't devote all of your attention to fighting it, your continued existence is profoundly endangered.
That's how this thing has been affecting us since it started back in January. It's greatly interfered with the magazine, production of our film, and organization of our conference. But it was necessary - essential, in fact - and most people seem to understand why.
It's a real shame Judge Kaplan wasn't one of those people.
From the first teleconferenced hearing to the pretrial motions all the way through the trial, I was amazed by what appeared to be unfettered hostility towards us and the many points we attempted to make. I don't see how anyone looking through the transcripts would have any difficulty seeing this. But we all held out hope that this wouldn't be present in the decision.
Were we ever wrong.
See, in my mind, this case has always been about common sense. Someone cracked someone else's badly protected encryption scheme. Game over. It's shot to hell. You don't continue to use bad encryption or pretend it didn't happen. Yet in November, that's exactly what we saw happening. And even worse, we saw people being intimidated into taking down web pages that had the offending code on them.
It was insane! It reminded me of the one car crash I've ever been in where a garbage truck ran through a stale red light right in front of me on 8th and Avenue A in the East Village. The driver tried to intimidate the people who came forward as witnesses, telling them, "You didn't see anything. Get out of here!" But if you know the East Village, you know it's not the place to intimidate people and get away with it. It's also where a lot of the "weirdoes" hang out. So to me, it's always had the mindset of the net. And that's why I've always been comfortable in both environments. And, yeah, the garbage guy got in a shitload of trouble.
The kind of honesty you get by having individuals who aren't afraid to express themselves has always been a threat to those who imagine themselves in power. Until recently, the net was the only place where individual opinion actually had a chance. If the media wouldn't tell your story, YOU could become the media and tell the story yourself. The whole world could be your audience.
I won't even get into how the net is being destroyed by advertising and conglomeration. There's no time to go on the offensive when so much time has to be spent defending one's very existence. Every day we get new reports of people being threatened in some way by some huge corporate entity because their opinions and free expression don't sit well. Years ago, this sort of thing would have been laughed at. Today, it's a very different story. Voices are being silenced, criticism is being eliminated. And very unfortunate precedents are being set.
This is all made possible through bad legislation, things like the Digital Millennium Copyright Act, which has made this lawsuit possible. Unless stopped, there will be many many more like it in the future. And many more bad laws as well. Until we overturn this thing, the danger to all of us is incalculable.
Just for the fun of it, I tried to find out who had voted for the DMCA, so I could make an extra effort not to vote for them. But they did it with a voice vote - there is no record. How reassuring.
So now we have this law that basically says we are not allowed to show people the failings of technology if the people controlling that technology decide they don't want us to. An expansion of this law which could go into effect in October would make it illegal to even TRY to find failings in such technology.
It makes you want to scream. Concepts that most 12-year-olds can grasp and understand the value of are being signed away to entities that are already far too powerful. And the result is what we have been going through extended to however many more want to try and stand up for our vanishing rights.
To get back to the naive notion of common sense that we've been clinging to throughout this ordeal, we thought, no, we KNEW the right thing to do last November was to report the story and to publish the programs. And nobody here is ashamed of the fact that part of the reason for doing this was to show support for people who were being bullied. I've never liked bullies, whether they be kids, teachers, parents, cops, governments, or corporate giants. What they were doing to these people was wrong and we felt that our standing up might make a difference.
Well, it did. But not in the way we expected. Suddenly, WE became the problem even though we had nothing to do with the encryption being cracked or even with the initial release of the story. It was as if someone painted an insult on the side of a building that everyone in the world could see. A newspaper comes along and does a story on this and prints a picture of the building and is then blamed for the insult. Oh, and let's also point out that no matter how hard they try, nobody can wipe the paint off the wall. The way things are today, we're supposed to pretend nothing is wrong and if we dare to report otherwise or present evidence to the contrary, we will take the full brunt of the blame. Sounds like some weird medieval monarchy to me.
The sad fact is that we never had a chance in this court. A mere reading of the decision shows this more clearly than anything I could possibly say. "Not surprisingly, 2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, access other people's e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores and Federal Express." The fact that he would use the phrase "not surprisingly" speaks volumes as to his opinion on our value to society. It is, at best, utter ignorance and only proves beyond any shadow of a doubt how thoroughly Judge Kaplan bought into the MPAA's warped notions of what our magazine is about. We printed an article on weaknesses at Network Solutions that allowed domain names to be stolen. Guess what? They FIXED it as a result of this article and now, domain names, including our own, are not at risk of being stolen, at least, not as much. (Had Kaplan ruled on THAT issue, it would have been illegal for us to tell anyone this and the security holes would still exist.) The same holds true for many of the other security weaknesses we report on. But, as we tried fruitlessly to explain, we exist to report the story, period. Someone may fix the problem because of the story or someone may exploit it. We cannot and will not determine what happens as a result nor will we allow fear of that to make our editorial decisions for us.
Kaplan also seems to share the MPAA's amazement that we would actually copyright our magazine and our web site. ("Interestingly, defendants' copyright both their magazine and the material on their web site to prevent others from copying their works.") It's clear he believes that we have no respect for or belief in the concept of copyright. He either wasn't paying attention during my testimony or simply refuses to believe that copyright is necessary to prevent someone else from taking credit for and control of your work. I repeatedly said that copying was not our concern. What the MPAA is attempting to do with copyright is not at all in line with its original intent.
I also find it amazing how Jon Johansen's credibility is wiped away on two occasions with a single sentence. ("[T]he Court finds that Mr. Johansen and the others who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player if, indeed, developing a Linux-based DVD player was among their purposes." "Substantial questions have been raised both at trial and elsewhere as to the veracity of Mr. Johansen's claim.") Yet not a single ounce of proof that he wasn't being totally honest is ever presented. I mean, we had PLENTY of questions both at trial and everywhere about the MPAA's veracity. But our saying that wouldn't be enough. Why is it that the MPAA is able to so easily put words in a judge's mouth?
The flaws in logic abound. At one point publishing DeCSS is compared to "the publication of a bank vault combination in a national newspaper. Even if no one uses the combination to open the vault, its mere publication has the effect of defeating the bank's security system, forcing the bank to reprogram the lock." First off, this isn't at all similar to what happened. If this analogy were to be correct, someone else would have already published the combination and we would simply have published the SAME information that had already been made public. Second, the security system of the bank was compromised the moment the combination was released or leaked to the public, NOT when this fact was reported in a newspaper. This method of blaming the messenger for the message has been used throughout the world to shut down opposition newspapers and imprison people who don't follow the party line. It's troubling to see it applied here.
Now, on the question of this theoretical bank being forced to reprogram its lock, would anyone hesitate to suggest that that is PRECISELY what they SHOULD do? A bank that didn't do this would probably be prosecuted for negligence. So why doesn't Kaplan apply this logic in his own analogy to the MPAA? Because of this: "Development and implementation of a new DVD copy protection system, however, is far more difficult and costly than reprogramming a combination lock and may carry with it the added problem of rendering the existing installed base of compliant DVD players obsolete." So basically, a security hole can be left in place if it's too expensive to fix and anyone who exposes the continued existence of the hole can be prosecuted? Riiight....
Meanwhile, a few pages later "the Court holds that CSS effectively controls access to plaintiffs' copyrighted works." That made me laugh. Would we be here today if THAT were true?
At one point, DeCSS is compared to an epidemic. But even in that odd analogy, it's recognized that finding the original source of "infection" accomplishes nothing. It's a nifty metaphor but I don't see what it does for the case against us.
Another time, DeCSS is compared to an assassination. No kidding. "Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement." You get the feeling he's deliberately equating computer code with something bad? Maybe it's me. But let's look at this somewhat logically. A political assassination is a completed act. A computer program isn't completed until someone copies it, compiles it (if it's source), and executes it on the proper platform in the proper setting. A more accurate comparison would be to compare INSTRUCTIONS for an assassination to a computer program. They both require someone or something to act upon the instructions before the task is complete. By outlawing all talk of assassination, including those within works of fiction, we achieve the same level of protection that outlawing dissemination of DeCSS accomplishes.
Naturally, one of the most important issues here is that of "fair use" which is something the DMCA appears to be taking away from us. In other words, you are entitled to excerpt portions of copyrighted works for all kinds of purposes. It's also not illegal to make backup copies. These are very fundamental and important concepts. So how do we get around the restrictions that we're now finding in new digital media? Judge Kaplan addressed that important issue this way: "[A]ll or substantially all motion pictures available on DVD are available also on videotape. In consequence, anyone wishing to make lawful use of a particular movie may buy or rent a videotape, play it, and even copy all or part of it with readily available equipment." THAT'S the solution to the "fair use" issue - use old technology that isn't affected by the DMCA?! Not exactly a graceful way of ducking the issues.
Another thing that bothers me is that it doesn't seem to matter in the least WHY DeCSS was written. The fact is that DeCSS was written to circumvent CSS and, even if that was done specifically to cure world hunger, in the eyes of the court, it was a violation of the DMCA. If this is the case, then it's pretty obvious that the DMCA is one screwed up piece of legislation that has to be thrown out. But the judge goes way beyond this, insulting our integrity and existence at every possible opportunity and making no secret of the disdain he feels for the entire case of the defense. One has to wonder why he found that necessary if it was such a clearcut violation.
Naturally, one of the most disturbing parts of all of this is the ruling on linking. "The only distinction is that the entity extending to the user the option of downloading the program is the transferee site rather than defendants, a distinction without a difference." We can all laugh at such words but they represent something very sinister. We are now expected to believe that telling someone how to get a file with a link is the same as offering it yourself. I want to know if this works both ways - if I point someone to a site or product that costs money, is that also a "distinction without a difference" that will allow me to be compensated? This kind of logic is already giving me nightmares.
Finally, there are the disturbing words on who we are and what we stand for and how this is somehow relevant to the decision. "Defendants are in the business of disseminating information to assist hackers in 'cracking' various types of technological security systems. And while defendants argue that they promptly stopped posting DeCSS when enjoined preliminarily from doing so, thus allegedly demonstrating their willingness to comply with the law, their reaction to the preliminary injunction in fact cuts the other way." Interesting, isn't it? Our "reaction" is enough to condemn us, even though we followed the injunction to the letter. By speaking our mind and encouraging others to do what we alone were forbidden from doing, we are somehow in the wrong. How is this even relevant to the law? Are people who believe in certain things or associate with certain people to be treated differently? In Judge Kaplan's mind, we "are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located." This is, to say the least, insulting and just plain wrong. I challenge him to find a single instance where we have ever supported piracy or accessing private information. These ignorant generalizations sound more like the work of Jack Valenti's ghost writer.
What too many people don't seem to realize is that the rules have changed overnight and it WILL affect them. Imagine not being allowed to lend a book to a friend. Imagine not being able to play music that you bought in another country. Imagine only being able to watch "approved" content on your DVD player. And just wait until HDTV comes around and makes it impossible to record anything unless you pay. These are all natural extensions of the existing restrictions and they are all now perfectly legal. You've lost the right of "fair use" with copyrighted material that you think you own. In actuality, you've just bought a license to do what they tell you.
So, after all is said and done, I have to echo what all of the legal experts have said so far: I'm not at all surprised. This is how we expected the first round to go. It's now time to focus on the Appellate Court and eventually, since whoever loses next will most likely appeal, the Supreme Court.
Everyone is asking what will happen to us and how they can help. Well, we were pretty fortunate that Judge Kaplan didn't choose to hit us with the MPAA's legal bill, like they wanted him to. Their legal fees are believed to be in excess of $4 million so that definitely would have caused a delay in the next issue. It should also make it pretty clear that the MPAA has no qualms about utterly destroying anyone who gets in their way. And it should also make it clear how important we think this is that we would risk such a thing. And ironic that none of us even HAS a DVD player.
We're also extremely fortunate that the Electronic Frontier Foundation was around to fund our defense. If anything has proven the value of the EFF in looking after civil liberties in the modern age, this has. I can't emphasize enough the importance of heading over to http://www.eff.org/support/joineff.html (I'm actually afraid to make a link now) and donating as much as you possibly can to keep this case going. Explain this to as many people as possible and get them to do the same.
If there's anything good to come out of this decision, it's that we'll get to continue working with our legal team who have been absolutely amazing from the start. I've never seen a group of people so dedicated to learning and understanding the facts. It's a real honor to be among them and it's really changed the way I look at the entire legal profession.
As for what you can do to help, apart from the above, that's really up to you as it's always been. If you believe DeCSS is a form of speech, a means of access for alternative operating systems, or a necessary step towards "fair use" of digital media, then spreading it throughout the world is extremely important for the preservation of those freedoms. If you're in the United States, be aware of the risk you are taking. And if you're one of those people who really buys into the MPAA notion that DeCSS is a tool of piracy, please DON'T do the above because you're missing the entire point.
We can no longer post DeCSS on our site nor can we link to it. We still have the right to list those sites that have it in non-linkable form and we also have the right to speak out against the injustice we're being hit with. The MPAA would like those rights taken away as well. We cannot allow them to succeed.
There will be further leafleting campaigns in the weeks ahead. Keep checking this web site for details. And please let us know your opinions - firstname.lastname@example.org. We would give out an address for the MPAA but they've been blocking e-mail for some time and blaming hackers for every problem they have. So give them a call at (818) 995-6600 from 9 am to 5:30 pm Pacific Time. Be civil but make sure you get your point across. After all, where do you think that $4 million ultimately comes from?