We can't say we're surprised by this latest move of the Motion Picture
Association of America. We knew that removing the DeCSS code from
our site wouldn't satisfy them. In fact, nothing we or anybody else
can do will be enough because, quite frankly, their expectations are
impossible. You cannot silence the entire Internet yet this is
precisely what the eight motion picture studios led by the MPAA apparently
aim to do.
We still believe that we have the right to post the DeCSS code on our
site. However, because of the injunction in place against us, we took it
down. We intend to continue to fight this ruling because we,
and many many others, find it to be unconstitutional. Despite this,
we have obeyed the injunction to the letter. It is NOT illegal to say
this, it is NOT illegal to encourage people to spread information, and
it is NOT illegal to tell people where that information can be found.
It is understood that those who choose to put the DeCSS code on their
sites may be putting themselves at risk but this is something that
every individual must decide on their own. We encourage compliance
with injunctions once they are granted only because nothing is served
from being locked away for contempt of court. But we DON'T encourage
people to stop fighting in whatever way they can.
Our compliance with the injunction is no longer the issue. The MPAA would
like for us to completely stop talking about DeCSS and will use their
deep pockets to make such a thing happen. They honestly believe that they
can force us to not only remove information from our own site but prevent
us from encouraging others to continue providing it. The first step was
taken Wednesday when an injunction was filed to forbid us from linking to
other sites that had the offending code. Imagine, being told what sites
you're allowed to link to! Clearly, these people have no understanding
of, and very little respect for, the Internet and how it works. They also
have decided to engage in character assasination, referring to 2600
editor Emmanuel Goldstein as someone who is violating federal law and who
is the equivalent of an accomplice to burglary.
If this injunction is granted, a very dangerous precedent will have been
set. If you link to a site, you could actually be held legally
accountable for everything on that site. The net will cease to be a
clearinghouse of information and liability will become everyone's primary
concern. It's a world the MPAA no doubt would feel very comfortable in
but it's in striking contrast to the world of the net, where information
is free and communication is encouraged.
The real world analogies are equally troubling. Handing someone a
book or magazine could make you liable for anything that person does with
the information they find inside it, even if the information itself is
completely legitimate.
Let's look at a couple of key quotes in the injunction.
"'CSS' means the Contents Scramble System used to encrypt, scramble or
otherwise protect the contents of certain DVDs from unauthorized access
or copying."
"'DeCSS' means any computer program, file or device that
may be used to decrypt or unscramble the contents of DVDs that are
protected, or otherwise to circumvent the protection afforded, by CSS and
that permits the unauthorized access or copying of the contents or any
portion thereof."
What's significant in both of these definitions is the addition of "unauthorized access." Previously, the only issue was copying. Since the MPAA has been screaming about piracy from day one, it now seems as if they are slowly admitting that this case is really about access control. The thing is, it's very unlikely they ever would have gotten this far if they had said this from the beginning. Controlling how people play the DVDs that they've already purchased is not something most individuals will agree to. We know this based on the reactions of the many people we've handed out pamphlets to worldwide. Pirating DVDs is not something we or most people we've talked to support. But does a person have the right to play a DVD that they have purchased in the player of their choice? Do they have the right to view that DVD in another country or buy a foreign DVD like they would an imported CD? Does this person have the right to skip over the advertisements at the beginning of a DVD if they so choose? The MPAA says no to every one of those questions. Yet we find that, almost unanimously, people reject the idea of access control. If the MPAA had made it clear that this was what
the whole case was about, they would have had a very difficult time getting this far.
But the sad fact is that they did get this far. And now we are left to
fight back and prevent them from imposing their will and their controls
on our daily lives.
It doesn't take a whole lot of imagination to see the road we're going
down. First it was declared illegal to pirate various forms of media and
very few people had a problem with this. Then it became illegal to break
copyright protection since you could then use that to make pirated copies
of various forms of media. Then it became illegal to possess tools that
could enable you to break copyright protection which could then be used
to make pirated copies of various forms of media. And now it could become
illegal to tell people where they can go to get the tools that could
enable you to break copyright protection which could then be used to make
pirated copies of various forms of media. And now these laws are being
used to stifle speech that has nothing to do with copying or piracy in
the first place. We're only a couple of phrases away from this entire
paragraph being illegal.
Ironically, and this is no exception, every time the MPAA moves against
us, a phenomenal number of new sites pop up before we can say a word. In
many ways, the MPAA has ensured the spread of DeCSS far more than we ever
could have if they hadn't taken action against us. They can win, shut us
down, and put us out of business but what will have been accomplished?
DeCSS will be plastered on the walls of bathrooms worldwide and the MPAA
will be more hated than many fascist dictatorships. Freedom of speech
will, as always, win in the end. The only thing that we're not sure of is
what the cost will be.
Proposed amended complaint [HTML] [PDF] 724K
Brief on motion to expand preliminary injunction [HTML] [PDF] 1.3M
Notice of motion [HTML] [PDF] 874K
Supplemental affidavis of Schumann and Boyden [HTML] [HTML] [PDF] 938K
Exhibits A - V [PDF] 4.2M
WHY PIRACY IS NOT THE ISSUE
The law we are being sued under, known as the Digital Millenium Copyright Act (DMCA), makes it illegal to circumvent any copy protection scheme, or to distribute circumvention tools. It makes no distinction between creating legal copies that don't infringe on copyrights and illegal or pirated copies. In order to try to stop people from using DeCSS to play movies, the MPAA has claimed that it circumvents their copy protection scheme called Contents Scrammbling System (CSS). But in reality, CSS is used to control playback - not copying. All DVD players (including DeCSS) must first decrypt the DVD movie before it can be played. When you use a standalone DVD player, all the decryption occurs behind the scenes before it is sent out to your television or VCR to be viewed or transferred. Once that happens, it can be played just like a videotape.
When you use software to play a DVD on your computer, the DVD is decrypted and copied temporarily into memory as it is sent through your video card and out to your display. DeCSS is the portion of a Linux DVD player that handles the decryption process. CSS no more prevents the copying of a DVD than the plastic case a DVD comes in. Sure, you can't copy a DVD if you don't open the case - but you can't play it either. Clearly this lawsuit has nothing to do with piracy, as you don't even need to decrypt a DVD to duplicate it bit-for-bit, as is done for the massive DVD piracy that occurs throughout much of Asia.
