Digital copyright battle hots up

The battle between copyright holders and free speech advocates is hotting up in the US, with the decision by a US federal appeals court at the end of November that the publication of DVD decryption technology constituted a breach of the Digital Millennium Copyright Act 1998.

The battle between copyright holders and free speech advocates is hotting up in the US, with the decision by a US federal appeals court at the end of November that the publication of DVD decryption technology constituted a breach of the Digital Millennium Copyright Act 1998.

Motion pictures stored on DVDs are protected from unauthorised use by means of encryption using a “content scramble system” (CSS). CSS was developed by the DVD market to protect the copyrights of the entertainment industry. CSS is designed to restrict the playback of an encrypted (scrambled) DVD to a CSS-equipped DVD player or DVD drive, which is capable of decrypting (unscrambling) the DVD. CSS is primarily composed of algorithms and 400 “master keys”.

The DVD Copy Control Association licenses the CSS software to hundreds of hardware and software makers of DVDs and players.

In October 1999 a 15-year-old boy in Norway developed a computer program called DeCSS and posted it on the internet. DeCSS contains computer source code that describes a method for playing an encrypted DVD on a non-CSS-equipped DVD player or drive. The code was subsequently published or linked to on websites around the world. A number of lawsuits have followed.

In DVD Copy Control Association v Bunner, a California state appellate court reversed a preliminary injunction imposed by a lower court that prohibited the posting of computer source code for DVD decryption technology on the internet.

The injunction previously granted prevented Bunner and numerous others from publishing “or otherwise disclosing or distributing, on their web sites or elsewhere, the DeCSS program, the master keys or algorithms of the CSS or any information derived from this proprietary information”. The injunction was based on arguments from DVD Copy Control Association that Bunner and others, by either publishing or linking to the DeCSS on their websites, were distributing confidential proprietary information in breach of California’s Uniform Trade Secrets Act.

The court held that the preliminary injunction violated the First Amendment as a restraint on speech. In overturning the injunction, the court ruled that: “like the CSS decryption software, DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSS-encrypted DVDs. Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about decryption of DVDs without CSS. […] Thus, we conclude that the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterised as a prohibition of 'pure' speech."

However, the latest case (Motion Picture Association of America v 2600), which, as noted above, was under the Digital Millennium Copyright Act, rejected the use of free speech arguments in this way. The court found that, while computer code is speech and therefore entitled to some First Amendment protections under the US constitution, the material in the case was "content-neutral" and therefore entitled to considerably less protection than "expressive" content such as poetry or a novel. A injunction was granted.

The same battle is likely to surface here in New Zealand, with submissions on the Digital Technology and the Copyright Act 1994 discussion paper being currently considered by the Ministry of Economic Development. It has been reported that Microsoft has proposed that anyone providing the means for circumvention of anti-piracy measures, or anyone actually circumventing them, should be subject to civil and criminal sanctions. It is likely that free speech and consumer-oriented organisations will oppose such laws or propose limitations designed to uphold so-called fair use rights.

Copyright, and other forms of intellectual property rights such as patents, involves the balancing of two fundamental social drivers.

The first is to provide an environment in which there is an incentive for people to apply their creative skills and knowledge so as to create new knowledge and artistic creations. Copyright provides the creator with an ability to profit from their intellectual or artistic effort, by prohibiting others from copying the work in question.

The conflicting driver is not to create an environment in which the flow of knowledge within a society is unduly stifled. One method in which this is done is by imposing time limits on the life of intellectual property rights (as is done with both patents and copyright). In the copyright area, balancing is also carried out through the concept of rights of "fair use", for example, commentary and educational uses.

The introduction of strict anti-circumvention rules could prohibit the use of copy-protected material in situations where the intended use of the material would otherwise fall within fair use exceptions. In TechLaw’s view, this would undermine the existing permitted uses already provided in the Copyright Act 1994.

Accordingly, due caution must be exercised in the introduction of any new legislation to ensure the balance between the rights of the users and the copyright owners is maintained.

Averill Parkinson is a partner and Charlotte Walton a solicitor in Clendon Feeney’s technology law team. This article, together with further background comments and links to other web sites, can be downloaded from www.clendons.co.nz. Questions and comments are welcome to Averill Parkinson.

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