CODE WORDS: COURTROOM DRAMA by Paul Sweeting (psweeting@cahners.com) AUG. 7, 2000--Real-life trials are rarely like Perry Mason episodes. They're usually highly scripted and fairly dull affairs, especially civil trials, in which the substance of the testimony is known to both sides in advance. Rarely does the testimony of any single witness dramatically alter the outcome. However, the final day of testimony in the ongoing DVD hacker case in New York pitting Eric Corley against the MPAA produced something close to a Perry Mason moment, when computer scientist David Touretzky of Carnegie Mellon University gave an elegant demonstration of the difficulty any court is going to have in resolving the dispute at the heart of this case. The defense has argued, in part, that the computer source code that describes the DeCSS utility is a form of speech and that posting it on a Web site ought to be protected by the First Amendment. Until now, the judge in the case, Federal District Court judge Lewis Kaplan, has shown little sympathy for that position and little patience with the defense's argument. In the preliminary injunction Kaplan issued in January, he ordered Corley to remove all forms of the DeCSS decryption code from his 2600.com Web site. His only concession to the First Amendment was to permit comments about DeCSS, in English, on the site's discussion board. Yet through a series of exhibits taken from his own Web site, Touretzky was able to demonstrate that to a computer scientist, there is no functional difference between the DeCSS source code, object code or even the binary code of ones and zeros the computer actually reads and an English-language description of what the code does. Anyone with an undergraduate computer major's knowledge of programming, he claimed, could easily reconstruct a functionally equivalent version of the DeCSS source code simply by reading an English-language description of what it does. If the court's aim is to effectively ban DeCSS, therefore, it would have to extend the injunction to cover a type of speech that would be unambiguously protected by the First Amendment, whether DeCSS is ultimately ruled illegal or not. Moreover, if there's functionally no difference between expressing something in English and expressing it as computer source code, then perhaps no constitutional distinction can be made between them either. Previously, the judge dismissed the view that computer source code should qualify as protected speech under the First Amendment, calling it "no more expressive than an automobile ignition key." But after Touretzky's testimony, Kaplan said he was persuaded to reconsider his constitutional analysis of the case. It would be difficult to claim "that computer code of any kind has no expressive content," he said from the bench. "Which then gets you to the question of how then do you deal with it under the First Amendment?" Until Touretzky appeared, even the defense attorneys were expecting Kaplan to rule in favor of the studios. By closing off most of the defense's efforts to raise broad constitutional objections, he steered the case along fairly narrow copyright infringement grounds. And under the Digital Millennium Copyright Act, DeCSS is clearly vulnerable to a claim of copyright infringement. The judge's last-minute reconsideration of the defense's claims may still not be enough to alter the likely outcome of the trial, but at the very least, it provides the defense with ample grounds for appeal should the judge rule against them in this phase of the case. That raises the stakes for the studios considerably. As the music industry has discovered, digital technology moves quickly, raising novel challenges to copyright almost as fast as copyright owners can sue to stop them. As the first major test of the Digital Millennium Copyright Act, the studios hope the DeCSS case would provide a clear vindication of a powerful new tool in the battle to protect copyrights from digital infringement. The last thing they need is for the case to become subject to a searching constitutional analysis that could ultimately lead to part or all of the new law being invalidated by the courts. The case has a long way to go before it could reach that point. Final briefs were set for Aug. 8, and then the judge must rule. But as Kaplan--a judge clearly sympathetic to copyright interests--has already acknowledged, crafting a response to DeCSS that effectively enforces the law without running afoul of the First Amendment will not be a simple matter.