By DAVID P. HAMILTON
Staff Reporter of THE WALL STREET JOURNAL
If disseminating a software code violates federal copyright law, does the First Amendment allow that code to be published in a poem or sung in a song? Critics of a sweeping court ruling may soon find out.
Ever since the software code, known as DeCSS, first showed up on the Internet about two years ago, Hollywood has feared that the Napsterization of movies was at hand. After all, the software program can break the encryption code protecting DVD movies from being copied. To block online sharing of DeCSS, the movie industry sued. Last August, U.S. District Judge Lewis Kaplan, citing federal copyright law, banned a hacker Web site called 2600.com from posting DeCSS or even linking to other sites that posted it.
But programmers and civil libertarians argue that software code deserves the same First Amendment protection as any other work of art. To underscore that point, a world-wide cabal of protesters is turning the code into a variety of artistic works that, they say, are indistinguishable from any other protected expression.
In February, for instance, a computer programmer lodged his complaint against Hollywood and the legal system with an epic poem -- 456 stanzas of haiku, no less -- that makes an impassioned argument for the free expression of mathematical ideas. The poem, replete with references to Homeric epics and the history of mathematics, also contains a detailed explanation of the DeCSS algorithm.
"A program is a literary work," says the work's author. "The idea was to show how strange and difficult it is to classify computer programs and technical information as something other than speech."
David Touretzky, a computer-science professor at Carnegie Mellon University, has compiled a Web-based gallery that displays the critics' contributions to the cause. Samuel Hocevar, an engineering student in France, made a digital movie in which the DeCSS code scrolls off into space much like the introduction to "Star Wars." Two other programmers refined a way to transform the DeCSS code directly into music by assigning each letter, number and symbol its own musical note, with results that sound a bit like Philip Glass on acid.
DeCSS has inspired such passion because it has become a flashpoint in the war over the control of digital media. On one side stands Hollywood, which assumed that locking up DVD movies with sophisticated encryption codes would thwart piracy. On the other side are individual users, some doubtless eager to obtain pirated movies but others including civil libertarians who believe the movie industry's efforts could stifle encryption research.
By stripping away the encrypted copy protection on a disk, DeCSS makes it possible for users to treat DVD movies like any other digital file. When compressed by a second program called DivX, the movies can even be distributed over the Internet -- a potential nightmare for Hollywood. That scenario is one reason the movie industry lobbied heavily for copyright-law changes that made it illegal to defeat copy protection with decryption "devices," a provision that played a large role in Judge Kaplan's ruling.
But libertarian-minded hackers argue that the DeCSS case isn't so much about the threat of piracy as about Hollywood's desire to dictate how its movies are distributed and viewed. Decoded DVD movies, for instance, no longer bear the "regional coding" designed to protect Hollywood's international film-release schedules by preventing non-U.S. viewers from playing U.S.-released DVDs. Some legal scholars also believe that the copy-protection provisions of copyright law are overly broad and possibly unconstitutional.
The fight over DeCSS goes to the heart of an emerging conundrum in free-speech and intellectual-property law. Software code, after all, is just a representation of mathematical ideas that can range from simple addition and subtraction to complex functions that paint graphics on computer screens, simulate weather patterns and decipher encryption systems, such as Hollywood's Content Scramble System (from which DeCSS took its name).
Like other ideas, these mathematical notions can be translated into and out of different specialized languages, from "high level" computer languages, such as C, Java and Perl, to the binary ones and zeroes in programs that computers can execute directly. Such ideas can even be described in plain English.
The DeCSS poem not only outlines the algorithm but includes six lengthy arrays of numbers used to help simplify the decryption calculation, all without breaking the syllabic 5-7-5 haiku form. At one point, the poem cites a six-digit "player key," a kind of master key to the CSS algorithm that Hollywood considers proprietary:
"So this number is,Few average readers of the haiku would find it much help in breaking DVD encryption, but turning the poem back into software code wouldn't be difficult for most programmers. A sufficiently devoted hacker, in fact, might even automate the process by writing a program specifically designed to turn the DeCSS haiku back into a functioning program, further blurring the distinction between speech and code.
once again, the player key:
(trade secret haiku?)
"Eighty-one; and then
one hundred three -- two times; then
two hundred (less three)
two hundred twenty
four; and last (of course not least)
the humble zero."
Judge Kaplan explicitly rejected the free-speech arguments made for DeCSS, noting that because the code is "functional" it can be regulated more strictly than other forms of expression. His ruling is now on appeal, and civil libertarians hope the constitutional argument will be more effective before the appellate court.
If Judge Kaplan's ruling is upheld, the consequences for the DeCSS code won't necessarily be clear. Legal scholars such as Yochai Benkler of New York University suggest that higher courts may uphold a ban on the executable form of the program, which can actually decrypt DVDs, but not its underlying software code or artistic works that incorporate it.
Hollywood, itself a big beneficiary of First Amendment freedoms, seems to take a similar position. "The fact is that many of the things Prof. Touretzky is talking about don't present the same kind of harm to content owners that the [executable DeCSS] utility does," says Charles Sims, who represented the movie studios before Judge Kaplan. The DeCSS haiku, he adds, "is not the sort of thing that content companies would spend money pursuing."
That seemingly reasonable compromise might not be the last word. Were a Web site to host any of the nonexecutable DeCSS works along with a simple program that converted them back into a functioning decryption program, the effect would be virtually identical to hosting the DeCSS program.
"If one is to be consistent, you have to ban the haiku," says Jonathan Zittrain, a Harvard University law professor sympathetic to the First Amendment argument for DeCSS. By Judge Kaplan's analysis, he says, "the underlying illegality is still illegal" no matter what form the code is in.
The Many Faces of DeCSS
Write to David P. Hamilton at email@example.com.
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