DVD Case: Speaking in Code

Computer scientist fears "chilling effect" of banning postings

BYLINE: Ian Mohr

DATELINE: New York, July 26, 2000.

Calling the testimony of a final defense witness "illuminating and important," federal Judge Lewis Kaplan heard perhaps the most complex argument in the MPAA's suit against an accused hacker it says trafficked the code that decrypts DVDs.

Carnegie Mellon University computer science professor David Touretzky told the court that computer code is a form of speech and is protected under the First Amendment.

Testimony in the case wrapped Tuesday, almost a week earlier than expected. Both sides have until Aug. 8 to submit briefs to Kaplan, who will set a hearing date for closing arguments before handling down a ruling from "two weeks to two months" later, a trial insider said.

The MPAA representing Univeral Pictures, the Walt Disney Co., Fox, Paramount, MGM, Time Warner Entertainment and Sony Pictures Entertainment is seeking a permanent injunction against Eric Corley's 2600.com Web site for posting links to sites that offer downloads of the DVD decryption formula DeCSS.

Touretzky told the court that making public postings of the DeCSS code illegal would have a "chilling effect" on his work as a computer scientist because he communicates through the language of computer code in his research.

"If certain use of coputer language would become illegal, anything I do from now on has the potential to become illegal," Touretzky said. "Simply by expressing myself that way, I could be exposing myself to liability. I'd be afraid to publish (certain projects)."

To prove his point, Touretzky restructured the DeCSS algorithm into various forms of "speech": written instructions on how to perform the mathematical equation, a picture of what the equation might look like as a "bit-map" and into a computer language he himself invented.

Touretzky's testimony obviously moved Kaplan, who hinted at an upcoming difficult decision of whether an injunction against 2600.com would do any good since DeCSS is so widely available and whether the free speech issue will stand up.

"I was hoping we were going to hear something like this through the whole trial," Kaplan said after Touretzky's testimony.

"(I must determine) what, if anything, can I do if I conclude that this horse is out of the barn already and to what extent I decide that decoded DVDs are actually available over and through the Internet," Kaplan said. "I really find what professor Touretzky had to say today extremely persuasive. How do you deal with it under the First Amendment?"

Whichever way Kaplan rules, the case is far from over. Defense lawyer Robin Gross said the losing party was almost certain to appeal.

Gross estimated that the verdict would come from appellate courts "sometime next year."

Dave Touretzky
Last modified: Tue Aug 8 20:43:39 EDT 2000