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The Editor's Spin: Courting DMCA
Posted Jun 1, 2002 Print Version     Page 1of 1
  

June 2002|Most American adults carry around shorthand appellations for a few of our most historically notable court cases among the disparate cultural and personal minutia in our brains: Roe v. Wade, Plessy v. Ferguson, Brown v. Board of Education, Bakke v. Board of Regents. Most of us have strong associations to go with them: Roe, abortion; Plessy, segregation; Brown, desegregation; Bakke, affirmative action.

But as clear as our associations with these cases may be, few of us really know much of anything about their particulars. And who knows how we'd feel about them if we did? Take Homer Plessy, whose case led the Supreme Court to adopt the "separate but equal" doctrine at the heart of segregation. Plessy, a seven-eighths-white Creole shoemaker jailed in 1892 for sitting in the "white" section of a Louisiana train, essentially stepped into the history of the black race by trying to avoid its company.

Probably the strangest picture painted by any of these cases is Bakke v. Board of Regents, the 1978 case that helped propel the affirmative action and civil rights rollback of the 1980s. The case began when UC Davis Medical School denied admittance to a white man named Allan Bakke. Bakke cried foul, claiming that new "special admissions" rules that set aside 16 percent of the matriculating class for black students had unconstitutionally kept him out. Davis Medical School, a new institution with no historical record of discrimination against blacks, was unrepresentative of professional schools initiating similar practices, and thus an inapt gauge of those practices' constitutionality. But the case reached the Supreme Court and won, received mealy-mouthed approval from President Carter, and helped turn the tide of public opinion against affirmative action.

I'm reminded of these test-case grotesques at the tail end of Copyright Awareness Week, which came off at least a little better than 1965's inaugural National Brotherhood Week (Malcolm X was assassinated that Sunday). This week may have yielded a winner in the DVD/DMCA (Digital Millennium Copyright Act) test-case challenge, a case so much more concerned with legal loopholes than technology it was probably invented by lawyers. DVD copying first locked horns with DMCA in late 1999 when a loose affiliation of European Linux programmers cracked DVD's Content Scrambling System (CSS) so they could play DVD movies on their Linux systems. What raised copyright protection hackles was DeCSS' posting on Web sites, which allegedly enabled its widespread use for DVD piracy.

If the only pertinent issue at hand were piracy, it would have been an open and shut case. But because DeCSS had so many other gray-area uses in the private appropriation of content the user has purchased—arguably, "Fair Use" as defined everywhere but the DMCA—the issue has remained unresolved, with lots of blows traded but no knockout punch to date.

Enter 321 Studios, a St. Louis-based software company and purveyor of an apparent DeCSS derivative, DVD Copy Plus. The software, introduced in July 2001, enables users to convert their DVDs to VCD format and record them to one or more CD-Rs. On Monday, April 22, 321 Studios filed a complaint in a California district court against nine major motion picture companies who have attempted to prohibit the software's sale.

Like Bakke v. Board of Regents, 321 v. shows the seams rather than substance of a challenge to the law. What DeCSS' creators had going for them was that they didn't do it for profit. Of course they knew how their creation could be used; but DeCSS hardly has the "we're all bastards now" implications of, say, Nobel inventing dynamite or Oppenheimer splitting the atom.

That said, some of us are bastards now—particularly, those of us who contribute nothing new to the world and blatantly distribute DeCSS derivatives for profit, or sell software of comparable capability while blithely insisting (like the folks at 321) that we don't even know what's in our own products.

It's anybody's guess at this point whether we'll all end up holding our noses and admitting "321 v." to our legal lexicon. But there are bigger issues at hand involving emerging technologies and alleged circumscriptions of Fair Use. Copyright Awareness Week also saw Philips North America CEO Lawrence Blanford testifying quite eloquently before a House committee on telecommunications and the Internet on legislation for controlling the future use of HDTV broadcasts. The legislation supports technology that can effectively disable a device that is recording a movie or other program in a consumer's home to prevent that movie or program's eventual re-distribution via the Internet. What's more, that invasive capability currently rests in the hands of a small group of private interests—major movie studios (including Fox, who proposed it) and five technology companies calling themselves "5C." Clearly, Blanford has its own private stake in the matter: the new legislation jeopardizes future adoption of Philips' set-top DVD recorders.

Is this a rarer-than-many-would-claim intersection of consumer interest and civil liberties? Does it even matter in a society where "the pursuit of happiness" is a decorative way of saying "property?" Either way, it's a problem, potentially reversing another landmark court decision, the 1984 Universal v. Sony case that upheld time-shifting home-taping and paved the way for much of the technology development since. As such, the 5C license contradicts at least half the spirit of the original copyright law: "to promote the Progress of Science and the useful Arts."

And this is why, given the current stalemate, Blanford says he's asking Congress to step in and "cleanse" the process "in the sunlight of government." Of course, in recent years, government has proven itself no more inclined than industry watchdogs like the MPAA and RIAA to acclimate its thinking to the way technology is changing their world, rather than simply scrambling for damage control, so it's hard to imagine how their intervention might help. But here's hoping that this time they listen before they cleanse.

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