The battle's theme is the computer program known as DeCSS, written and distributed by Jon Johansen (foto). Jon and his father are being prosecuted in Norway by a proxy to MPAA (Motion Pictures Association of America), charged with committing economic and/or environmental crimes. People in charge of US sites that have distributed the program via web are also being prosecuted, accused of violating terms of the new copyright law now in effect in the US the recently sanctioned DMCA (Digital Millennium Copyright Act). These are the facts, around which versions are rolled. One of these versions I saw on brazilian TV (Jornal da Globo) on march 27, 2000. The reporter seemed to be merely editing and translating a previous report done in english, with no reference to the correctness or even the possibility of any other version.

These reports on DeCSS (the one I saw didn't even mentioned the program's name) are happening in a worrisome scale on the global media, in a dangerous allusion to two -- perhaps prophetic -- literary fictions, of Kafka and of Orwell. Having said that, I need to point that I am in no position to pass judgment on intentions or commitments of those responsible for one-sided reports on DeCSS, herein declaring my intent of not doing so here. My comments are based solely on logical deductions from factual technical data, obtained from public domain.

DeCSS is a decoder for high level drivers for DVD (Digital Video Disk) players, distributed in source code. The MPAA, which distributes member's movies on DVDs, has contracted the most expensive law firm in New York to prosecute those who wrote or distributed DeCSS. Its lawyers have been competently engaged in convincing officials that DMCA violates articles in DMCA that protect copyrights of artistic productions. The author and distributors, on the other hand, maintain that  DeCSS is a reverse engineered product designed for interoperability of DVD devices, for fair use purposes, which would be permitted by DMCA.

DeCSS is not used, nor is necessary, to copy DVDs. Neither for one, nor for several copies. It does not facilitate, nor "permits" them. Opposite illations are given in the court proceedings, and on several media reports on the subject. And they are all completely false. DeCSS decrypts and reformats DVD content. I can translate this article into Portuguese while I read, without copying it. I can copy it in english regardless of translation, or copy it in portughese thereafter. Therefore, any computer with a proper DVD device and an operating system able to control it can copy DVDs. Either in the media format, or in the visualization format of the operating system. For example, any PC with a DVD player equipped with Windows and a driver licensed by the MPAA to manipulate its "scrambling system" (CSS), or with Linux and DeCSS, permits copying in both formats.

A copy in operating system's visualization format is useless to piracy. A copy on the same media costs around US$ 50.00 (almost five times the price of an original DVD), which are good reasons for no one being involved in DVD pirating today. Maybe that is why no one has, as far as I know, presented an illegally copied DVD, either as evidence in court or in media reports. (the brazilian reporter appeared with a laptop and an apparent original DVD), as evidence of crime.  Jon, as these reports accuse, is not a ciberpirate because of DeCSS, which he wrote hacking the algorithms and protocol of CSS. Hacking is scrutinizing, which is quite different than pirating.

DeCSS decodes CSS formatted DVD content, for visualization under the operating system to which it has been compiled. So it does, independently of how the DVD has been copied. The DeCSS has been used in the alleged intended context, which is, for the private viewing of legally acquired DVDs, on computers controlled by the Linux operating system. In this case it would be, according to defense lawyers, covered by the fair use doctrine. But since DeCSS is free software, (distributed in source code), it has been adapted for other operating systems, increasing the chance of misinformation succeeding as fact.

 Accusations that DeCSS permits illegal copying in the system's format are vacuous and frivolous, since such permission can not be granted by the driver, for involving some resource out of its reach, but by the operating system, which controls both. This is like accusing someone of permitting his bank to be robbed, for having deposited money in it. This misinformation is part of the scenario planted by MPAA lawyers, prone to influence, through the media circus, judges and the public which are uncomfortable with technicalities. As the media feeds on itself, the version may become the fact, as seem to want the MPAA president and lawyers.

But after all, why so much capitalist fury over DeCSS? In another version the answer is clear. Because DeCSS is free software, designed for free software platforms. The motivation behind it is not piracy or bargaining, as its detractors and those that fear it mumble (those who preach automatic association between virtual prowess and bad faith). Its philosophy is freedom, specially the freedom of choice in the inter mediation of our own intelligence. Its strength is in cooperation. Despite the fact that protocols making up today's internet (TCP/IP, SMTP, HTTP, etc.) had been born within its movement, free software is today a hindrance to the business model of many big companies, including Hollywood studios.

MPAA licenses CSS for fees not known  (the licensee pays for being allowed to write CSS formatted DVD drivers). In this format, DVDs contain  recorded an encrypted representation of some production, and also of the decrypting key for this representation (session key). Each license gives to the driver developer a master key for accessing session keys. The hack in DeCSS consists of indirectly obtaining access to session keys through cryptoanalisys. Key distribution is the most complicated part of any cryptographic project, and to include it in cryptogram distribution without adequate safeguards is a gross blunder, committed only by those not in the field -- perhaps the most difficult and challenging field of computer science -- who adventure in it.

CSS also restricts the decryption step according to the geographic area of DVD player purchase. Preferring astuteness to prudence for evolving its business model, MPAA members wish to profit three times where before they profit once: in distribution, in geographic price fixing and in licensing access software. They want us to believe, through manipulations, intimidations and FUD, that this crushing of consumer rights signifies copyright protection and piracy fighting. As if software functionality is to be determined by its name, and not vice versa.

MPAA has "cooperated" with legislators for the approval of DCMA as it now stands, but its constitutionality can now be tested. Technically, CSS is only a protocol that attempts to apply cryptography to tie in the usefulness of two distinct products, the DVD content and the DVD player driver. By the anti-monopoly legislation of the US (Sherman's Act) this mechanism would characterize, in any sensible interpretation, monopolistic practice due to the tie in. DeCSS indeed subverts this monopoly scheme, giving back to consumers the right to choose in which machine to view his legally acquired DVD movie. A right they enjoyed prior to the advent of DVD media. Why would this be a crime with this media?

Again, the answer becomes obvious if the question is looked upon from a different angle, and if we assume that MPAA lawyers really believe in what they are saying. Lawyers are not cryptologists, and a project flaw in CSS -- even more fundamental and dramatic than the choice of algorithms and protocol -- may have been committed by MPAA, on assuming that cryptography can protect against illegal copying. It can not, for the same reasons that the river does not run towards the fountain and the shadow does not detach from the body. Cryptography is totally innocuous against unwarranted replication of syntactic content, although it may offer protection against unwarranted access to semantic content.

This folly would have been yet another case of unhappy  fascination with technology -- an epidemic spread by the digital revolution --, where in this case the prescribed treatment has been casuistic legislation, more casuistic legal argumentation, censorship, and lots of money. As Orwell predicted, these gentleman would be engaged in refuting the laws of nature regarding information, discovered by Claude Shannon in 1948. They would have a go, if they convince judges and jurors that a binary format is, per se, a proprietary mechanism protecting intellectual property. Is Kafka alive among us?

Jon Johansen, as Linus Tovalds, is a pinguinista (developer of free software for Linux). As such he values freedom above and beyond hardships and threats. From the top of his age of 16 he did not capitulate to Hollywood's boycott of those who insist on knowing, choosing and controlling software. He is not willing to accept passively the imposition of alien laws that forbid us to open the hood of machines we buy, nor to be herded into periodically buying, to have them working, licenses to use programs of ever increasing complexity, obscurity, defectiveness and deceiveness, only because that's the way to keep the cash flow of those who see themselves owning the world. He is paying a high price for his choices and coherence, and his defense is mobilizing, as never seen before, volunteers among jurists in the academic scene and practice fora. (see http://eon.law.harvard.edu/openlaw/DVD).

Johansen may be a hero to those who love freedom, and hasty attempts to portray him as an outlaw will serve to value his courage and consolidate his dignity. According to MPAA's interpretation of DMCA, we would be today, all of us, prohibited of discussing whether or not CSS is a copyright protection mechanism, or even how it may or may not work. (see http://www.opendvd.org). Those who side with free software need not be against copyright protection. On the contrary. One of my academic works, for example, applies cryptography to de facto possible protection of copyrights: in digital watermarks that identify replications of electronically distributed samples of intellectual work. In case MPAA lawyers decide to search for loopholes in the international treaties that Brazil signed, to extend DMCA's jurisdiction to prosecute me for "crimes against Copyright", as done in Norway, my arguments will be then even more substantiated. Or we would have returned to Medieval ages.

If all this smells like "1984" of George Orwell, we have seen nothing yet. Let's wait until the movement for more power by the proprietary software industry (Microsoft, AOL, IBM, etc.) begin to bear fruit. When contemplating the awakening of big brother, reading informative journalism (not entertaining journalism) about UCITA (Unified Computer Information Transactions Act), we will begin to realize that democracy's anti monopolist zeal may be turned into mere child's play: imagine this same discussion -- but now with legalized software backdoors -- around the issue of access to databases, financial records, text or html files, etc., (i.e.: www.cnn.com/2000/TECH/computing/03/07/ucita.idg/index.html). In this digital revolution, the pinguinistas are surrounded, in a fierce guerrilla war fought in the semantic terrain of cyberspace, where the weapons are the meanings of money and freedom.

If, to a journalist, the world seems each day more complex, he must stay ever so more alert. He must beware of mermaid songs, because his work is ever so more important to human freedom, since many use his product to build naive reality filters. The freedom of the markets needs to be demystified, for it is the freedom of the people that ultimately matters. The freedom to seek after truth, but not any truth. That truth which only echoes our frightened expectations, ever so more enslaved by the complexities built by ourselves in our fumbling human quest for security through the times, is not good enough. In this turbulent time, the kind of truth we shall value is that which speaks to the heart. Even knowing that one may not find it, or may not recognize it, and that one will certainly err, the right to this search is the most noble of hopes and the most sacred of rights of men.

To the reader, a cautionary note: one of these errors may be, precisely, that of taking the freedom of the markets as our own.

• The Sentence

 'DVD Jon' scores huge legal victory

A Norwegian teenager who helped crack a code meant to protect the content of DVDs won full backing from an Oslo court on Tuesday. The court acquitted him on all charges, a ruling that comes as a crushing blow to public prosecutors and entertainment giants.

The case had been widely described as a "David vs Goliath" battle, pitting 16-year-old Jon Lech Johansen from a small town south of Oslo against huge corporations and organizations including the Motion Picture Association of America.

"David" clearly won.

Norwegian prosecutors, acting largely on a complaint from the powerful American entertainment industry, had maintained that Johansen acted illegally when he shared his DVD decryption code with others by putting it out on the Internet. [...]

The court ruled there was "no evidence" that either Johansen or others had used the decryption code (called DeCSS) for illegal purposes. Johansen therefore couldn't be convicted on such grounds, nor for acting as an accessory to other alleged illegal activity, wrote judge Irene Sogn in the court's ruling.
 
 

• Comentary by Lawrence Lessig

On the wisdom in norway

In a second, important defeat for the RIAA, and DMCA-defender types, Johansen was acquitted by a Norwegian court. And as the EFF is nicely publicizing, the principles on which this court in Norway decided the case might be familiar to those who remember our own constitutional tradition. As the chief judge said in reading the verdict, “no one could be convicted of breaking into their own property” and “consumers have rights to legally obtained DVD films ‘even if the films are played in a different way than the makers had foreseen.” The freedom to tinker in Norway is real. So too should it be so here.
 

posted on Lessig's blog on Jan 8 2003

• Interview with Jon Johansen