The movie industry trade group has sent out an additional 500 cease-and-desist letters to Web site operators accusing them of violating U.S. copyright law, after chalking up a victory in the Southern District of New York yesterday. Federal judge Lewis Kaplan issued a preliminary injunction against three defendants sued by the Motion Picture Association of America (MPAA) for the distribution of the de-scrambling program on the Internet.
Those defendants have been ordered to take the material in question off their Web sites.
"Judge Kaplan's ruling represents a great victory for creative artists, consumers and copyright owners everywhere," Jack Valenti, CEO of the MPAA, said in a statement. "I think this serves as a wake-up call to anyone who contemplates stealing intellectual property."
The motion picture industry has been on a warpath for about six months, sending letters to hundreds of Web sites ordering them to remove the "offending" code or links to it. The MPAA started its battle after a 16-year-old Norwegian student posted code known as DeCSS on a Web site that theoretically would allow a user with a DVD drive on his or her PC to break DVD security to play the movies on unauthorized players.
Since that time, the utility has spread almost like wildfire, multiplying to hundreds of sites. In cases where the people have not folded, the MPAA has taken them to court under a myriad of legal tactics--including accusations of stealing trade secrets.
But civil liberties advocates are firing back at the MPAA. The Electronic Frontier Foundation (EFF), a nonprofit organization providing pro bono legal counsel to the defendants in the New York case and another case in California, argues that many of the sites do not offer copyright cracking tools but discuss the "the technical insecurity of DVD."
"These cases are not about piracy or hacking," Tara Lemmey, EFF's executive director, said in a statement. "They are about censorship of speech critical to science, education and innovation."
The film industry maintains, however, that distribution of the DeCSS goes beyond playing DVDs on other operating systems and allows people to make illegal copies of movies for distribution.
With its latest round of letters, the MPAA continues its tactics of using the Digital Millennium Copyright Act (DMCA) to pressure sites to remove the code. The New York-based firm of Sargoy, Stein, Rosen & Shapiro, which represents 11 major movie studios including Paramount Pictures, Warner Bros. and Columbia Pictures, is trying to get more sites to remove the DeCSS utility.
The DMCA made it a crime to distribute technologies designed to circumvent copyright protection measures.
One letter was sent to Brian Ristuccia, who runs a Web site that contains information about the DeCSS.
"These activities constitute infringement of the exclusive rights to make copies and to distribute copies; and constitute an infringement of copyright by offering goods or services which are primarily designed to circumvent technological protection measures," the letter states.
Ristuccia, who received the cease-and-desist letter Wednesday, said he is not about to back down. He acknowledges that his site contains the Linux Video and DVD Project (LiViD) and other features but maintains that the "claims that the publication of these items violates copyright law are false."
"I appreciate the fact that there are cultural perceptions about how information should flow, but the people who have those perceptions still must conduct themselves in conformity with the law," said Harvey Shapiro, an attorney at the law firm representing the MPAA. "By putting (the decoder) up there and allowing people to make copies of the software, it might constitute an infringement of copyright."
Although the DMCA, passed in October 1998, made it a crime for a person to breach copyright-protected devices, that part of the law has not gone into effect yet because of exemptions for research and education.
Yesterday's preliminary injunction in New York comes less than a month after a Santa Clara County, Calif., judge rejected the industry's request for a temporary restraining order against 72 people accused of violating trade secrets by helping distribute the decoder over the Web.
The judge in the California case rejected an initial request for a restraining order last month but is expected to hold a hearing on the matter next week.
The defendants argue that the DeCSS was developed to make the DVD format compatible with Linux operating software so that DVDs could be played via computers that run Linux.
Many in the software industry consider reverse engineering both legitimate and important for the development of systems' interoperability, citing the importance of the open source movement in challenging Microsoft's control of the desktop with its Windows operating system. The EFF says the DVD case strikes at the heart of reverse engineering.
"Today's decision is a major wake-up call for the $30 billion Linux community," EFF cofounder John Gilmore said in a statement. "If Judge Kaplan's reading of the DMCA holds, then it will become illegal to build open source products that can interoperate and/or compete with proprietary ones for displaying copyrighted content."
Morever, the New York decision could impinge on people's rights over the use of their DVDs.
"If this ruling is upheld, it would be a huge blow to fair use," which gives people the right to make copies for personal use without the author's permission, said EFF staff attorney Robin Gross.