The motion picture industry is at war with its customers, trying to control the hardware on which movie lovers can play back the DVD movies they have legally acquired. The industry's fear of emerging high-bandwidth Internet delivery systems, which threaten to cut them out of the distribution loop, has caused them to press hard on all legal fronts to try and gain unprecedented control of intellectual property. And that control would reduce or eliminate the ownership and "fair use" rights citizens currently enjoy with traditional intellectual property such as books, magazines and even VCR tapes. Even worse, this blatant grab for ironclad control of motion pictures violates both the sprit and intent of the copyright clause in the Constitution! To understand the specifics of this issue, it is necessary to understand how DVD encryption works, why and how it was circumvented, and the reasons (and fears!) behind the lawsuits. We'll also examine a dangerous new law spawned by the motion picture industry that could potentially end the wide-open nature of the World Wide Web as we now know it!

We've been here before. When they were first introduced, the motion picture industry declared that the video cassette recorder was a "piracy tool" with no legitimate legal use, and went to court to stop their sales. The very right to own and use a VCR was won only after a bitter court fight with the same movie moguls, spouting the same litany over the potential loss of business they claim today in the DeCSS case. The battle over the VCR resulted in a landmark Supreme Court ruling in Sony Corp. V. Universal City Studios, Inc., 464 U.S. 417 (1984) that codified into case law the "fair use" right to make noncommercial copies. And rather than hurt the movie studios' bottom lines as they had warned, not only did movie lovers not stop going to the movies, but the new technology also spawned a video rental industry that had never existed before, which for many years added billions of dollars in additional revenue to the industry's pockets that wouldn't have existed if they had won their case!

CSS Explained. Video written on DVD disks is encrypted with a technology called the Content Scrambling System (CSS), which a hardware or software DVD player decrypts on the fly by the data is read off the disk into memory. Manufacturers and software developers desiring to build a DVD player, be it hardware or software, have to first purchase a very expensive license from the DVD Copy Control Authority (DVD-CCA). As part of the license, the purchaser is given a decryption key, unique to each license, that allows the player to "unscramble" the encrypted data. This key is programmed into to the player's decoder, and allows the decoder to work. (Note: this is a somewhat simplistic description of the CSS system's operation. For a more in-depth, technical explanation of CSS, see Frank A. Stevenson's Cryptanalysis of Contents Scrambling System (sic))

The Big Lie. Despite what the MPA asserts, CSS does not prevent anyone from copying DVDs. Assuming you can afford the $1-2 cost for a DVD blank and the $90 or so for the computer DVD drive, you can copy a $15-25 DVD video disc any time you want (assuming you could find a company that makes DVD copying software that hasn't already been sued!)! This illuminates the key fact the DVD-CCA and MPA would just as soon not have you know: CSS was never intended to be a copy protection system: it was designed and intended to be a playback control mechanism.

CSS was designed into the DVD format at the request of the Motion Picture Association of America. The MPAA's biggest complaint about VCR tapes was that, since the industry's sorry distribution system couldn't handle simultaneous world-wide release of a motion picture, a consumer could buy a VCR tape in the US and play it back overseas before the movie was even released in the theaters there! Though it has never been born out by any research I know of, their fear was that this would take eyeballs away from the movie theater. So CSS was designed primarily to control the geographic region the DVD could be played back in, by assigning "region" codes to the DVD. This code is detected by the player, which will only play back the movie if the DVD is coded for the same region! This control over the ability to play back the DVD — specifically, the machine or computer it is able to play on and where it's geographically located — violates current "fair use" laws by denying the purchaser unrestricted access to the intellectual property they have legally acquired. Further, such restricted access goes far beyond the intent of current copyright laws regarding intellectual property. Imagine, for example, if you were to buy a book or magazine in the US, but were told you couldn't read it overseas! This, in essence, is what CSS imposes on the DVD owner. And understand that no law was passed to deny you your DVD fair used rights: the motion picture and consumer electronics industries working in cahoots without any public input arbitrarily imposed this limitation on us technologically!

The big consumer electronics firms (many of whom collaborated with the motion picture industry to develop the DVD media standards in the first place!) expected to make megabucks selling DVD players, so they had no trouble paying the licensing fee! And as DVD players began appearing in computers, software manufacturers also ponied up the big bucks necessary to obtain a decryption key for "shrink wrapped" software running on Microsoft Windows and Mac OS. However, no company or person was willing or able to spend the thousands of dollars necessary to buy a license to build a DVD player program for the open-source operating system Linux. Which meant that even if a Linux user had the necessary hardware, and a legally acquired DVD movie, they still couldn't view the DVD's contents on their computer!

DeCSS is born. Enter 15-year-old Norwegian programmer Jon Johansen, who was tired of maintaining a second computer system running Windows just to play his DVDs! Jon and a group of friends in the Linux community who call themselves the Masters of Reverse Engineering (MoRE), started analyzing the data streams going to and from Windows DVD players, to try and figure out how they worked. Their intent wasn't video piracy, but rather a desire to exercise their "fair use" right to view legally-acquired DVDs on their Linux PCs. Although the details are sketchy, and no one is admitting anything, it is theorized that MoRE was unwittingly assisted in their efforts by software maker Xing, who had failed to disguise the programming code in their Windows DVD player software that contained their decrypt key. An as-yet-unnamed German member of MoRE apparently found this unprotected key. Regardless of how he figured it out, he took credit in an interview for decompiling the encryption algorithm. (The previous assumptions are based on the fact that a Xing decrypt key was found in the DeCSS source code. MoRE says this is not significant, and Xing's was chosen at random from the numerous keys they deciphered. However, the undisguised key in Xing's Windows DVD player software is a matter of fact!) From there it was a very short step to creation of the DeCSS program, which allowed the Linux community to "build" its own software DVD player.

So why are the MPA and DVD-CCA so concerned about a few fringe Linux users playing DVDs on PCs? Well, it wasn't enough that the members of MoRE posted DeCSS on the Web: true to the spirit of the open source movement to which they belong, they also posted the DeCSS source code as well, and of course embedded in the code is the key to the CSS system itself! The code was quickly distributed throughout the open-source software community, and suddenly anyone who wanted to make a license-free DVD player, hardware or software, had the code to do it without paying the DVD-CCA a penny! This threatened to cut off the lucrative license fees the DVD-CCA receives from manufacturers. But even worse, from the MPA's point of view, it threatened to allow the production of hardware and software DVD players that can play any DVD anywhere in the world, regardless of its region code.

Unfortunately for the motion picture industry, the DeCSS brouhaha has brought CSS, and its limitations, into the limelight. The system that, even though they knew otherwise, was sold to the motion picture industry as a copy protection system is now revealed for what it is, and what it is not! Some of those keeping track of this issue in the media have theorized that all the court cases, and the blatant lies told in court by the DVD-CCA to perpetuate the "copy protection" fiction, are primarily designed to distract the public from the real facts in the case!

The Court Case. The DVD-CCA's attack against DeCSS started with a flurry of threatening letters to every Web site posting the source code, and even to those that provided links to those who did. The open-source community, who looked at the DeCSS as a fair use and free speech issue, basically ignored these threats . . . until hundreds of lawsuits started flying! Many of those sued were hobbyists without the resources to fight a protracted legal battle, so most of them bowed to the legal pressure and removed the code. But not all of them.

The most visible of these cases, and the one most watchers thought would define the level of control copyright holders have over digital media in the future, is that of DVD Copy Control Association, Inc. v. Bunner. Andrew Bunner, webmaster of 2600.com, an open-source hacker's Web site, who reposted the code on his Web site as part of a news article he wrote about DeCSS. He considerd himself a journalist, and saw the DVD-CCA's lawsuit as nothing less than an attack on his First Amendment right of Freedom of the Press. So did the Electronic Frontier Foundation, who joined the defense and helped Andrew research and write his briefs (they are also maintaining an excellent archive page on the case). The Digital Mellennium Copyright Act is at the core of this whole issue, and the "hook" upon which the DVD-CCA's entire case hung (more on that law below).

As expected, the judge in the DeCSS lawsuit bought the DVD-CCA's piracy argument, and chose protecting profits over press and personal freedom by ruling in the DVD-CCA's favor. The trial went back and forth several times, with the DVD-CCA claiming the code in DeCSS was a "trade secret," and that the code was figured out by reverse engineering of CSS, which they couldn't prove. The case eventually closed with the court ruling that since DeCSS, and the CSS code itself had be published online so many times tht it could no longer be considered a trade secret! So Mr. Brunner won . . . sort of. In any event, over a decade later, DeCSS is <A TARGET="_TOP" HREF="https://www.cs.cmu.edu/~dst/DeCSS/">still available online</A>, and Linux users are still using it to play their legally procured DVDs!

The Digital Millennium Copyright Act. The original motivation for writing this law was to implement the World Intellectual Property Organization Copyright Treaty, of which the US is a signatory. However, at the behest of the Motion Picture Association of America (MPAA), the Recording INdustry Association of America (RIAA), and other moneyed special interests, Congress added provisions "for other reasons" that extend control of digital intellectual property rights far beyond the limits of current case law, some of which myself and many others believe are patently unconstitutional, and despite strong objections from many fronts, enacted them into law :

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device,
component, or part thereof, that--

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure
that effectively protects a right of a copyright owner underthis title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a
technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in
circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under
this title in a work or a portion thereof.

Basically, this provision makes it illegal to circumvent copy protection, even if the intent is to make a legal, noncommercial copy, which was a legitimate, legal "fair use" act under copyright case law, prior to this Act (and should be still!).

(f ) Reverse Engineering.-

(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to
use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion
of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve
interoperability of an independently created computer program with other programs, and that have not previously
been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis
do not constitute infringement under this title.

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a
technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification
and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with
other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not
constitute infringement under this title.

(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made
available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely
for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that
doing so does not constitute infringement under this title or violate applicable law other than this section.

(4) For purposes of this subsection, the term `interoperability' means the ability of computer programs to exchange information,
and of such programs mutually to use the information which has been exchanged.

This is the provision the DVD-CCA is citing in an attempt to block DeCSS. They contend that — even though there are no facts to support it, only supposition — reverse engineering was used to produce DeCSS. But the irony here is that, if you read the provision closely, per section (f)(2), reverse engineering is specifically allowed for ensuring "interoperability of an independently created computer program", like maybe a Linux DVD player program?! How the judge in the case couldn't make the obvious connection is beyond me!

(d) Information Location Tools.--A service provider shall not be liable for monetary relief, or, except as provided in subsection
( j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users
to an online location containing infringing material or infringing activity, by using information location tools, including a
directory, index, reference, pointer, or hypertext link, if the service provider-

(1)(A) does not have actual knowledge that the material or activity is infringing;

(B) in the absence of such actual knowledge, is not aware of facts or circumstances from
which infringing activity is apparent; or

(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(2) does not receive a financial benefit directly atributable to the infringing activity,
in a case in which the service provider has the right and ability to control such
activity; and

(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or
disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except
that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of
the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

Note that this section has the effect of making it illegal to merely knowingly provide a link to information elsewhere on the Web. This is the online equivalent to arresting someone for publishing an address or phone number in a newspaper or magazine, acts that are clearly protected speech under the First Amendment. Further, it specifies that an "offending" link must be removed or disabled based on a mere claim of infringement, even if the alleged infringement is in dispute or later disproved. This turns "innocent until proven guilty" on its head!

These days DVD sales have been flattening as users typically view motion pictures and videos from streaming services their "Cable TV" companies provide, as well as independant sites like Netflix and Amazon Prime Video. As I noteed under MP3 Audio, my concern about media streaming, be it music or video, is that the customer has no guarantee that their favorite movies or videos will be there online forever. The reason? New movies are being created all the time, and whether the streaming srvices like it or not, those new movies aren't small files, and need to be saved to a server hard dive array somewhere! And as time goes on, at some point storing the necessary exabytes of content will become an issue. At that point, a decision must be made: pay for more storage space or start deleting relatively unused content. Given that the cost of buying more storage space is not trivial, and deleting content is essentially free, which do you think streaming services will eventually choose? That's why I want to buy my content and preserve my copies. That way I know they won't be going anywhere!