4 May 2000. Thanks to AL.

May 3, 2000


by Allonn E. Levy, HUBER-SAMUELSON, San Jose

In a free and innovative society, there is a constant, productive, drive to improve – to build a better mousetrap. Although the new mousetrap is necessarily based on prior innovations, it seems that too often, once the new mousetrap is built, its builders seek to completely monopolize the market by demonizing any new innovations that might improve "their" better mousetrap.

The importance of continued advancement is perhaps most clearly illustrated in the field of high technology. Here, companies and fortunes are built through, and are dependent upon, innovation, reverse-engineering, and a free flow of ideas regarding evolving technology. Without such freedoms, the internal combustion vehicle would have been a fad enjoyed by a few "eccentric" people and the generic "P.C." would never have become a viable alternative to the Apple or the IBM computer. So cherished are the freedoms to innovate, reverse-engineer, and exchange information, that when the Motion Picture Association of America ("MPAA") filed numerous lawsuits that challenge these rights, technology participants flocked to defeat the MPAA’s efforts.

In the greater scheme, the DVD (Digital Versatile Disc) will likely prove to be but a blip on the digital radar. But for now, it’s the hottest thing since the advent of CDs. Created as a means to present portable data, including motion pictures, DVDs currently represent the newest, neatest, techno-gadget for the thriving PC and consumer markets.

Years ago, when the DVD industry was in its infancy, the MPAA formed a guild along with a few technology companies. The guild was allegedly brought together in order to provide an encryption mechanism for movies presented on DVD media. Eventually, the MPAA adopted and approved the DVD "Content Scrambling System" or CSS. The creation of CSS was done quietly and with no peer review, comment period, patent application, or public scrutiny. It was simply created, approved and subsequently installed into every single DVD sold by MPAA members.

Although CSS was "billed" as an encryption device to thwart piracy, it had some rather unusual side-benefits for the MPAA. Most notably, the CSS scheme meant that only DVD players licensed by the MPAA (or its counterpart the DVD CCA) could play purchased DVDs. By controlling the player market, the MPAA was able to regulate who watched their DVDs, where the DVDs were watched, and how they were watched. This was accomplished by including various measures within the licensed DVD players. For example, licensed DVD players contain "region coding" that stops consumers from playing DVDs lawfully purchased in another region and imported into a new region. Additionally, the CSS encryption blocks consumers from making legal, "fair use" copies for personal use or public comment (17 U.S.C §107) and stops consumers from fast-forwarding through commercials found on DVDs. The scheme solidifying these benefits was cemented when the MPAA successfully passed the federal Digital Millennium Copyright Act (DMCA), and concurrently asserted that the CSS program was entitled to trade secret status. The MPAA could then assert that a business or consumer could not circumvent CSS without violating the federal DMCA law and state trade secret law. Closer scrutiny suggests both assertions are flawed, but, for a limited time, the scheme worked, and a monopoly was born.

Unfortunately, as with most monopolies, the CSS scheme eventually failed to respond to customers’ needs. Specifically, European consumers became annoyed at the region coding that effectively stopped them from watching some of the DVDs they purchased; Consumers everywhere became annoyed that the licensed players would not allow them to fast-forward through the commercials placed at the beginning of the DVDs by MPAA members and; The Linux industry became annoyed that no player was available for the increasingly popular Linux operating system.

Soon, a number of industry participants began reverse-engineering or otherwise independently creating and posting small parts of the workings of the CSS system. As the data about CSS became more widely known more discussion about it was generated. Eventually, some number of individuals created a program called DeCSS and posted it on the World Wide Web. DeCSS, as the name suggests, works together with the CSS system to enable individuals to view CSS-encoded movies without a DVD player licensed by the MPAA. Thus, DeCSS and its derivatives reinstate all of the consumer freedoms the MPAA worked so diligently to suppress. In other words, DeCSS is the better mousetrap.

The MPAA immediately mobilized its infantry of attorneys to stamp out the new innovation by seeking to enjoin any posting of, or linking to, DeCSS information. In California, they sued some 500 individuals (no corporations or companies) who either posted the DeCSS code on their web sites, had previously posted the code (but since removed it), or had links to sites that had the DeCSS code. Since only individuals were sued, no insurance coverage was triggered and no attorneys were preparing to oppose the MPAA lawsuit. Fortunately, the Electronic Frontier Foundation (EFF), a cyber-rights non-profit group founded and supported by Internet industry participants volunteered to enter the fray. The EFF partnered with the firm of Huber-Samuelson of San Jose, and appeared jointly to defend the suit. After the MPAA suffered initial legal set backs, two additional federal actions were filed in New York and Connecticut under the DMCA. Soon after, the legal defense teams were enhanced with the addition of Thomas Moore III of Tomlinson Zisko Morosoli & Maser LLP, Prof. Eben Moglen of Columbia Law School, Martin Garbus of Frankfurt, Garbus, Klein, & Selz, Avery Chapman of Chapman & Associates, Jim Wheaton of The First Amendment Project and numerous other professors, attorneys and industry experts.

Each time a group attempts to thwart the rights of others, a potential for dangerous precedent exists. If the MPAA succeeds in any of these cases, they will have delivered a serious blow to the rights of others, to the use of public discourse on the web, to the creation of open-source innovation, and to the use of legitimate reverse-engineering – all of which form the lifeblood of hi-technology business and innovation.

So important is the right of reverse-engineering, that in 1992, the 9th Circuit expanded the definition of "fair use" of copyrighted material to include reverse-engineering of owned copyrighted software (Sega Enterprises Ltd v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). Indeed, California’s Uniform Trade Secret Act explicitly acknowledges and permits reverse-engineering (See Commissioners’ Comment to Cal.Civ.Code §3426.1; People v. Gopal (1985) 171 CAl.App.3d 524). The rationale behind these rules is elementary: permitting and encouraging innovation.

The importance of free speech, open discourse, comment, and criticism is so fundamental, that it hardly seems worth addressing. It is sufficient to note, that the right to free speech is not solely intended to protect hate groups and fringe religions; rather, at its very core is the tangible, productive, use of speech to generate innovation (see Sweezy v. New Hampshire 354 U.S. 234, 249-250 (1957) importance of protecting scholarship and academic inquiry).

The DVD cases revolve around a number of individuals who have collectively reverse-engineered the CSS program and collaborated to create a new, open-source derivative called DeCSS. DeCSS and its derivatives enable consumers to play DVDs on Linux boxes, to avoid the MPAA’s region coding, and to fast forward through any part of their purchased DVD. Just about the only thing DeCSS does not do is facilitate piracy.

The reason DeCSS does not facilitate piracy is, admittedly, more practical than regulatory – there is no suggestion that the makers of DeCSS specifically tried to stop piracy. Yet, as it turns out, the sheer size of unencrypted DVD movies makes transfer over the internet ridiculous (300 hours for a single movie with a high speed modem), and storage in a tangible or virtual "library" not feasible (encrypted DVDs contain some 6 gigabytes of information). These practical reasons are also likely behind the fact that the few private producers of movie DVDs who have opted not to incorporate CSS into their DVDs, instead selling non-encrypted DVDs, have reported no increased piracy.

Today, businesses, and our society as a whole, depend on reverse-engineering and open discourse to continually innovate. We depend on peer-review, open interaction, and free discussion of ideas and technology to facilitate advancement and the building of better mousetraps. Our rights to reverse-engineer products and our rights to exchange ideas freely are intertwined to form one of our most economically fruitful civil rights.

It is disturbing to see one market participant attempt to thwart new innovation, curtailing advancement. In order to facilitate innovation, our society encourages the use of patents and copyrights (neither of which have been asserted here) to grant an innovator a limited monopoly over his or her new mousetrap. No law, however, grants a total monopoly, and no policy supports a total cessation of innovation, based solely upon market domination through a particular business plan. No market participant, no matter how powerful, should be permitted to exploit the law – using the courts to suppress creativity and discourse, snapping shut the clamping jaws of its mousetrap to stifle the continued innovation of others.