CODE WORDS: COURTROOM DRAMA

  by Paul Sweeting (psweeting@cahners.com)

AUG. 7, 2000--Real-life trials are rarely like Perry Mason
episodes. They're usually highly scripted and fairly dull affairs,
especially civil trials, in which the substance of the testimony is
known to both sides in advance. Rarely does the testimony of any
single witness dramatically alter the outcome.

However, the final day of testimony in the ongoing DVD hacker case in
New York pitting Eric Corley against the MPAA produced something close
to a Perry Mason moment, when computer scientist David Touretzky of
Carnegie Mellon University gave an elegant demonstration of the
difficulty any court is going to have in resolving the dispute at the
heart of this case.

The defense has argued, in part, that the computer source code that
describes the DeCSS utility is a form of speech and that posting it on
a Web site ought to be protected by the First Amendment. Until now,
the judge in the case, Federal District Court judge Lewis Kaplan, has
shown little sympathy for that position and little patience with the
defense's argument.

In the preliminary injunction Kaplan issued in January, he ordered
Corley to remove all forms of the DeCSS decryption code from his
2600.com Web site. His only concession to the First Amendment was to
permit comments about DeCSS, in English, on the site's discussion
board.

Yet through a series of exhibits taken from his own Web site,
Touretzky was able to demonstrate that to a computer scientist, there
is no functional difference between the DeCSS source code, object code
or even the binary code of ones and zeros the computer actually reads
and an English-language description of what the code does.

Anyone with an undergraduate computer major's knowledge of
programming, he claimed, could easily reconstruct a functionally
equivalent version of the DeCSS source code simply by reading an
English-language description of what it does.

If the court's aim is to effectively ban DeCSS, therefore, it would
have to extend the injunction to cover a type of speech that would be
unambiguously protected by the First Amendment, whether DeCSS is
ultimately ruled illegal or not.

Moreover, if there's functionally no difference between expressing
something in English and expressing it as computer source code, then
perhaps no constitutional distinction can be made between them either.

Previously, the judge dismissed the view that computer source code
should qualify as protected speech under the First Amendment, calling
it "no more expressive than an automobile ignition key."

But after Touretzky's testimony, Kaplan said he was persuaded to
reconsider his constitutional analysis of the case.

It would be difficult to claim "that computer code of any kind has no
expressive content," he said from the bench. "Which then gets you to
the question of how then do you deal with it under the First
Amendment?"

Until Touretzky appeared, even the defense attorneys were expecting
Kaplan to rule in favor of the studios. By closing off most of the
defense's efforts to raise broad constitutional objections, he steered
the case along fairly narrow copyright infringement grounds. And under
the Digital Millennium Copyright Act, DeCSS is clearly vulnerable to a
claim of copyright infringement.

The judge's last-minute reconsideration of the defense's claims may
still not be enough to alter the likely outcome of the trial, but at
the very least, it provides the defense with ample grounds for appeal
should the judge rule against them in this phase of the case. That
raises the stakes for the studios considerably.

As the music industry has discovered, digital technology moves
quickly, raising novel challenges to copyright almost as fast as
copyright owners can sue to stop them.

As the first major test of the Digital Millennium Copyright Act, the
studios hope the DeCSS case would provide a clear vindication of a
powerful new tool in the battle to protect copyrights from digital
infringement. The last thing they need is for the case to become
subject to a searching constitutional analysis that could ultimately
lead to part or all of the new law being invalidated by the courts.

The case has a long way to go before it could reach that point. Final
briefs were set for Aug. 8, and then the judge must rule. But as
Kaplan--a judge clearly sympathetic to copyright interests--has
already acknowledged, crafting a response to DeCSS that effectively
enforces the law without running afoul of the First Amendment will not
be a simple matter.