NEW YORK — Chalk one up for the establishment in the ongoing, multi-pronged battle for control over intellectual property rights on the ‘Net.
A federal court judge in Gotham sided with the film industry Thursday in its effort to shut down online purveyors of software that can decrypt and copy content from DVDs.
In a ruling that the defendants have vowed to appeal, Judge Lewis A. Kaplan made permanent a temporary injunction against 2600.com and its author, Eric Corley, which prevents the site from providing access to a program called DeCSS.
The software, originally developed in part by a teenage hacker from Norway, is a small, easily downloadable program that lets users “unlock” DVD content and transfer it to their computers’ hard drives, from which it can be easily copied and traded.
The suit was originally filed late last year by the Motion Picture Assn. of America and eight of Hollywood’s largest film studios.
“This was, in my judgment, the most tightly reasoned, unambiguous decision I’ve read in a long time,” MPAA chief Jack Valenti told Daily Variety. “Judge Kaplan demolished every single argument posited by the defendant’s counsel.”
Corley’s defense team, headed by veteran First Amendment counsel Martin Garbus, had attacked the plaintiff’s case on several fronts. They argued that DeCSS copying constitutes a “fair use” of the technology because it allows users to make copies for personal use, like a VCR.
In an unprecedented argument that drew close scrutiny from Judge Kaplan, the defense also proposed that the DeCSS computer code itself was protected by the First Amendment as a form of speech.
However, Kaplan rejected that logic, noting that the code is “not purely expressive any more than the assassination of a political figure is purely a political statement.”
Getting around decision
In January, Judge Kaplan authorized a preliminary injunction barring 2600.com’s Corley from posting the actual DeCSS code online. Corley removed the code, but promptly posted links to foreign sites that still offered DeCSS.
The DeCSS case has been part of a larger legal offensive by both the motion picture and recording industries against online services that they claim flout the law and the rights of artists by circumventing the normal commercial channels by which artists are compensated for their work.
The recording industry’s suit against Napster is by far the most high-profile case, but a suit brought by both industries against file sharing service Scour Exchange also is likely to be impacted by Kaplan’s ruling.
Scour Exchange, which was sued last month by the Recording Industry Association of America, the MPAA and several of each group’s most prominent members, allows users to swap and download files of all types, including audio and video.
But the most important effect of the suits may be that venture capitalists and other high-profile sources of capital will likely steer clear of the controversial file-sharing services, argued the MPAA’s Valenti.
Without major financial backing, the sites will never be able to facilitate operations on the same scale as a service like Napster, which claims more than 20 million members, he said.
“Their funding will be drying up and there will be fewer of them until eventually they disappear,” he predicted.
David Atlas, an attorney for the defense, said he was “not entirely surprised” by the ruling, intimating that Kaplan appeared to have been swayed by the plaintiff’s arguments early on in the case.
“The plaintiffs painted our guys as hackers and thieves, when in fact they are journalists,” he contended. “I think the judge bought into that.”
Atlas also expressed disappointment in the rejection of the fair use defense, noting that when VHS tapes “go the way of the eight-track,” consumers will have no way to copy video content for personal use.
The decision “just allows copyright holders to expand their existing monopoly,” he said.