Those who supported the DMCA disagree, of course, and do so honestly. They see rampant piracy as a reality and the threat to fair use as some kind of academic hypothetical rarely encountered in reality. What's more, many of them do not think fair use is that important economically or culturally. If markets work well, users could be made to pay for the rights that fair use gives—but only if they wanted them. One could buy expensive digital books which one was allowed to share, quote, or copy for classroom use, and cheaper ones which one had to keep to oneself. Remember that for many of the people who supported the DMCA, fair use is something of a "loophole"; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. (Remember the Sony Axiom from Chapter 4?) They find the analogy of fair use to a public road ludicrous. This film, or book, or song, is mine; anything you do with it, or to it, you do at my sufferance. (Remember the Jefferson Warning from Chapter 2?) 20
How has the DMCA worked in reality? Which group's attitudes were vindicated? Two case studies may help us to answer these questions. 21
Infectious Speech: The DMCA and Freedom of Expression 22
Jon Johansen, a 16-year-old Norwegian, was the unwitting catalyst for one of the most important cases interpreting the DMCA. He and two anonymous helpers wrote a program called DeCSS. Depending on whom you listen to, DeCSS is described either as a way of allowing people who use Linux or other open source operating systems to play DVDs on their computers, or as a tool for piracy that threatened the entire movie industry and violated the DMCA. 23
A little background is in order. When you play a commercial DVD, your actions are partly controlled by a simple encryption scheme called CSS, or the Content Scramble System. The DVD Copy Control Association licenses the keys to this encryption system to the manufacturers of DVD players. Without a key, most DVDs could not be played. The manufacturer then embeds this key in its hardware design in such a way that it is easy for your player to decode and play the movie but hard, at least for a person of average technical competence, to copy the decoded "stream." 24
Because the DVD Copy Control Association will only license keys to manufacturers whose DVD players conform exactly to their specifications, the CSS scheme can also be used to control viewers in other ways. For example, DVD players are required to have one of six "region codes," depending on where in the world they are sold. Region 1 is the United States and Canada. Region 2 is Japan, Europe, South Africa, the Middle East, and—bizarrely—Greenland. Region 3 is South Korea, Taiwan, and Hong Kong; and so on. The CSS scheme can be used to restrict a movie to a player with the appropriate region code. If you try to play a movie coded for region 6 (China) in a DVD player from region 1, it will not play. This allows filmmakers to distribute different versions of films to different regions at different times based on sequential release in cinemas, or simply to distribute DVDs with different prices to different regions without worrying about whether the cheaper DVDs will "leak" into the more lucrative markets. CSS and the hardware scheme that unlocks it can also be used to prevent you from fast-forwarding through the commercials at the beginning of the movie if the copyright owner does not want you to, or from skipping the FBI notice. The machine will not do it. In fact, it is deliberately built so that it cannot do it. 25
What we have here is a digital fence that is partly used to prevent copying. Movie studios are understandably worried about the worldwide circulation of perfect digital copies of their movies. CSS was supposed to help to prevent that, or at least make it much harder. But because almost all movies are encrypted with CSS and access to the keys comes with conditions, CSS also allows a more fine-grained control over consumers. Manufacturers are not allowed to make players which can view movies from all region codes or skip portions of the DVD that the owners do not want you to skip. The licensing body puts it this way on its Web site: "Q. Under the terms of the CSS licensing agreement, is it legal for a licensed manufacturer to produce and sell a product which allows a user to disable any CSS protections? A. No. Such products are not allowed under the terms of the CSS license. They are illegal."3 A technology introduced to protect intellectual property rights allows control in ways that those rights alone do not. 26
Before the DMCA, the movie companies could have done exactly this. They could have wrapped their movies in a digital fence. The consumer electronics companies that wanted to could license a key and be allowed to use a trademark that indicated that they were approved by the DVD Copy Control Association. But what if a manufacturer of DVD players felt that American consumers wanted to be able to play their Japanese anime movies without buying another DVD player to do so? Or what if they thought people were antsy and did not want to watch the FBI notice before every film? The manufacturer could have tried to "reverse engineer" the CSS system, to figure out how it worked. If they succeeded, they could make a player that was free of the restrictions that the CSS licensing authority imposed. 27
Of course there were some legal limitations even before the DMCA. Our hypothetical manufacturer could not break into the safe where the CSS code was being held or bribe an employee to provide it. (That would be a trespass or a violation of trade secret law.) It could not violate copyright laws over the various types of software that controlled DVD players. It could not use the trademarks of any of the entities involved, including any seal of approval granted by the DVD Copy Control Association. But it could—at least in the United States—try to reverse engineer the product so as to make a competing product with features that the customers liked more. It would be no more illegal than a company making a cheaper generic razor cartridge that fits my expensive Gillette Mach 3 razor, a generic printer cartridge to replace the expensive one in my Lexmark printer, or, for that matter, a generic remote control for my garage door opener. In each case, of course, the original manufacturer would prefer that I use their products rather than the unlicensed ones. They can design their product to make it hard to use a generic replacement or even tell me that my warranty will be void if I use one. But they cannot say that the unlicensed product is illegal. We are back in option one of the Farmers' Tale, before the legislature acted. The farmers can put up their wire, and even use it to block passage that would be otherwise legal, but it is not a crime to figure out a way through the fence unless the fence cutter is also a trespasser. The DMCA, however, might have changed all of that. 28
Let us return to Mr. Johansen, the 16-year-old Norwegian. He and his two anonymous collaborators claimed that they were affected by another limitation imposed by the CSS licensing body. At that time, there was no way to play DVDs on a computer running Linux, or any other free or open source operating system. (I will talk more about free and open source software later.) Let's say you buy a laptop. A Sony Vaio running Windows, for example. It has a slot in the side for DVDs to slide in and software that comes along with it which allows the DVD reader to decode and play the disk. The people who wrote the software have been licensed by the DVD Copy Control Association and provided with a CSS key. But at the time Mr. Johansen set out to create DeCSS, the licensing body had not licensed keys to any free or open source software developers. Say Mr. Johansen buys the Sony Vaio, but with the Linux operating system on it instead of Windows. The computer is the same. The little slot is still there. Writing an open source program to control the DVD player is trivial. But without the CSS key, there is no way for the player to decode and play the movie. (The licensing authority later did license an open source player, perhaps because they realized its unavailability gave Mr. Johansen a strong defense, perhaps because they feared an antitrust suit, or perhaps because they just got around to it.) 29