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Is letting go the right way forward?

By Scott Bradner

The DVD Copy Control Association claims that it was just changing tactics when it asked a California state court to dismiss its four year old case against Andrew Bunner, whom they had sued after he posted a copy of DeCSS on his web site. Maybe so, or maybe they knew they would lose. Either way, dropping the case left a number of issues unresolved but I expect that it will not be long before there are other opportunities to readdress the issues.

In 1999 Andrew Bunner, a San Francisco based programmer, posted a copy of the DeCSS DVD reading program on his web site. Later that year the DVD Copy Control Association (http://www.dvdcca.org/) , the keeper of the Content Scramble System (CSS) used to protect DVDs from being read by non-approved devices, sued Bunner and a whole bunch of other people who had posted copies of the code or links to the code. They sued on the basis that CSS was a trade secret and, in the words of their FAQ (http://www.dvdcca.org/faq.html) "the code for its algorithms and master keys - the main elements of its security - were stolen and posted on the Internet." The algorithms and keys had been reveled when the not-all-that-good encryption used on DVDs was cracked by a Noregian teenager. In short order thousands of copies of the software were posted to the 'net and the secret was out.

In spite of the widespread availability of the program, the DVD Copy Control Association claimed that the algorithms and keys were still trade secrets. It is far from clear to me how something so widely known could still be considered a secret -- that is an argument for lawyers not regular people. But lets say that the algorithms and keys ceased to be trade secrets when they got so widely published, what does that mean for other trade secrets like the formula for Coca-Cola. Would that mean that someone who breaks into a Coca-Cola computer and steals the formula would escape prosecution if he posted the formula to widely distributed usenet news groups? That would certainly play into the hands of an extortionist -- if he does the thing Coke fears the worst he could not be prosecuted.

CSS was developed to protect the copyrighted material on DVDs. A long and detailed article in the January 25th New York Times Magazine attacks the U.S. copyright system created by the copyright mafia and their lackeys in congress. The article, titled "The Tyranny of Copyright?" (http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html), looks at the current state of the mess and, among other things, discusses a proposal by William Fisher, director of the Berkman Center for Internet and Society at the Harvard Law School that would change the basic concept of paying for the use of copyrighted material. Fisher's idea is to tax blank DVDs and some types of computer equipment and distribute the tax money to copyright owners based on the use of their material. Maybe the fact that DeCSS will now be far easier to find will not be a long-term problem for the movie industry. Parts of Fisher's concept are already being implemented in various parts of the world including Canada (http://www.cb-cda.gc.ca/news/c20032004nr-e.html) but I'm not going to hold my breath for it to happen here. The idea gores too many oxen.

disclaimer: Goring oxen is an avocation for some at Harvard, but I've not talked to Fisher about his idea recently (he may be holding his breath for all I know).