The difference between merely typing the address to a Web site and linking to it comes down to some simple HTML code.
As it turns out, that same code also can be the difference between free speech and a federal crime.
This legal oddity results from a ruling released earlier this month in a lawsuit targeting DeCSS, a program designed to strip the copy protection from movies released on DVD. U.S. District Judge Lewis Kaplan’s decision is a significant victory for Hollywood in its ongoing fight against digital pirates.
It’s easy to see why the judge wanted to crack down on kids trading unauthorized copies of movies on the Net. But his blind defense of a one-sided federal law will create problems for Web designers as well as teachers, journalists or anyone else who wants to make fair use of copyrighted material in digital form.
The case focuses on Eric Corley, a New York resident and operator of 2600 (www.2600.org), a Web site that caters to hackers. A group of movie studios sued Corley last year after he posted downloadable copies of DeCSS on his site, accusing him of violating the Digital Millennium Copyright Act.
Illegal links
The lawsuit is the first to test that law, which Congress passed in 1998 over complaints that it would restrict the legitimate use of copyrighted material.
The arguments Corley raised in his defense were the same ones civil libertarians cited in opposing the law in the first place: namely, that the statute violates the First Amendment.
The law makes it a crime to use a product like DeCSS, which allows people to create digital copies of movies that can be stored on a computer and traded online. Though the program’s creators say they built it to let them play store-bought DVDs on computers running the Linux operating system, the law makes it a crime to work around copy protection schemes for almost any reason.
This, in turn, makes it difficult for people to make “fair use” of anything distributed on DVDs. It would be perfectly legal, for example, for a film teacher to copy clips from several Keanu Reeves movies onto a single CD-ROM to illustrate a lecture about poor acting. But the copy protection schemes on DVDs make that task impossible without a program like DeCSS, which is now illegal to use.
Kaplan doesn’t show much sympathy for fair use. His solution for the teacher? If you want to exercise your constitutionally protected right to fair use, just buy the movies on videotape. While I’m sure this pleases the movie studios, it won’t do much good once films and other content are released only in copy-protected digital form.
Legal loopholes
When Kaplan ordered Corley to remove DeCSS from his site earlier this year, the defendant responded by posting links to dozens of other Web pages where the program was still available. In so doing, the movie studios alleged, he violated another part of the law that makes it illegal to “traffic” in such programs.
Kaplan agreed, setting a dangerous precedent for anyone who values online speech or, for that matter, sound logic. While the Supreme Court has said online speech deserves the highest degree of protection from government interference, Kaplan said that standard doesn’t apply to links because they have functionality.
Links, you see, don’t just say something they do something. That alone, Kaplan says, suggests they can be censored if doing so furthers some reasonable government purpose. So even if you don’t post anything that violates anyone’s copyright, you can be convicted of a federal crime if you knowingly link to someone who does.
The silliness of this decision is highlighted by Corley’s response to it. After the ruling was released, he left the offending Web addresses on his site but removed the HTML code that makes them “clickable.” Visitors to 2600 can still see where DeCSS is posted. All they need to do to get there is cut and paste the address into their browser’s address window.
This might frustrate the movie studios, but they’re getting what they deserve. With the Digital Millennium Copyright Act, Congress has catered so completely to copyright holders that everyone else must resort to legal loopholes in order to exercise their First Amendment rights.
To contact syndicated columnist Joe Salkowski, you can e-mail him at [email protected] or write to him c/o Tribune Media Services Inc., 435 N. Michigan Ave., Suite 1400, Chicago, IL, 60611.
