DeCSS
In October 1999, the source code for DeCSS appeared online for the first time on a Web site run by a Norwegian student. The DeCSS source code provided a key that decrypted the motion picture industry's Content Scrambling System (CSS). CSS had been developed to ensure that DVDs could be viewed but not copied. DeCSS changed that overnight. Suddenly, developers with the DeCSS code could build software to view DVDs on unlicensed systems (like Linux) and make backups of DVDs by copying them to other DVDs or a set of CD-ROMs. The code also enabled digital piracy by allowing developers to create tools that could rip a perfect digital copy of a motion picture from a DVD. That's what frightened the film industry.
The code originally appeared in Norway, but was all over the world within a few days. What made matters worse for the motion picture industry was that a sizeable number of Internet users were determined to ensure that the DeCSS code remained publicly available. They put the code on T-shirts, embedded it in software and graphics, and even set DeCSS to music by making it the lyrics of a song. This made the MPAA's job the legal equivalent of Whack-a-Mole: stop one person, and another pops up somewhere else.
The legal issues were fascinating. Was the code a violation of the law regarding circumventing copyright protection systems? Or was the publication of the code free speech? Was printing the code on a T-shirt free speech? If publishing the DeCSS code was a violation of copyright law, just who was liable for that violation, the person who first released the code or anyone who subsequently published it? If any publisher was liable, what about those who simply mirrored sites that published the code? What if you only linked to a site with the DeCSS code?
Movie88
Think of any movie that you enjoyed seeing in the last twenty years. Would you pay a dollar to see it again right now? That was the promise of Movie88.com, a site launched earlier this year with a vast library of current and classic digitized movies streamed over a broadband connection for a dollar each. The only problem for Movie88.com entrepreneur Soo Tan, however, was that he didn't have the right to distribute the movies that his company featured. Companies in Hollywood owned the copyrights, and they weren't licensing them for Internet distribution. In turn, the problem for Hollywood was that Tan and Movie88 were based in Taiwan, and Tan claimed that the copyrights of the MPAA's member companies weren't recognized there. This highlights one of the most intractable legal issues of the Internet age: How do you reconcile the legal standards of different countries when it comes to data transmitted over the Internet?
As it turns out, Tan was wrong about Taiwan's copyright law. After meeting with representatives of the MPAA, the police in Taiwan shut down the Movie88 servers and arrested some of Tan's associates. But not Tan. In another game of Whack-a-Mole, he popped up a few months later with a new site, Film88.com. He had a new home too: Iran. To shut him down, the MPAA filed suit in...Los Angeles.
The Los Angeles case is only recently underway, but we already know the outcome the MPAA will win. If it hasn't already, it will soon obtain an order requiring Tan and his company to shut down Film88. But what then? How that order will be enforced against a defendant in Iran is the real question.
iCrave a Lawsuit
The opening sentence of the lawsuit filed by MPAA member companies against iCrave TV states that the case is brought "to stop one of the largest and most brazen thefts of intellectual property ever committed in the United States." Perhaps, but it was also an ingenious idea.
iCraveTV was based in Canada, where it was subject to Canada's laws. Its offices were close enough to the United States border, however, to receive television broadcasts from the major United States networks and their affiliates. Using an almost trivially simple set-up, iCraveTV received normal television broadcasts, digitized them, and streamed them to whomever wanted them over the Internet. The broadcasts were intended for free, public broadcast, right? So on one level, all iCraveTV was doing was giving the broadcasts some extra legs.
That wasn't how the broadcasters saw it though. While iCraveTV was based in Canada, the man who started it lived in Pennsylvania, so the MPAA sued him there. The legal issues presented a new twist on file sharing. Can you repurpose a public broadcast over the television airways onto the Internet? Who owns the "Internet rights" to copyrighted content?
A Body of Law
Not all of these questions have answers yet, but answers are starting to take shape thanks to the RIAA and the MPAA. While you may be pulling for one side or the other, don't underestimate the value of legal certainty by itself, regardless of how the various cases work themselves out. Believe me, it's much easier to find investors and develop new businesses in a certain legal environment than it is when the legal issues are wide open.
The development of Internet law has even benefited from the aggressive enforcement stance taken by the recording and motion picture industries. When you push hard, you occasionally push too far. And that's when we find out where various laws and legal principles have their limits.
Here's an example. A group of Hollywood-based media companies recently lost a case before the California Supreme Court when trying to sue a Texas college student in a Los Angeles court. The companies' theory? Because the student's actions would hurt the motion picture industry, which everyone knows is based in California, the student should have reasonably expected that he could be sued in California. The California Supreme Court rejected that theory, leaving the film companies to chase the defendant in the state where he lived. When the companies pushed too hard, Internet jurisdiction found a limit.
The good comes with the bad though. Having one industry segment—media companies—make all the law on the Internet isn't a good thing. The fact that the RIAA and MPAA sometimes sue individuals, non-profits, and small start-ups that don't have the money to hire competent legal counsel doesn't help. Default judgments and legal mismatches don't make good law.
Until someone else steps into the fray though, we can at least say thanks to the RIAA and the MPAA for advancing the issues. You may not like the outcome, but certainty counts for a lot.
Bret A. Fausett is an intellectual property and Internet attorney with Hancock, Rothert & Bunshoft. You can reach him at [email protected].
