In the last 10 days of August, the Motion Picture Association of America Inc. (MPAA) began sending cease-and-desist orders to people who post or link to the De-Content Scrambling System (DeCSS) program from their Web sites.
Many observers had expected the MPAA to take such action after the Aug. 17 ruling by New York State District Judge Lewis A. Kaplan barring journalist Eric Corley from linking to DeCSS, a program that decrypts DVDs (digital versatile discs), from the Web site of his publication, 2600: The Hacker Quarterly.
The letter informs recipients, as well as their ISPs (Internet service providers), that by offering DeCSS they are violating the injunction and the 1998 Digital Millennium Copyright Act (DMCA).
It also states that the injunction bars "posting on any Internet site, or in any other way offering to the public, providing, or otherwise trafficking in DeCSS and linking any Internet Web site, either directly or through a series of links, to any other Internet Web site containing DeCSS."
The letter's claim that it is illegal to offer DeCSS through a direct link or "a series of links" has raised great concern among some Net users.
"Anything that chills linking is dangerous for the Web," said Wendy Seltzer, a fellow at the Berkman Center for the Internet and Society at Harvard University.
After all, many users point out, the Internet is, essentially, nothing more than a series of links. Eventually, they say, every Web site is linked to every other site, and such an order could fundamentally change the Internet.
The injunction, however, requires that there be intent to circumvent the Content Scrambling System (CSS) in order for links to be illegal. This provision safeguards search engines and the MPAA itself, whose Web site links, through a series of links, to sites that offer DeCSS.
Therefore, people who are using the Internet legitimately need not fear a chilling effect, said Mark Litvack, vice president and legal director of anti-piracy for the MPAA. Jonathan Zittrain, also a fellow at the Berkman Center, agreed, saying that such an effect need only be feared if the MPAA tries to push the ruling too far.
Some Internet users were not as reserved. They see the MPAA as pursuing those without either the profile high enough or pockets deep enough to adequately defend themselves.
"The Yahoos and Googles and AOLs don't have to worry; MPAA won't bother suing them. MPAA's goal is to put the fear of God into the little guys," wrote "Tackhead" on the open source Web site Slashdot.org.
In the MPAA's view, "they're not supposed to be nice just because someone's little (and they're big)," Zittrain said. The MPAA cannot be blamed for its "take-no-prisoners" approach, he said, as it is only acting in its self-interest. "Demonizing the MPAA doesn't get very far."
The MPAA's Litvack discounts the idea that his group is aiming at smaller targets.
"We don't pick who decides to steal; they pick us and we respond. (Big companies) tend not to do much piracy. We go at people who go at us."
But just how the MPAA goes at people has raised some questions as well.
The section of the letter stating that a permanent injunction has been issued against all postings of DeCSS is not true, said the Berkman Center's Seltzer.
The injunction only bars the 2600 Web site from posting or linking, she said. It does not give the MPAA jurisdiction over other posters, unless they are working with 2600, nor does it give them legal standing in states other than New York.
"The fact that the MPAA is using the injunction in this manner is a non sequitur," as it bets that other courts will find the same way that the New York court did, she said.
The MPAA disagrees with Seltzer.
While admitting that the injunction only directly applies to Corley and 2600, the MPAA contends that the law governs everyone. Just because there is no direct order stopping each individual from posting DeCSS does not mean they are exempt from the law, said Greg Goeckner, deputy general counsel for the MPAA.
Laws against bank robbery, for example, are followed even though each individual is not specifically barred from robbing banks, he said.
The MPAA believes that other courts will follow the decision handed down in New York and that Seltzer's characterization of the injunction is "misleading," Goeckner said.
Misleading or not, Seltzer believes the MPAA may be engaging in "scare tactics."
What many DeCSS users and posters may find scary, is the MPAA's demands that ISPs take the following steps:
-- "Advise us of the name and physical address of the person operating this site; and -- "Maintain, and take whatever steps are necessary to prevent the destruction of, all records, including electronic records, in your possession or control respecting this URL, account holder or subscriber."
That the MPAA wants ISPs to preserve all records pertaining to accounts that have offered DeCSS has led some to speculate that those who downloaded the program are next in line for prosecution.
Not necessarily, said the MPAA's Litvack.
It is not the MPAA's current intention to sue downloaders, he said, but rather to use the records to prove that the program has been removed.
Even if the MPAA wanted to sue downloaders, Seltzer said, there would be no grounds to do so.
Until October, when the relevant section of DMCA goes into effect, the use of an encryption circumvention device such as DeCSS is not illegal, only distribution or trafficking in such devices, she said.
Seltzer expects a resolution in the case only after a long appeals process. The defense is hoping that "the Second Circuit or the Supreme Court will see that this restriction on fair use of media doesn't fit with the copyright clause in the (U.S.) Constitution," she said.
That such a case is being pursued, though, highlights a fundamental problem with the laws in this area, she said.
"If what many people think of as natural activities have become criminal, then the law has become out of touch with reality. It doesn't generate respect for the law that so many people see it as illogical or absurd. It is not a stable situation where so many believe the law is wrong."
The MPAA, in Encino, California, can be reached at +1-818-995-6600 or http://www.mpaa.org. The Berkman Center for Internet and Society, in Cambridge, Massachusetts, can be reached at +1-617- 495-7547 or http://cyber.law.harvard.edu.