Is DeCSS legal?

November 1, 2005 1:45 PM

Is DeCSS legal?

I was just discussing this with a friend and I'm surprised that I can't find a clear answer on the web. In my opinion, the DMCA says it's illegal to circumvent copyright protection mechanisms for the purpose of copyright infringment. But it should be perfectly legal to circumvent copyright protections in order to watch a DVD on your computer, as a fair use of the information. I guess there's also the issue of the MPEG-2 codec, patents, and licensing, but we didn't really talk about that.

Are there any court cases you can point to that show for a fact whether it's legal or not to use DeCSS to watch a DVD?

posted by knave to law & government (12 comments total)

What - you couldn't find this on the web?
posted by forallmankind at 1:51 PM on November 1, 2005

Should have clarified. I'm talking about US laws.
posted by knave at 1:52 PM on November 1, 2005

It might be legal to have, I'm not sure. But it's not legal to distribute it, or link to it, according to the court decision against 2600 magazine.
posted by delmoi at 1:52 PM on November 1, 2005

1201 (a): "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

There are exceptions, but I don't see any generic exemption for circumvention that is not "for the purpose of copyright infringement." What specific clause do you think would exempt your use from 1201 (a)? Exceptions for non-infringing use are allowed by 1201 (a)(1)(B) but must be specifically approved by the Librarian of Congress.

Also, if DeCSS is a circumvention technology as defined in 1201 (b), then it is illegal to manufacture, provide, or offer it to the public in the first place, meaning that you can't legally obtain it.
posted by mbrubeck at 2:02 PM on November 1, 2005

"(B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C)."

I believe that I am "adversely affected" in my ability to make "noninfringing uses" (playing the damn movie) by the CSS encryption on a DVD. Therefore I can legally circumvent CSS. That's my take on it, at least.
posted by knave at 2:06 PM on November 1, 2005

Knave, subparagraph (B) which you quoted applies only to "a particular class of works... as determined under subparagraph (C)," which in turn describes how the Librarian of Congress determines, every three years, which specific classes of works are "adversely affected." Here are the results of the Librarian's 2003 determination. You can use the exception from 1201 (a)(1)(B) only if your use falls under the classes in that determination.

By the way, here is the final decision from Universal City Studios, Inc. v. Reimerdes (the 2600 case), which established that distribution of DeCSS is banned by the DMCA.
posted by mbrubeck at 2:19 PM on November 1, 2005

Ouch. That's ridiculous. Thanks mbrubeck.
posted by knave at 2:22 PM on November 1, 2005

Actually, can you explain this then? Why would the MPAA be going after "trade secrets" (a far more nebulous concept) instead of DeCSS? Note the dates, your 2600 court case is from 2001, this EFF release is more recent.
posted by knave at 2:24 PM on November 1, 2005

Sorry, I meant "instead of using the DMCA".
posted by knave at 2:25 PM on November 1, 2005

Despite efforts to have CSS-protected DVDs named as an exempted class (I actually testified on that behalf during the 2003 proceedings). Basically, because you can still play back a DVD (using proprietary software), make an analog copy, and redigitize it, the LOC considers you to still be able to exercise fair use rights.
posted by Godbert at 3:12 PM on November 1, 2005

You can take a picture of the code and distribute that all you want.

If code that can be directly compiled and executed may be suppressed under the DMCA, as Judge Kaplan asserts in his preliminary ruling, but a textual description of the same algorithm may not be suppressed, then where exactly should the line be drawn? This web site was created to explore this issue, and point out the absurdity of Judge Kaplan's position that source code can be legally differentiated from other forms of written expression.
posted by Wet Spot at 5:37 PM on November 1, 2005

Ok, but if I am handed that photo, and I manually type in the code, compile it, and run it in order to watch a DVD, I am then violating the DMCA. Distribution of the code seems to be different than actually executing the code...
posted by knave at 6:44 PM on November 1, 2005