Property rights

A New York federal judge’s decision that an Internet magazine’s posting of computer code for decrypting DVD movies violates copyright law is being hailed as a major victory for the entertainment industry. The words U.S. District Judge Lewis A. Kaplan used to back up that decision are a victory for all who cherish straight talk and clear thinking:

“Taking what is not yours and not freely offered to you is stealing.”

It doesn’t get much straighter or clearer than that. Or, given the ethically muddled assertions of that portion of the Internet industry that seeks to profit from pirating the intellectual property of writers, musicians and now filmmakers, more welcome.

The particular case concerned software that can crack the code used to prevent the illegal copying of DVD movies. The software was written by a Norwegian teen-ager for his own use. It was picked up and posted by the hacker Web site 2600.com, and soon joined by several other hacker sites. A consortium of film studios sued 2600 and three other sites last year and won a temporary injunction. Barring overturn on appeal, which would require overturn of the entire concept of ownership by the creators of art and entertainment, Judge Kaplan’s ruling makes the temporary injunction a permanent ban.

Together with U.S. District Judge Marilyn Patel’s decision last month shutting down the “music-sharing” service Napster – since stayed by an appeals court – there are signs that the courts are beginning to tire of the Internet industry argument that anything technology makes possible is permissible. Taken together, the cases are the first major test of the Digital Millennium Copyright Act of 1998, which gave broad new rights to copyright holders. Judges Kaplan and Patel obviously understand that the law is based upon a simple concept: Theft, whether committed with a crowbar or a floppy full of code, of property, whether real or intellectual, is just plain wrong.

The defense case was built upon two arguments, the First Amendment and fair use. Judge Kaplan correctly observed that the issue had nothing to do with the free speech rights of software authors but with the dissemination of technology that has a principal function of demolishing copyright protections. Intent matters, the judge said. That a growing number of Internet service providers are blocking access to sites that promote copyright violation suggests that liability matters, too.

Fair use is a legal concept, not a law, that allows those other than the owner of a copyright to use material without the owner’s permission, provided it does not materially diminish the property’s value. It is what allows a person to loan a friend a book, CD, videotape or DVD movie without being sued for copyright infringement. It does not allow a person to engage in wholesale copying and distribution, or to substantially damage the market value of copyrighted material. Fair use is a balancing act. It topples when code is posted on the World Wide Web that makes a copyright worthless.

High-tech copyright infringement has been a major concern of the music business for several years, but it figures that the first truly decisive ruling on this issue would pertain to the movies. Ripping off a band is one thing, ripping off a $100 million blockbuster quite another. It helps, too, to have a judge who knows what stealing is and who can just come out and say it.