Abstract
The legal proceedings, and subsequent argument resulting from the release of the DeCSS codes on the Internet, has generated a highly visible conflict between the proponents of free software and the Motion Picture Association of America (MPAA). The advocates of the open-source movement claim that source and object codes are a form of expression. They claim that, as such, it is our right to display and distribute that information as we see fit. In addition, they claim that a ban on reverse engineering the CSS encryption scheme is, in effect, a ban on the massive reverse engineering effort in the open-source community embodied by the GNU Free Software Foundation. On the reverse side, the MPAA argues that the DeCSS codes are purely functional and, as such, are not a protected form of speech. This argument tends to refute the analogy between free software and the DeCSS code by saying the GNU project is more analogous to reverse engineering a DVD than it is to reverse engineering an encryption code which is only useful as a tool for stealing copyrighted intellectual property.
This document contains the following sections:
On February 27, 2000, a ZDNet article entitled "Hollywood's War on Open Source" described the DVD Copy Control Association's string of lawsuits against more than 70 defendants who were somehow linked to the spread of the DeCSS DVD decryption as "not only . . . testing copyright law in the digital age -- but also waging war on the open-source culture." The main impetus for this description was a specific lawsuit described in the article in which a student at Purdue University became the target of a lawsuit as a result of his involvement with LIVID: a video and DVD development effort underway for the Linux Open Source Operating System. The Motion Picture Association of America (MPAA) has decided to use the Digital Milennium Copyright Act to stifle open source development and to outlaw the kind of reverse engineering practices which made the open source movement possible in the first place. In doing so, the MPAA is attacking a fundamental belief of the free software movement; the belief that intellectual property is not an intrinsic "right" of all human beings. It is also attacking the Free Software Foundations belief that the open sharing of the creative output of our society is mutually beneficial to all of us.
In founding the GNU Free Software Foundation, Richard Stallman launched a massive reverse engineering project whose intention was to duplicate the functionality of the Unix operating system and the majority of the tools and utilities which ran under Unix. Stallman believed that "the golden rule requires that if I like a program I must share it with other people who like it." In the interest of upholding this belief, Stallman resigned from his position in MIT's AI Lab and devoted himself to a massive collaboration among programmers from all over the world whose stated intention was to "put together a sufficient body of free software so that [we] will be able to get along without any software that is not free."
In his manifesto, Stallman addressed a series of concerns which opponents of the free software movement had cited as reasons why Stallman's project could not succeed. Among those reasons was the effect that distributing software for free might have on a programmer's creative drive. Would programmers still develop new software without the financial incentive which a software license could provide? Stallman replied that:
There is nothing wrong with wanting pay for work, or seeking to maximize one's income, as long as one does not use means that are destructive. But the means customary in the field of software today are based on destruction.
Extracting money from users of a program by restricting their use of it is destructive because the restrictions reduce the amount and the ways that the program can be used. This reduces the amount of wealth that humanity derives from the program. When there is a deliberate choice to restrict, the harmful consequences are deliberate destruction.
The reason a good citizen does not use such destructive means to become wealthier is that, if everyone did so, we would all become poorer from the mutual destructiveness. This is Kantian ethics; or, the Golden Rule. Since I do not like the consequences that result if everyone hoards information, I am required to consider it wrong for one to do so. Specifically, the desire to be rewarded for one's creativity does not justify depriving the world in general of all or part of that creativity.
If we parse this paragraph, we realize that Stallman is not against rewarding a programmer for his or her creativity. He is against the destructive effects which the specific form of that reward can cause in the current system of software distribution and licensing. It is destructive to restrict the ways in which a program can be used because it limits the benefit which we derive from a particular program. It is a small sacrifice to trade one business model for another with the over-arching goal of contributing to society and using one's creativity as a positive force.
Stallman also confronts the issue of whether or not the creator of a program should be able to control his or her own creation. According to Stallman, there is no intrinsic right to intellectual property. The body of legal protections, including patents and copyrights, was intended to help society rather than harm it. These protections were created at a time in which they were necessary to encourage invention and authorship. Copyrights, for exaple, were not created with the intention of restricting how or when a reader can read a book. Stallman claims that in a world where source and object code are easily copied from neighbor to neighbor, the copyright laws which applied 100 years ago without any adverse effects on the consumer are harmful to society. Back then, all books, for example, were produced by printing presses and that was the only means of distributing those books. Today, copyrights prevent us from using software which we could otherwise access. This was not an issue when these laws were devised. Thus, we should not maintain an unreasonable belief in the "right" of intellectual property. Rather we should consider what is best for society and make that our policy. The world is one in which creativity is shared, not controlled, and is used freely by all those who can access it.
How does this apply to the DVD case? One way of interpreting a DVD is as a piece of software, similar to Unix and its accompanying utilities. A piece of software is a creative endeavor, usually sponsored by a small group of programmers often working in a commercial setting. A DVD is exactly the same thing. It, too, is a creative endeavor sponsored by a group of writers, producers, and directors often working in a commercial setting. And just as Stallman believes that we should not restrict access to a programmer's creative output, we should not restrict the public's access to DVD entertainment.
This analogy is confirmed by the courts' interpretation of source and object code as types of speech. In Bernstein v. Dep't of State, the court found that there was no substantial difference between the language of source code and a foreign language. The simple fact that not everybody can interpret or understand source code does not mean that it is not speech. In addition, the court stated that "even if . . . source code, which is easily compiled into object code for the computer to read and easily used for encryption, is essentially functional, that does not remove it from the realm of speech." Thus, the court confirms the notion that code is a means of speech, and the creation of code is a creative use of speech.
This is exactly analogous to an actor's creative expression through the medium of film. Acting is a form of speech and it should be treated in the same way we treat all other speech. If we attack the ability of the public to freely use and enjoy the speech embodied by DVD entertainment, we attack the fundamental notion of free software. The DeCSS technology allows us to share a different form of speech in the same way we share object and source code. Given this setting, the tenets of the Free Software Foundation as set forth in the GNU Manifesto apply equally to DVDs.
Although we may ethically believe that all creative acts should be shared with society, are we then relegating all motivation for creative acts to the realm of selfless social action? The answer is no. Stallman argues that in the case of software there are still a number of ways in which software developers can make a living. He admits that the amount of money generated by the software industry may be less, but this does not mean the industry will go away. Where there is a profit motive, there is a motivation to work. Stallman presents several alternative business models for software development. These include service and support providers, custom programming and porting services, freeware which solicits voluntary contributions, etc. He claims that these will be adequate to support the programming industry.
An industry has sprung up around Linux, the flagship example of today's open source software. The fact that companies like Red Hat and Caldera, whose business model is entirely service-oriented, can generate millions of dollars in revenue is evidence that Stallman is correct. While the Linux industry is far from stable, it is undeniably here to stay. This is evidence enough that profit is still accessible in an open-source world.
Similarly, the movie industry will retain its own avenues to financial viability without the sales from DVDs. Many people will have neither the means nor the desire to illegally copy a DVD. Thus, many people will still purchase DVDs. In addition, there will still be a period of several months in which a movie can only be seen at the box office. Billions of dollars in revenue are generated from box office sales alone (the top five studios alone account for over 500 million in revenue). Surely this money can support the industry and still enrich all those involved. Finally, movie merchandise including posters, action figures, scripts, and other toys will still be a very profitable source of income for the movie industry.
Given that the profit motive for creativity will still exist (albeit in a slightly reduced form), it is clear that treating DVDs as creative speech and opening up access to this speech will only benefit our society just as free software has. In addition, analogous to the fame and notoriety which is accorded to the early developers of the free software used by thousands of computer-users around the world, actors, actresses, writers, directors, producers, etc. will still become famous for their work.
It is dangerous for us to begin to draw lines between different types of speech. If we believe that software is speech and we believe that software should be freely distributed for the benefit of society, then we believe that all speech should be freely distributed for the benefit of society. DVDs are a form of speech equally creative to a large piece of software. Both require time, money, and effort on the part of their creators, and both can provide huge benefits or conveniences to society as a whole. We must embrace our new found ability to distribute information from neighbor to neighbor while recognizing that the creative impulse can still thrive in a society in which our collective creativity is shared. It is time to awaken from the myth that intellectual property is a fundamental right. If we do not, we threaten the very existence of the free software project and we harm our beloved society.
DVDs: a Protected Creative Act
The Free Software Foundation, in its founding manifesto, claims that software is a creative act, and, as such, it should be shared freely with society. The claim is that the benefit to society of sharing software far outweighs the cost of lost revenue to the programmer's whose creativity has built this software. While this argument may apply to software, it certainly does not apply to DVDs. The DVD is a form of speech which is created with the intent to sell. It is not useful to its creators in any other capacity. In addition, the highly centralized, organized effort which is required for a successful movie project is fundamentally different from a software project. A movie cannot succeed as a night-time hobby or a secondary source of income. To all of those involved, the movie will occupy all of their time and all of their effort. In addition, the movie is tied to the studio. While software can be shared through remote access servers, and conversations regarding software development projects are easily carried out over e-mail or newsgroups, movies must be created in a studio. This places a limit on how, when, and where the form of speech embodied in a movie can be created. It also creates a very high financial barrier to entry into the movie industry; a barrier which would never be crossed without the appropriate profit incentive.
In arguing for the free distribution of software, Richard Stallman suggests that it may still be possible to earn a decent living from the creation of software without actually selling the software. In the position paper presented in favor of the free distribution of DVDs, an analogy to free software is drawn, and, as part of the analogy, the author suggests that the movie industry would still be financially viable through box office sales, merchandise, and other forms of movie-related sales. This statement is in stark contrast to the reality of the movie industry as explained by Jack Valenti, head of the Motion Picture Association of America (MPAA). According to Valenti:
[The movie industry] sits on a fragile fiscal bottom. Creating, financing, making and marketing a truly fine film is very expensive, frustratingly complex, and completely alienated from certainty. Only one in ten films ever retrieves its investment from domestic theatrical exhibition. That is why each film on leaving the theater must journey through sequential market arenas, Home Video, PayPerView, Premium cable channels, Basic cable, Free television and the International marketplace, in order to try to break even or make a profit. Four out of ten movies never get their money back.
The rough numbers Valenti presents are surely evidence enough that the movie industry cannot survive without the revenue generated by Home Video, PayPerView, and DVD sales. Proposing an economic model where DVDs are traded and copied freely over the Internet is ridiculous and untenable.
This does not mean that the movie industry is opposed to the Internet. Opposition to the Internet and opposition to theft are entirely different. According to Valenti, the movie industry is actively "designing Business Models whose objective it is to make available on the Internet an avalanche of movies." The movie industry is simply attempting to protect its property. Thus, the debate over the distribution of the DeCSS codes has nothing to do with free software. In its position paper in response to 2600 magazine, the MPAA points out that if someone were to develop a key which could unlock the door to every house in America, nobody would argue that the key should be distributed freely. The situation with DVDs is exactly analogous. All of the participants in a movie project are making an investment in that movie, and when the movie is complete it is their property. The idea of the Copyright was proposed in the U.S. Constitution with the explicit intention of treating the products of one's intellect just as one's home or one's automobile. If we are in favor of protecting the latter two with locks, then we are necessarily in favor of protecting the former in similar fashion.
To further rebut the analogy between free software and DVDs, we dispute the fact that the DeCSS software is fact free speech, and claim that without this fact it is both legal and beneficial to our society to protect the DeCSS codes. The MPAA brief presented to the U.S. Court of Appeals states that "it is undisputed that the principal function of DeCSS, if not the only function, is to facilitate the decryption and copying of copyright-protected works on DVDs." As such, the DeCSS code is no longer a pure form of speech. Instead it is a form of speech with a purpose. Not only does this remove any legal barriers that would prevent the MPAA from restricting the distribution of DeCSS, it affirms the fundamental difference between the form of speech present in the type of software which is developed and distributed through the open-source model and DeCSS. Open-source software is an act of creativity. While its functions may mimic that of existing programs, the utilities and systems developed are not merely means to an end, they are useful applications all by themselves.
The DeCSS code is not creative in the same way open-source software is in that it does not express a new idea in an original way. All it does, and all it can do, is allow an individual to steal that which someone else has created. The MPAA has entered into an argument which has nothing to do with free software, and the attempts to draw the analogy between the DeCSS codes and the open-source movements are simply ways of rationalizing theft.
The movie industry cannot and will not survive without the revenue it derives from DVD and video sales. While the industry can contain video piracy (it has stabilized at about a 3 billion dollar industry), there is no way to contain DVD piracy through the Internet. The Internet allows instantaneous sharing and copying of DVDs whose quality is equal to that of the original product. The movie industry is one of the few industries in the United States which enjoys a significant export surplus. It also represents approximately five percent of our national GDP. As such, it is essential to our society that we protect these industries. Whether or not the argument that the free distribution of software is beneficial to our society is valid, the argument that the free distribution of movies is beneficial to our society is clearly not. We must protect our intellectual property, or one of our greatest assets as a nation will be lost. We can only protect ourselves with the force of law. Given these facts, the MPAA has every right to pursue those who have chosen to distribute the DeCSS codes or use them for illicit purposes.