Intellectual Property


May 19, 2001


BROOKE GLADSTONE: Chances are you haven't been following the intellectual property issue known as the De-CSS case through the Second Court of Appeals. Now bear with me here. The outcome could affect the way you watch movies at home and civil libertarians say that the wrong decision could seriously damage free speech. Here to take us through the intricacies of the case is NPR's cultural correspondent, Rick Karr. Rick, welcome to On the Media.

RICK KARR: It's great to be here Brooke.

BROOKE GLADSTONE: So the way that intellectual property cases are breaking out right now I guess that it roughly falls into two camps: the minimalists and the maximalists. How do you define them and how do they differ?

RICK KARR: A copyright maximalist is someone who believes in really strong copyrights; that the law should provide for penalties for people who make copies of books or music or movies without the permission of whoever owns the copyright. The copyright minimalist point of view broadly is that people have always been allowed to make some copies for really socially beneficial reasons and that copyright law should be constructed in such a way that people can continue to make those copies and not be subject to legal sanctions on account of it or subject to having to pay to do that.

BROOKE GLADSTONE: So take us through the -- this is a case that's currently very much alive -- the De-CSS case which is about DVDs.

RICK KARR:This has to do with something that's part of the technical standard for a DVD. When the consumer electronics industry and the movie industry got together to create the DVD format, they were worried that if they put movies out in a full digital form, you could just pop it into your computer and copy it onto your hard drive. I mean that's one of the things that computers are designed to do --they're designed to just copy huge amounts of data. So you could copy it on to your hard drive and then e-mail it to a friend or put it up on a web site so that somebody could take it. And they said we, we have to find a way to stop this.

BROOKE GLADSTONE: And so they encrypted that information that was on the DVD.

RICK KARR:That's essentially what they did, is they encrypted it. The other thing they did though is they went to Congress in 1998 as part of the Digital Millennium Copyright Act and they asked for a part of the law that says if you break through this, you are in violation of the law and we can go after you. Now you enter a bunch of people in the Linux programming community -- those pesky open-source software people -- and what the open-source software people were saying is we want to watch DVDs on Linux computers, but because Linux is open-source, the movie industry and the consumer electronics industry won't give us the key that de-crypts the DVDs. They figured it out on their own. They wrote a piece of software that allows that encryption to be stripped off a DVD solely for the purpose of watching it on a Linux computer. A magazine called 2600, subtitled The Hacker Quarterly, reported on this and posted the source software code to its web site. The movie industries went ballistic! They said you can't do this! You're violating the Digital Millennium Copyright Act. You're-- [BOTH SPEAK AT ONCE]

BROOKE GLADSTONE: But they were! They were!

RICK KARR:Eric Corley [sp?], the publisher, however says I'm a journalist. I'm reporting on something that is in my bailiwick. Other mainstream news-gathering organizations published it. They weren't sued for it. His attorneys asked why is that the case? So Eric Corley's supporters say in general the law restricts free speech. But they also argue that it restricts the free use of culture and by that I don't mean whether or not you pay for the culture. I mean how freely can you use this? For example: this same encryption system allows a movie studio to put out a DVD with commercials on it -- and the encryption system will disable the fast-forward button on your DVD player if it's so instructed. So the commercials come up and you can't fast-forward past them. This rankles a lot of people in the copyright minimalist camp who say once I buy a piece of culture, whether it's a CD or DVD or a book, I should be able to do with it as I see fit. As long as I'm not trying to take your market away from you, copyright owner, I should be able to do as I see fit.

BROOKE GLADSTONE: Now it strikes the casual observer like myself that anybody who breaks an encryption with the intent to copy is a pirate!

RICK KARR: Have you ever made a cassette tape for a friend of yours of a record you really like?

BROOKE GLADSTONE: Yup.

RICK KARR: Have you ever photocopied an article out of the New Yorker to give it to a friend?

BROOKE GLADSTONE: Yup.

RICK KARR: Have you ever borrowed a book from a library?

BROOKE GLADSTONE: But I've never mass-produced any of those things, and with a computer you can.

RICK KARR:The way the minimalist would respond to that is by saying the law should not assume that we're all pirates and that we're all out there to make a lot of copies of stuff and give it away and take their business away. Ha ha record industry says Napster. Ha ha movie industry says the people who wrote De-CSS. No! They want to be able to use stuff the way they say they've always been able to use stuff and they think that the law is slanted against them.

BROOKE GLADSTONE: Before we finish up here, where is the De-CSS case now -- the DVD case?

RICK KARR:The Second U.S. Circuit Court of Appeals heard the arguments on May 1st. Those judges have asked attorneys for both sides to submit written answers to some specific questions that they had, and those answers are due later this month and then the judges will decide when the judges [LAUGHS] decide.

BROOKE GLADSTONE: Rick Karr, thank you very much.

RICK KARR: Pleasure to be here, Brooke.

BROOKE GLADSTONE: Rick Karr is a cultural correspondent for National Public Radio.