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Moving Pictures - The DeCSS case

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September 29, 2000

Only a week after the Motion Picture Association of America won its DeCSS lawsuit, one of the association's own members committed a DeCSS offense. CNN.com, which is owned by Time Warner, put up a story (syndicated from LinuxWorld) that included a link to DeCSS mirrors—even though the MPAA's lawsuit had explicitly prohibited hacker zine 2600 from doing the exact same thing. The offending link was removed from CNN.com in a matter of days, but not before a number of sites pointed it out, and dutifully recorded screenshots for posterity's sake. The fact that CNN could break the law while simply doing its journalistic legwork highlights just what the MPAA's opponents had been arguing all along: that the ability to link is a free-speech issue. Even among those who still believe in the arbitrary principle of copyright, most would concede that a link is simply a reference to another site, not a collusion with the referent's possible sins.

Yet the MPAA's venal lawsuit may contain a sliver of truth. Open an HTML file in a text editor, and a link will appear to be nothing more than some text with markup tags (also in text) wrapped around it. But view that file in Netscape Navigator, and the text gains that familiar blue underline, becoming a bona fide software function as usable as the trash can or the Undo command. DeCSS itself shares this mixed status of part expression, part tool. On one hand, it's meaningless, harmless text: DeCSS supporters have propagated it by printing it on T-shirts and embedding it in GIF files. On the other hand, it's a chunk of highly useful software that has helped create a budding DVD-ripping movement—a movement that threatens to Napster the film industry once enough home users get broadband.

At the heart of the DeCSS case lies the Enlightenment-era distinction between word and deed. Although modern democracies are supposed to tolerate unpopular speech, they're under considerably less obligation to tolerate objects that they believe can have a negative social effect, such as handguns, cocaine, or unsafe children's toys. Society has gained much from this division, distinguishing between dissent and treason, thereby allowing science and democracy to flourish. But code is confounding the word/deed dichotomy—and it may one day transform the distinction from a universal principle of modern political thought to an obsolete political fiction.

Perhaps we should've expected this all along; there has never been a human invention more pregnant with asserted meaning than the computer. After all, these machines are simply huge codices of an alphabet written in 1s and 0s—an alphabet that only means something when the machine is told to interpret it in a given way. (In retrospect, Marshall McLuhan's dictum "The electric light is pure information" seems shockingly canny: A lightbulb, let's not forget, is a device with two discrete states, just like the trillions of switches flipping on and off in your computer's RAM.) Software differs from a steam engine or an inclined plane in that it doesn't have to obey the rules of physics or chemistry. It simply has to obey the rules set down by the people who designed the operating system, the programming language, and the network protocols. If a computer can be considered a virtual universe, it is a universe with human hands all over it.

Which is why the MPAA lawsuit must be filling cyberpagans with a certain knowing glee: It's an argument for the growing power of code, and the possibility that the word is becoming magical again. As writer Julian Dibbell noted, "The commands you type into a computer are a kind of speech that doesn't so much communicate as make things happen, directly and ineluctably, the same way pulling a trigger does." In the form of code, words can once again become controversial, powerful, dangerous. Words are regaining their incantory power, and the first sacrifice of the new magical order will be the empires of intellectual property. All they'll have to do is become indecipherable first.