FEED: What's the evaluation process when you decide to take on a case
like this?
GARBUS: I think you decide based on the significance of the case: What
are the values that get involved? What are the social values? Why is it
worth spending the time and energy? And it seems to me what this case
basically deals with is balancing First Amendment values -- the right to
an open Internet, the right to free speech, the right to the
preservation of fair use with software materials -- against the claims
of the people like the MPAA that permitting fair use just allows for
piracy and the bringing down of their industry. I think it's the
question of how you achieve that balance, protecting the
artist/publishers who are entitled to be paid for the work that they do,
while on the other hand making sure that other people can use what is
appropriate for them. It's a balancing act.
I also think what the case will probably deal with or will affect is how
the entertainment business or how the media business will change because
of this new technology. Generally what happens is the law sets up a
cage under which the technologies operate. Here the technology is
outstripping the law, and the law is going to have to adjust somewhat to
the technology. Law is based on two hundred years of precedence, and I
think the precedent is the structure, and I'm not so sure that that
structure can handle these demands. So the question is how do you build
new structures, and what are those new structures going to be. And this
is going to be the first case to define those.
FEED: How would you distinguish the DeCSS case from the Napster disputes
of late?
GARBUS: The most important difference is that there's been no piracy
that they've found through the use of the DeCSS. There are a lot of
reasons why that's so: because it takes so long to download, etc.,
etc. Now, if there's no piracy, there's absolutely no reason why
this DeCSS shouldn't be discussed, explained, posted. If, in fact,
there was substantial piracy coming from it -- or the potential for
enormous piracy -- then one might come to a different conclusion. But
clearly here, based on all the testimony to date, there has to be a
better balance. There was a case here -- the Betamax case -- where the
movie companies came in, and they said you shouldn't have VCRs. You
shouldn't be able to copy movies that come off TV because that's an
infringement. And the court said, "Yes, it may be an infringement. The
question is, is it a substantial infringement, and what are the other
values that it serves by permitting that infringement?"
The other thing this case is about, which is very interesting to me, is
that it's kind of going to be an Internet legal trial in the sense that
some of the people on the Internet and some people who deal with the
Internet are very interested in this particular trial -- and every
document, witness's word, judge's ruling, and lawyer's call will be on
the Internet within a day. Now, a federal court -- such as this court
with Judge Kaplan -- is closed to cameras, but can't be closed to the
Internet. There's going to be this extraordinary high-stakes battle for
the control of the Internet on the Internet. In the sense that O. J.
Simpson was the first TV trial, this becomes in a peculiar way the first
documented Internet trial.
FEED: Now, tell me if I'm getting this correctly. It seems to me that
there are three layers to free speech elements of this case. There is
the fair use element, which is that the technology itself enables people
to take small samples from DVDs and "quote" them effectively in their
work. There's the right of the cryptography community to discuss
techniques of getting through encryption schemes in some kind of public
way. And then there's also a question, if I understand it correctly, of
people linking to pages where these things are discussed.
GARBUS: Exactly. Right now the MPAA has got an order from the court
which makes it possible to stop the posting of the DeCSS. The MPAA has
now made a motion to expand the injunction to include linking. Now, the
New York Times has talked about this case on its Web site. The
New York Times has linked when it talks about the right to carry
the DeCSS. Under the logic of this case, if you ban linking, you can
stop places like the New York Times from doing that. The
Associated Press, both in its pieces of paper and its Web site, has also
referred to linking sites. Now, the New York Times is allowed to
say that crack is being bought on 120th Street -- a different kind of
linking -- without being told that it can't say that because it's going
to be a participant in the crime that ultimately occurs. So I think the
linking and posting, while separate issues, are related. If you now
went to the Disney Infoseek site, you would find references to DeCSS --
you would get through that site the exact thing that Disney's trying to
stop in this suit. You would find that the search engines that are owned
by these very plaintiffs do exactly the same thing that they're trying
to stop. They link. What the MPAA is doing is trying to stop certain
people from linking.
FEED: It seems to me like this has been an issue from the early days of
the Web: Linking itself as a technology has challenged a lot of our
assumptions about the legal status of copyright and free speech, and so
on. And we've still not figured out how to handle it.
GARBUS: Right. I think nobody has quite figured it out. What happens if
you link into the Coca-Cola code, and you know that everybody can get
that secret formula? Is Coca-Cola entitled to protection? We do have
trade-secret laws. My estimate is that there probably have been three
hundred thousand downloads of the DeCSS now in the United States. Now,
once that's out there -- putting aside the question of whether it should
be out there -- how do you put it back? How do you enforce trade secret
laws? A different legal system is going to have to be constructed to
deal with these issues on the Web. And this case is going to play a
large part in that construction.
FEED: Is there a case from your past that this most resembles, or does
it seem very different because of all the technological issues?
GARBUS: I think the technology makes it really different. Take the
matter of operating systems -- there's another and very separate issue
that you have with the Linux operating system. One of the reasons that
there's so much interest in the DeCSS is that DVDs are not yet
licensed to play on the Linux operating system. Now, to bring us back to
the Betamax case, is Linux like a VCR? Can the motion-picture industry
control distribution from the very beginning to the very end? Maybe the
only platforms that can play DVD are those that pay the licensing fees.
Or can you have other systems? Is that a violation of antitrust? Years
ago, they made the motion-picture studios give up their control over
theaters because they found it was a violation of antitrust. There are
similar issues here.
FEED: Obviously the objection in terms of the piracy question is that
the technology and the bandwidth is expanding so fast that in a few
years software like DeCSS will enable widespread piracy. I mean, you
look at the case of Napster -- three years ago, what goes on now with
Napster and audio files was impossible because downloading a three
megabyte file was ridiculously slow over a 14k modem. But now it takes
thirty seconds.
GARBUS: I think that this process of copying data will always be longer
and more expensive than traditional pirating methods. But one really
can't project out until the end of time. Let's assume that at the end
of the year, one percent of the total piracy is caused by the DeCSS, and
let's presume that the discussion is there are First Amendment values
with respect to the discussion of the DeCSS. How do you balance that?
Now, in the Betamax case, the court did balance it. They said there
will be infringements, but we don't look upon that as substantial
infringement. We don't look upon that as infringement sufficient to
override, let's say, a fair-use defense. So I don't rule out the
possibility of piracy. I know enough now about the way things are
copied to believe that, no matter how good the machinery ever got, there
would be faster and more inexpensive ways. But as of today, nobody that
I have spoken to can claim that any particular movie that was ever shown
on the Internet ever came off a DVD, and nobody is even claiming that.
But in the end, I think Napster was too difficult a case for the court
to accept at this time. Our case may be too difficult for the court to
accept at this time. Piracy has a very large and powerful meaning. In
the Rio case, a witness testified about the negative and positive effect
of piracy. I don't think anybody believed it. No one wants to hear
it. In the Napster case, there was -- if you want to use that word --
piracy. People were downloading files; you had ten million criminals. I
think the problem is with the DeCSS if you have ten million criminals,
what do you do then? And the other issue is how quickly the copyright
holders have to move. Look at what happens in something like this MPAA
case: A small group of people find out about these potential
violations, and they bring a lawsuit. And then there's an extraordinary
proliferation. Probably if the MPAA had left it alone, fewer people
would have heard about it. If the MPAA weren't claiming that you could
make these wonderful copies, that people were making copies, then I
think most people would have left it alone. So I think that what this
case may teach the MPAA and other copyright holders is that you can
exacerbate a situation by trying to stop something that really is not
affecting you.