Killer Code.

• Author: Taylor, Jeff A.
• Position: Case against DVD player, computer program - Brief Article

The First Amendment, fair use doctrine, and common sense were all casualties in the most recent decision in the Motion Picture Association of America's case against a DVD player for Linux operating systems.

In August, U.s. District Judge Lewis Kaplan found no legitimate purpose for the DeCSS program, which allows viewers to decode DVD movies and play them on computers. Kaplan fully accepted the MPAA's assertion that it was a pirate's tool and nothing more.

Further, the judge held that anyone who directly linked to the DeCSS program or described it in enough detail to allow others to reproduce it would be violating copyright law.

The court's one concession to the defendants: Kaplan ruled that the Web site which posted information on a program that could defeat copyright protection for DVD movies did not have to pay $4 million in plaintiffs legal fees.

The implications of Kaplan's decision are immense. He expressly found that writing computer code isn't like speech, which enjoys broad constitutional protections. Kaplan evidently believes that code is more like witchcraft, with dangerous, mysterious, and unpredictable powers.

"Society must be able to regulate the use and dissemination of code in appropriate circumstances," Kaplan wrote. "The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact." So code's capacity for evil, in Kaplan's view, requires strong state safeguards.

How strong? On par with those designed to thwart assassins. "Computer code is not purely expressive any more than the assassination of a political...