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The German physicist G.C. Lichtenberg once said, “A good metaphor is something even the police should keep an eye on.” U.S. District Judge Susan Illston may want to keep that advice in mind as she presides over the latest test of the 1998 Digital Millennium Copyright Act. The metaphors will be flying freely as the motion picture industry seeks summary judgment in a dispute with 321 Studios Inc. over software that allows users to crack — and thus copy — the encryption that protects DVD releases. Illston must decide whether the software is — using the motion picture industry’s metaphor — an electronic burglar’s tool. Or she must accept 321 Studios’ argument: that the software merely allows a user to make a key to a house he already owns. If it were only that simple. As another old metaphor goes, copyright law is deciding whether a horse is more like an apple or an orange. In some respects, Friday’s motion will be a replay of the arguments over the government’s criminal case against Russian software provider ElcomSoft. San Jose-based U.S. District Judge Ronald Whyte refused to find the DMCA unconstitutional last year, but ElcomSoft was later acquitted by a jury. But lawyers for 321 hope a recent U.S. Supreme Court ruling will prompt Illston to give the DMCA even closer constitutional scrutiny in 321 Studios v. Metro-Goldwyn-Mayer Studios, 02-1955. The DMCA — which bars the circumvention of any encryption protecting electronic works — is the scourge of progressive tech-heads and Hollywood’s primary weapon in protecting its creative capital in the digital world. The trouble with translating copyright law into the information age is the fundamental ease with which consumers, and criminals, can copy digital works. Studios fear DVDs will end up posted on peer-to-peer Internet file-sharing networks, undermining the market for their billion-dollar industry. Through its lawyers, St. Louis-based 321 Studios argues that its product merely enables its customers’ exercise of fair-use rights, much like a Xerox machine or VCR. “That’s really the fundamental dilemma of the DMCA and copyright holders, because most studios aren’t generally concerned about making a single fair-use copy,” said Evan Cox, a partner at Covington & Burling in San Francisco who isn’t involved in the case. “They’re just worried about the multiple copies that go up on the Internet.” 321′s lawyers, including John Keker and Daralyn Durie of Keker & Van Nest, filed suit seeking a declaratory judgment after being threatened with prosecution. At Friday’s hearing, 321 hopes to beat back the studios’ summary judgment motion and put its case before a jury. “It’s important because the studios are pushing an extraordinarily expansive interpretation of the DMCA,” said Durie, one that would “prohibit actions that have always been understood to be fair uses.” In 1997, the DVD industry introduced Content Scramble System (CSS), a supposedly impenetrable encryption on DVDs aimed at preventing copying. The code was cracked by a 16-year-old Norwegian boy, who was later charged with criminal violations by Norwegian authorities. The case is on appeal. The boy’s simple program, DeCSS, was explained and linked to by the online hacker site 2600 magazine. 2600 was sued by the movie studios in a case that made it up to the Second Circuit U.S. Court of Appeals, which upheld an injunction against the magazine. That case will be placed front and center by the movie studios. Also under scrutiny will be U.S. v. ElcomSoft, 203 F.Supp.2d 1111, Judge Whyte’s ruling in the celebrated case involving software that broke the encryption protecting Adobe Systems Inc.’s e-books. Both are post-DMCA cases. 321 Studios will likely rely on pre-DMCA cases, arguing that consumers’ fair use rights must be protected because the software has substantial, non-infringing uses. But there is one post-DMCA case that Durie says helps 321 Studios, and it was decided after both the ElcomSoft and 2600 cases. On Jan. 15, the Supreme Court decided Eldred v. Ashcroft, 123 S.Ct. 769, a case over whether Congress could extend copyrights to 70 years after the author’s death. Opponents had argued that the extension violated the “limited times” restriction of the Copyright Clause. The Supreme Court held that it did not, but it also wrote that the copyright law is not “categorically immune” from First Amendment analysis, as a lower court held. Durie hopes that will prompt Illston to closely scrutinize the DMCA. In the new version of its software, 321 Studios does seem to be making an effort to restrict unlawful uses. Once a copy is made, the copy on the user’s hard drive — the one that can be easily uploaded to the Internet — is erased. The resulting DVD is also encrypted, so 321 Studios software users cannot copy it again. Users are also warned repeatedly about copyright laws, and the company has even offered a reward for information about the illegal use of its software. Hollywood isn’t satisfied. “What they say is illusory,” said Patricia Benson, a partner at Mitchell, Silberberg & Knupp in Los Angeles and a lawyer for the movie industry. She calls the measures “bells and whistles” that don’t afford real copyright protection. For example, she said, a sophisticated user would be able to locate a temporary copy of the DVD stored on the computer’s hard drive and copy it. In many ways, the horse is out of the barn. The DeCSS program is widely available on the Internet, and users can make pirate copies of any DVD. Despite legal injunctions, many sites sell T-shirts with the outlaw code printed on them. Until the studios obtained a sealing order, the code was even available in a case file at the Santa Clara County Superior Court. To the studios, though, it doesn’t matter how easy it is to obtain the encryption-cracking code; circumvention is circumvention, they say, and it is clearly barred by the DMCA. Durie disagrees. “The DMCA only applies to technological measures that are effective. I think there is a question whether CSS is effective.” But lawyers for the studios say technology alone, no matter how advanced, can’t provide adequate protection from piracy. “People are so sophisticated these days, anybody can crack any encryption scheme,” Benson said. “In the real world, I’ve never heard of something that somebody can’t eventually break.”

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