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 COLUMN
The 'sharing' debate: When source code is outlawed, only outlaws will have source code EVEN THOUGH THE Microsoft trial is on hiatus until the U.S. Supreme Court decides who's going to hear the appeal, legal junkies have had plenty of entertainment with the latest developments in what I like to think of as the courtroom equivalent of the Barbary Pirate Wars. (Two-hundred years ago, the infant U.S. Navy sailed against North African pirates. The effort accomplished little, but provided the Marines with an excuse to sing about the shores of Tripoli.)
PARC's assessment indicates that 25 percent of Gnutella's users are hosting 98 percent of the music files. Even more telling is that in the 24-hour period that Xerox researchers used to take a data sample at least 70 percent of Gnutella's users were sharing no files at all. I thought "sharing" was what Gnutella and Napster were all about. If 50 percent of Gnutella's music is provided by 1 percent of the hosts, then it's probably safe to assume that the Recording Industry Association of America (RIAA) has a case against somebody. Gnutella's distributed architecture will slow down the lawyers, but enough subpoenas may eventually be served to cripple it. The trial of Eric Corley (a.k.a. Emmanuel Goldstein, publisher of 2600 magazine) for posting the DeCSS utility in a published article, reveals a glaring contradiction in 1988's Digital Millennium Copyright Act (DMCA). DMCA explicitly allows for "fair use" of a copyrighted work but disallows the reverse engineering of a protection scheme, which is where the DeCSS case seems to fit. These provisions are in Title 17, United States Code, Sections 107 and 1201(a). This contradiction became relevant a couple of years ago when people using Linux found they couldn't play DVD-based movies on their computers. The Motion Picture Association of America (MPAA) uses a protection method known as Content Scrambling System (CSS) to render DVD movies unusable without a licensed DVD player or equivalent software. Unfortunately, no licensed Linux-based DVD player was available then. Norwegian teen Jon Lech Johansen and two unnamed associates produced a Windows-based tool to read CSS-protected DVDs: DeCSS. He claimed at the time of DeCSS' creation, the Linux file system did not support DVDs, forcing him to use a PC running Windows as an intermediate processor. Johansen published the executable program, but not the source code, on his Web site in September 1999. In November 2600 posted DeCSS. DeCSS allows users to store DVD movies as unscrambled MPEG files and uses a revoked key to unscramble the content. The MPAA sued Corley/Goldstein and 2600, citing violation of the reverse engineering provisions of DMCA. He cited the fair use provisions of DMCA, the First Amendment, and court decisions that equate code with speech. The MPAA recently got a New York federal judge to see its side in a decision that likened the link to DeCSS with a terrorist act. I have a hard time seeing the parallel between publishing code and political assassination. But Corley/Goldstein is a familiar figure in the courtrooms of the U.S. District Court for the Southern District of New York. The judge took note of the many times that 2600 has stood accused of piracy and, successfully citing the First Amendment, has gone free. Now don't take me for a raving Bolshevik. DeCSS is used for stripping DVD movies of their protection and allowing them to be copied as any other MPEG file and is clearly in violation of 1201(a). Although Johansen and company's method hasn't led to any documented cases of piracy, obviously they would have done better to have implemented a pure Linux solution that didn't involve reducing protected materials to open files. Meanwhile, Gnutella and Napster stretch the concept of fair use beyond all recognition. When I was in college, sharing was a one-to-one concept. I'd bring a six-pack and some blank tapes, and I'd walk out of my friend's apartment with the latest Grateful Dead concert. Now it seems the amount of free content available on the Internet has convinced some people that everything is or should be free. I believe that much of the rhetoric tossed around is emptier than a vacuum, but there is little question that when push comes to shove, the courts will come down in favor of the rights of property owners, which is, after all, what the founding fathers intended. Senior Analyst P.J. Connolly (pj_connolly@infoworld.com) covers networking and security and should have gone to law school.  RELATED SUBJECTS  Web TechnologiesMORE > SPONSORED WHITE PAPERS 
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