Legal hacking, or the intent to damage the DVD industry?
Those issues are likely to be front and center in the DVD industry's suit against hackers charged with distributing copy-cracking software.
The DVD industry sued 72 hackers and Web-site authors Tuesday for posting -- and merely linking to -- software that unlocks the system for preventing illegal copying of digital video discs.
The industry's complaint, which seeks an injunction against the offending sites, may hinge on the legal complexities of reverse engineering, a matter of the country's trade secret laws.
"Reverse engineering normally is OK," said Ronald Coolley, an intellectual property attorney at the Houston-based law firm Arnold, White & Durkee.
"The fundamental part of [trade secret] law would hold up in this case, if it's honest and legitimate reverse engineering."
The code in question is a software utility for Linux users. Programmers first created the allegedly illegal software because of the lack of DVD playback software for the Linux computer operating system. A group of Norwegian programmers set out to reverse-engineer Windows player software to figure out how to handle playback, and the utility, DeCSS, was born.
Defendants in the DVD suit say the software, which allows copying of DVDs, was based on legal reverse engineering of the "Content Scrambling System," the core of the encryption scheme protecting DVDs.
"If ... you get your hands on a [legally obtained product] and you reverse engineer it, that's OK," Coolley said. "You could do the same thing by working with a legally purchased bottle of Coke. You just couldn't call it Coke."
Defendants agree with his assessment.
"I think the key ... is going to be whether, one, the info is truly privileged or proprietary and, two, whether it was obtained legally," said Unix administrator Robert Jones, one of the 72 defendants in the case.
"My opinion and that of many others is that it was legally obtained through a reverse engineering process."
DVD industry lawyers wouldn't comment for this story. However, they said in a statement that the defendants distributed the raw code of what is proprietary technology.
"These postings were ... in the form an unauthorized implementation of CSS decryption in computer software," the statement said. They "are an unauthorized use of the trade secrets of the DVD [Copyright Control Association]."
A successful injunction will ensure that the protection plan remains in place and allows the further development of the DVD marketplace, the statement said.
But if defendants are able to show that the code was not unauthorized, but successful reverse engineering, "then the chances of the plaintiff winning here are not too good," Coolley said.
The suit also targets sites that simply provided links to other sites that published the software code. Another point affected by the legitimacy of the action.
"If [the linking was] honest in nature -- i.e. this is something you could use, and you may not have known about it -- then the likelihood of the plaintiff prevailing against honest third parties is not too good," Coolley said.
Many sites -- such as publications who've written about the issue -- have contained links to the code in question. Not all of these are named in the suit. Hacker publication 2600 has reportedly also been notified by the DVD industry over the issue.
So far, Jones says, he and other defendants are standing up to what they believe is an act of legal posturing by the industry.
"Several people have reacted the way I think was intended, which was backing down, getting scared, and pulling [the code] down," Jones said. "But most people realize this is a form of legal saber rattling and an intimidation tactic."
Jones said he received email from 15 people by mid-Tuesday morning who represented new additions to the list of sites that are posting the offending code.
"Attempting to close the barn door is a fruitless effort," he said.
The industry's best chance in winning an injunction may be to convince the court it will suffer heavy financial damages if the code remains available.
In these instances, said Coolley, even if the law was not broken, a restraining order against sites may be issued to defend the financial interests that the industry has at stake.
"Juries and judges may say what people did wasn't so bad, but the harm is so significant that maybe the law wouldn't require an injunction -- but the equities would say the harm to businesses outweighs the law in a way."
But Jones thinks it will be hard to show major financial harm coming from anybody's actions.
"At this point, pirating DVDs is extremely difficult and expensive," he said. "The primary effect of the encryption tech is to enable complete control over DVD market. Furthermore, forms of encryption like this have been proven to not be necessary in the past."
As for mirroring the allegedly illegal information, Jones said the tactic could go either way for the defendants. On the one hand, it may demonstrate the lack of any legal viability in the industry suit.
"From a practical standpoint you lose control over trying to stop [the offense] at its' source."
But the strategy could backfire too, Jones said, depending on whether it's the defendants performing or encouraging the redistribution of the code.
"The industry can say 'See -- they not only harmed us, but then intentionally went out and distributed it as far as possible.'"
