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Is CSS Finnished? - May 29, 2007

The gulf in legal and political attitudes toward the use of DRM between the U.S. and the EU continues to widen.

While most of America was heading out for the long holiday weekend Friday, a district court in Finland ruled that CSS, the encryption system used on commercial DVDs, no longer qualifies as an “effective” form of copy-protection as defined by Finnish copyright law, and therefore circumventing it is legally permissible.

A defense attorney in the case, Mikko Välimäki, posted an English language translation of the ruling  and statement about it on his blog. He also provided a five-page analysis of the ruling and its possible implications, including his suggestion that its logic could eventually apply to other copy-protection systems, such as the AACS system used on Blu-ray and HD DVD discs.

Here’s the core of the ruling:

"By virtue of the testimonies of [two expert witnesses], it has been reliably determined that once a Norwegian computer hacker succeeded in breaking the CSS protection for DVD discs in 1999, the situation from an end user’s viewpoint has changed so that similar circumvention software is available from the Internet in dozens, even free of charge. Some computer operating systems even have such a program pre-installed.

"From the viewpoint of copyright holders, [the defendants’] conduct described in the charge cannot be considered to have caused any slightest “gap” in CSS protection compared to the circumstances already existing. CSS protection can no longer be considered an effective technological measure referred to in the law… Therefore the charge must be dismissed."

The court’s logic is notably circular: Since CSS is easily hacked, it can no longer be considered “effective” under the law, and therefore can be legally hacked.

Presumably, if it were still a challenge to hack, than hacking it would still be illegal.

That logic may not hold up on appeal (prosecutors have until Friday to decide whether to pursue that option), but it reflects the increasing divergence of views in Europe and the U.S. regarding technical protection measures.

Like a number of EU countries, Finland’s digital copyright law took language directly from the EU Copyright Directive, translated into the national language.

The Directive was issued in 2001 and was intended to bring a measure of consistency to member countries’ implementation of the WIPO Copyright Treat (implemented in the U.S. via the Digital Millennium Copyright Act).

It requires member countries to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used to control access to copyrighted works.

But it then goes on define a technical measure as “effective” where “the use of a protected work… is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work… or a copy control mechanism, which achieves the protection objective [emphasis added].”

The Finnish court relied on a very narrow reading of that last part.

It reasoned that since CSS no longer achieves the objective of preventing copying of DVDs; the law no longer can provide “effective legal remedies” to its circumvention.

In its ruling in the DeCSS case in 2000, however, the U.S. Second Circuit Court of Appeals explicitly rejected the identical argument.

“[T]his is equivalent to a claim that, since it is easy to find skeleton keys on the black market, a deadbolt is not an effective lock to a door,” the court wrote, in what is still the most authoritative ruling on the issue. “It is evident to this Court, as it has been to previous courts, that CSS is a technological measure that both effectively controls access to DVDs and effectively protects the right of a copyright holder.”

The danger for copyright owners is that many EU member countries have language on the books that is identical or nearly identical to Finland’s. And given the growing skepticism toward DRM in general throughout Europe, the narrow reading of the EU Copyright Directive could easily catch on.

Were that to happen it would further sink U.S. content companies’ hopes of making the DMCA a model for the rest of the world.

 

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