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I do assume that you know about DeCSS - what it is and that there are still two large lawsuits moving slowly through US courts. I want to provide a short history of the DeCSS afair and then move on to background information about the organisational side of the story - why do we have the DMCA in the USA today and will soon have a similiar law in Europe? I will try to break open the shell around the various organisations involved and show who plays which role on the stage. And most certainly there will be more questions than answers.

A short introduction on my person. I am one of the named defendants in the first DeCSS lawsuit, the one in California by the DVD CCA. I was the one who set up the decss mailing list where we organised the defense in the early days. It was a closed list, for defendants only, so you may never have heard of it, but it did make a lot of a difference. Today, my website lemuria.org is Google's #1 hit for the word "decss".
I have, in short, been involved in this for quite some time. And during those 20 months, a lot of material has been collected by the members of first the decss, then the dvd-discuss mailing list and various other activists.

DeCSS History

I set up my DeCSS mirror in November of 1999, about a month after DeCSS had first been published on the web. CSS had by then existed for more than 3 years, and DVD piracy was already widespread, as reports from the International Intellectual Property Alliance prove. Those pirates did not need nor care for DeCSS - they simply made identical copies, including the "copy protection".
Nevertheless, as you all know, DVD CCA, the licensing organisation for the CSS license, sued everyone and his dog on December 27th, 1999. The MPAA joined with their own lawsuit against 2600.com on January 17th, 2000.

The California lawsuit is about trade secrets and has received only limited media attention compared to the 2600 suit. Most likely because only the MPAA has brought up the Digital Millenium Copyright Act - the dreaded DMCA. Still fresh from the presses, the DMCA had only been enacted in 1998 and parts of it had just went into effect on Janury 1st, 2000.


Now Europe is getting its own DMCA. An EU Directive has just been passed, which means the EU member countries will now have to enact national legislation as required in the directive. Many european DMCA-like laws.

Both the US DMCA and the European Copyright Directive go back to the TRIPS and other WTO agreements. Both WIPO and WTO are not exactly in the spotlight of the media, and their history and purpose is not general knowledge. Here is a quick overview of these two organisations:

The main bodies of WTO's work so far have been the 1996 Copyright Treaty and the 1995 TRIPS Agreement which marks its foundation. WTO deals heavily in so-called "Intellectual Property" and is heavily involved in the Hague Convention which has been critizised heavily by RMS and others, including myself.
The TRIPS Agreement remains at the core of WTO and is so far the only proscriptive rule, i.e. it tells member countries what they must do, while all other rules merely limit what they may do. TRIPS provisions must be enacted into national law within one year, with longer times for developing, ex-communist or 3rd world countries.

WIPO, on the other hand, started out as a body administrating international treaties, and has grown quite considerably from its humble beginnings as the "United International Bureaux for the Protection of Intellectual Property" (called BIRPI after the french name). Its focus is still exclusively on "Intellectual Property", specifically copyright, trademark and patent laws.

In short, WTO is the body which sets the rules, while WIPO is more of an administrative organisation.

Both the DMCA and the current European Copyright Directive go back to the TRIPS agreement, and therefore this piece of legislation is required of the TRIPS members. However, there is nothing in TRIPS that forces them to enact these laws, and the harsh anti-circumvention rules are not required by TRIPS, but the result of careful and very intentional lobbying.

DVD and CSS License

The CSS license is one of the first commercial agreements to take explicit advantage of the DMCA. Even its timeline coincides nicely with the preparations and then passing of the DMCA.
We know that the number one purpose of the CSS license is to tie in the weak CSS encryption with the DMCA rules against circumvention because we have a WIPO document from a workshop by one Time Warner Analyst and a DVD CCA lawyer that outlines in surprisingly plain words what everything is about:
"Current efforts at building copy protection structures have demonstrated the need for a three-pronged approach. The first prong involves the development of technical protection measures and the making available of such measures on reasonable terms. The second prong consists of laws that support protection technologies and prohibit the circumvention of such technologies. The third prong involves cross-industry negotiations and licenses of technical protection measures."
Even the main point of the Anti-DMCA resistance - namely that the law outlaws devices instead of conduct, that it makes knifes illegal instead of punishing murder - has been taken into account:
"For several reasons, a "conduct only" approach is insufficient."
The Global Business Dialogue on Electronic Commerce, yet another member of the ever-expanding cast-list, specifically recommends that national law should prohibit devices, too, even though the treaties do not require doing so.

The CSS License

The roughly 70 pages of it are available on the DVD CCA webpage and in court records. However, this appears to not be the end of the story. There are a number of references to NDAs on the DVD FLLC website (FLLC is the Format Logo Licensing Corporation, which apparently licenses the DVD logo you see on every player and DVD disc) and in a presentation, John Hoy, president of DVD CCA, mentions "218 carefully crafted pages" of bylaws.
Detailed in the license and bylaws are the artificial restrictions of the DVD format. Most of those are well-known, such as the region coding which is enforced solely through the CSS license. But the rules are much more specific than that. For example the FAQ at dvddemystified.com mentions that the CSS license disallows digital PCM sound output at 96 kHz and instead requires players to downsample to 48 kHz.

The CSS License creates outright crippled DVD players. Region coding, unskipable FBI warnings and advertisement, restrictions on output format, forced reduced quality, macrovision, no screenshots or excerpts - you name it.
The result is widespread control far beyond the rights granted by copyright law. Europe is currently investigating the DVD price structure, especially the question why DVDs are about 50% more expensive in Europe than in the USA, even though they are released on average 6 months later.
Region coding is a dream come true for Hollywood. No surprise that they are attacking region-free players on all fronts, including requests by the DVD Forum to withdraw the DVD logo license from the manufacturers of those players.

It smells cartel, yet the careful structure of the licensing scheme has so far successfully evaded investigations.

Licensing Structure

The DVD technology was developed in 1993 by Toshiba/Warner, becoming the formal standard in 1995 when the DVD Consortium agreed on using it over the rivaling format developed by Sony/Philips.
Toshiba and Matsushita developed CSS, most likely answering requests from the movie mafia. One Toshiba employee, John Hoy, then left Toshiba and formed the DVD CCA, whose sole business is the management of CSS licenses.

But there is more to this than just CSS. The below overview of an organizational structure that includes DVD CCA is taken from a presentation (pdf) done by John Hoy for the World Airline Entertainment Association.
It shows the entities within the playground, but it leaves out a few very interesting details that I will immediatly show.

As seen above, the licensing structure is divided over several legal bodies, with LMI being the central management instance and the 4C Entity taking over future technologies. For example, CSS II will be licensed by 4C Entity, not by DVD CCA which licensed CSS (and which, interestingly enough, is the only .org in this mess).
The diagram shows boxes for the Executive Director of every organization, but does not put a name there. We can correct that omission. The name in every one of those boxes is "John Hoy".
Because in fact, DVD CCA, 4C Entity, LMI and most probably DTLA too are one and the same organization. They not only share the same president, they also have the same postal address (225 B Cochrane Circle, Morgan Hill, CA 95037).
These are the organisations behind many of the recent infamous content control technologies. DVD CCA is the licensing body for CSS, 4C Entity is behind the CPRM hard-disk encryption and several watermarking technologies. DTLA licenses DTCP, one of the technologies trying to encrypt a signal all the way from the CD to your speakers. And LMI is, of course, the central management institution for all these.

But why the smoke screen of no less than four different organisations, with a fifth one (DVI) planned for the near future?
One reason might be the varying partners in crime - Intel and IBM are members of 4C, but only Intel is playing the DTLA game, together with Sony and Hitachi which in turn are not involved in 4C. However, judging from the history of these organisations, and the extreme care everyone has shown to make the various arrangements as complex and bullet-proof as possible, the main reason is almost surely an attempt at exploiting the law and legal system to the fullest extend, and the avoidance of cartel and anti-trust investigations.

More Proof on Identity

If identical presidents and postal addresses are not enough, here is additional proof for the theory that all the organisations above are just different fronts for the same group:
  • The whois records of all of them are almost identical, the only difference being that dtcp.com was registered later, while the other three were registered on the same day in 1999.
  • There is no name anywhere in the contact information, neither in the whois records nor on their websites. All simply list the same address, but even the press contact is a neutral e-mail address without a name behind it. How many people actually work in 225 B Cochrane Circle is anyone's guess.
  • Toshiba and Matsushita are involved in all of these organisations. John Hoy used to work for Toshiba.

DVD/CSS License Summary

The whole DVD technology is surrounded by a closely-knit network of organisations, license agreements, trademark protections and possibly any legal and organisational protection known to man.
It is quite obvious that it was set up by someone who is very paranoid. Nevertheless, even though the sheer number of organisations, licenses and other agreements involved is mind-boggling, the number of actual players is very small. I want to use just one example, but most of the other players are in equally deep:
Toshiba worked on the DVD technology with Warner in 1993, then with Matsushita on CSS in 1996. These three also are founding members of both DVD Forum and DVD FLLC. Toshiba then acted as interim license entity for CSS until DVD CCA and the three other organisations discussed above were founded, which are headed by a former Toshiba employee.

DVD Technology is controlled by a cartel with no more than a handful of players, who intentionally try to paint themselves in a much greater diversity than actually exists. Their extreme reactions towards the Free Software movement are obvious cartel actions - they fear competition. They want to keep the market they so carefully cornered all to themselves.

The Near Future

It appears that they will be successful in doing so in the short run. The USA have the DMCA in place and Europe is heading the same way with it's Copyright Directive.
The central bad point of these laws is that circumvention of "technical protection measures" (TPM) is illegal, no matter what your intent may be. There are narrow exceptions for encryption research and such like, but as seen in Prof. Felten's case, they are weak at best. If you have to sue in order to publish without fear, academic freedom has been done away with.
As you all know, Dmitri Sklyarov has been arrested on DMCA charges, so the point where it stops being funny has definitely been reached. Yet the laws are in place or are being created. I and others are trying to push for less harsh and more balanced national implementations of the TRIPS directives in our respective european nations.

If you want to join this fight, visit eurorights.org

Other than that, keep on coding. I still believe that one bright mind who breaks through the cartel's latests protection technology will make more of a difference than 10,000 petition e-mails to the EU Commission.

Postscriptum: ebooks

What we have seen in DVDs, TPMs are not primarily used to make copying more difficult, but to restrict and control what the user can do with his purchased movie. The same holds true for ebooks. While many ebooks are available in open formats, such as HTML or plain text, companies trying to turn a profit have developed proprietary ebook formats that include TPMs. One example everyone knowns from the Sklyarov case is the Adobe ebook format, but there are others.
All of them put a great number of artificial restrictions on those who bought books in this format. Among others, you can not copy (not even short quotes) text out of the ebook, you can not give it away or lend it to someone else or only do so within strict confines (e.g. lending once a month). You can, of course, not copy it, even though many private copies are perfectly legal and explicitly not restricted by copyright law, such as copying the ebook from your PC to your notebook so you can read it on the train.
Now the first ebooks are appearing that even limit the number of times you can read them, or expire after a certain time.

We are rapidly moving towards the scenario described in RMS' short-story Right to Read. But RMS was an optimist. The real world is moving both more quickly and much more aggressively. Here is a quote from the Microsoft Surveilance System:

"Using technology developed by Microsoft to protect its own intellectual property on the Internet, the AAP has implemented an aggressive Internet surveillance program, which includes an automated, intelligent Internet search tool that searches for unauthorized distribution of eBook content 24 hours a day, seven days a week. The information and evidence gathered by this tool can form the foundation for subsequent civil and criminal enforcement."

Appendix: TLAs and other abrev.

BIRPI  french for United International Bureaux for the Protection of Intellectual Property
CPRM  Content Protection of Recordable Media
CSS  Content Scrambling System
DMCA  Digital Millenium Copyright Act
DTLA  Digital Transmission Licensing Administrator
DVD CCA  DVD Copy Control Association
DVD FLLC  DVD Format and Logo Licensing Corporation
LMI  License Management Inc.
MPAA  Motion Picture Association of America
TRIPS  Trade-Related aspects of Intellectual Property Rights
TPM  Technical Protection Measure
WIPO  World Intellectual Property Organisation
WTO  World Trade Organisation