In the Bunner DVD case, the DVD Copy Control Association attempted to
suppress the distribution (or even linking to) of the DeCSS code (which
decrypts content from DVDs) with the claim that the code contained trade
secrets. The court's rulings suggested that the trade secret claim was not
going to hold up, and the Bunner case was dropped last year. The trade
secret weapon had proved ineffective in this case.
The DVDCCA has responded with a change of direction: the group is now suing
321 Studios, which makes a proprietary DVD copying program, for patent
infringement. 321 and its DVD Copy program have been in and out of the
courts for a while; the company started the litigation with a suit which
attempted to obtain a ruling stating that its products do not violate the
DMCA. The bringing of a patent suit changes the nature of this battle,
however. It is a living demonstration of one of the free software
community's deepest fears: that software patents will be used to prevent us
from programming our computers to work the way we want them to.
It is interesting to note that patents are incompatible with trade
secrets. Patent applications require full disclosure of the technology for
which protection is sought; any technology which has been publicly
disclosed in this manner cannot, by definition, be a trade secret. Thus
far, we have been unable to turn up a reference for the exact patent which
is being claimed by the DVDCCA; if anybody has a pointer, we would
appreciate hearing about it. Given the timing, however, the patent application must
have been in the works while the trade secret case was pending. Filing
trade secret suits while having already disclosed the relevant technology
would be, at the least, an act of bad faith.
321 Studios is also being sued by Macrovision, which is also claiming
patent infringement along with DMCA violations. 321 has just filed a
response pointing out that, among other things, Macrovision's patents
cover an analog copy-protection mechanism which is not relevant to a
digital copying program.
This company has been fighting many of the same digital rights battles as
the free software community. But there has been no big outpouring of
support for 321 studios; for the most part, its battles have been ignored.
321 Studios has not been able to obtain the same level of interest and
support as, say, Elcomsoft has.
One might point out that 321 Studios is a proprietary software company;
that is true, but so is Elcomsoft. The real answer, perhaps, is that the
community has sensed that 321 Studios does not really share its values; 321
appears to have little interest in any issues beyond immediate sales of DVD
The difference in values has just become rather more apparent, however; see
press release from February 5. Therein, 321 notes that one of its
customers was said to be using DVDXCopy for "piracy." The company
responded by shutting down the software remotely. This program, it seems,
puts a watermark into every disk it creates allowing the company to
identify who performed the copy and, should it feel so inclined, to shut
down the software altogether.
This feature highlights one of the largest differences between free
software and (at least some of) its proprietary relatives. The DeCSS code
does not come with watermarking and remote shutdown capabilities. The Gimp
will not attempt to prevent its users from creating an image that might
look like some nations' currencies, and Ghostscript will not try to prevent
that user from printing such images. Neither Freevo nor MythTV will phone
home with details of just how often the user replayed the latest banal
Superbowl publicity stunt. Nothing prevents anybody from coding any such
features, but, equally, nothing prevents the rest of the world from taking
them back out. Free software evolves toward one specific end: meeting the
needs of its users. There is no room for conflicts of interest, no space
for the agendas of industry consortia, advertisers, or governments.
321 Studios is not fighting for that view of the software universe; the
company simply wants to be able to sell its product. We can certainly
sympathize with the company as it deals with familiar problems like the
DMCA and software patents. But, while 321 is fighting many of the same
battles as the free software community, it is fighting them as part of a
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