A Federal Appeals Court will decide just how free some information is allowed to be on the Internet.
Whats on the line is whether it is legal to break the locks applied to digital content to prevent it from being copied. The movie industry claims that upholding a lower courts ruling banning DVD-hacking software will forestall "the Napsterization of motion pictures." But opponents claim it eliminates some fair uses that are protected under copyright law. The case also has First Amendment ramifications, since it addresses the ability of a Web site to link to other sites hosting software that may be deemed illegal.
Last week, the U.S. Second Circuit Court of Appeals in New York heard arguments in the case, in which the Motion Picture Association of America successfully sued hacker magazine 2600 and its publisher, Eric Corley, for distributing and linking to information about DeCSS, software that decrypts DVD movies. A district court judge last August ordered Corley to remove from his Web site not only DeCSS, but also links to other sites hosting the code.
The case — along with the Napster trial, one of the most prominent relating to copyright infringement on the Internet — will be an important test for the Digital Millennium Copyright Act. That 1998 federal law that, among other things, prohibits anyone from circumventing copyright-protection technologies. The Electronic Frontier Foundation, which is representing Corley, hopes to show the DMCA is unconstitutional because, the organization believes, it curbs free speech.
The three-judge appeals court will rule on the case in a matter of months. In their questioning last week, the judges seemed more sympathetic to the arguments of the movie industry. Legal observers expect the court to uphold the lower courts ruling; if that happens, the EFF and others have vowed to appeal the case to the Supreme Court.
"Things dont look super hopeful [for the defense] because its hard to get a law declared unconstitutional," said Fred Von Lohmann, a copyright attorney at Morrison & Foerster. "I think Corley is right, but its a tough legal argument to make."
Each side predicts dire consequences if the court does not support its position.
Lawyers for the MPAA and the Department of Justice maintained that content producers would not make their digital content available if they had no assurances it could be protected. "The new technology presents dangers to copyright owners," said MPAA attorney Charles S. Sims. "Seeing what happened with the music industry, it requires no great feat of imagination to see what would happen with motion pictures."
Representing the defendants, Kathleen Sullivan, dean of Stanford University Law School and a First Amendment scholar, said the copy-prevention technology on DVDs is "a digital straitjacket" and that DeCSS has many noninfringing uses. She compared the DeCSS code to a blueprint for a photocopier: While they both could be used to violate copyright laws, they had many other fair and legal uses, she said.
But Judge Jon Newman pointedly questioned Sullivans arguments, asking rhetorically whether a copyright holder was obligated to make material available in "the most technologically advanced way." Newman also pointed out that the movie industrys DVD protection scheme eliminates only the ability for users to make a perfect digital copy of the original — other fair uses, such as a reviewer quoting from the movie, are still possible.
On the question of linking to illegal material, Newman asked Daniel Alter, arguing on behalf of the Department of Justice for the plaintiffs, whether a newspaper could be prosecuted for publishing a list of bookstores selling obscene material. Alter replied, "Maybe yes, maybe no" — he said the intent of the site publishing the links needs to be considered.
The appeals court could decide to more narrowly specify that the injunction against linking to illegal code applies only to the defendants in this particular case.