November 28, 2001 6:40 PM PST
Ban on DVD-cracking code upheld
The decision for now upholds a controversial law known as the Digital Millennium Copyright Act (DMCA) and prevents Web site 2600 and its publisher, Eric Corley, from posting links to computer code known as DeCSS--a program that allows DVD movies to be decoded and played on personal computers.
Joining a growing consensus among courts across the country, the 2nd U.S. Circuit Court of Appeals in New York found that computer code is speech and therefore entitled to some First Amendment protections under the U.S. Constitution. But the court concluded that the material in this case is "content-neutral," and therefore entitled to considerably less protection than "expressive" content such as poetry or a novel.
"Neither the DMCA nor the posting prohibition is concerned with whatever capacity DeCSS might have for conveying information to a human being, and that capacity...is what arguably creates a speech component of the decryption code," the unanimous three-judge appellate panel wrote in a 72-page opinion that leaned heavily on the reasoning of a lower court.
The decision is a major win for copyright holders in general, but especially for the movie industry, which has been fighting to ban DeCSS from the Internet for about two years. Civil rights advocates have been closely watching the case, arguing that the DMCA is overbroad and that banning links to content online could wreak havoc with free expression on the Internet.
Corley, the last holdout in a case that originally targeted dozens of defendants, has won high-profile supporters concerned about the case's speech implications, including the lower court's limits on linking. In a flurry of legal filings earlier this year, groups ranging from the America Civil Liberties Union to a coalition of hotshot programmers submitted amicus briefs siding with Corley and the Electronic Frontier Foundation (EFF), which is spearheading his defense.
While acknowledging the difficulties in placing limits on linking, the appeals court essentially agreed with the lower court's reasoning "that the DMCA, as applied to the defendants' linking, served substantial governmental interests and was unrelated to the suppression of free speech."
The DMCA, passed in 1998, prohibits the circumvention of copy protection and the distribution of devices that can be used to bypass copyrights--even if people using the devices don't do anything illegal once they've broken the security. Software makers, Hollywood and the music industry make up the core proponents of the law.
The law also makes it illegal to "traffic" in anti-copying circumvention tools.
The case stems from a suit filed in January 2000 against 2600 by the Motion Picture Association of America (MPAA). In August 2000, New York District Judge Lewis Kaplan found that posting the code--or linking to direct downloads of the program--violated copyright law.
"This is a terrific victory for content owners and the motion picture studios," said Chuck Sims, an attorney with Proskauer Rose, which represents the MPAA. "This sweeping decision upholds the DMCA and rejects every argument that the defendants presented."
DeCSS is the result of a group of coders intent on reverse-engineering the software used to play DVD movies on PCs, but it quickly became the centerpiece in debates over online video piracy. The proliferation of DeCSS has proven to be a major headache for the motion picture industry, with versions of the code jumping off the Net and into songs, poems, T-shirts and ties.
One popular technology for compressing films and distributing them online, dubbed DivX, included instructions for copying films that explicitly named DeCSS as a useful tool. The MPAA latched on to such anecdotal evidence as proof that the software was being used primarily as a piracy tool.
Cindy Cohen, EFF's legal director, said she had not reviewed the decision and could not immediately comment.
While Wednesday's ruling is a clear win for the motion picture industry, the case has created some conflicting legal decisions.
In a related case winding its way through the California courts, a state appeals court earlier this month overturned an order that barred hundreds of people from publishing DeCSS online. Posting the code is like publishing other types of controversial speech and is protected by the constitution, the appellate judges said.
"Although the social value of DeCSS may be questionable, it is nonetheless pure speech," the decision read. "Our respect for the legislature...cannot displace our duty to safeguard the rights guaranteed by the First Amendment."