Throwing the book at DeCSS
The 2nd U.S. Circuit Court of Appeals is considering whether to overturn a lower court ruling that prevents online hacker magazine 2600 from publishing or linking to code theoretically capable of cracking DVD security. On Tuesday, the appellate court peppered attorneys from both sides about the scope of the ruling.
The closely watched case is the first major test of copyright law in the Digital Age. It also could lay the ground rules for publishing and linking to certain types of Web content.
During one exchange at the hearing, Judge Jon Newman asked Daniel Alter, a federal attorney arguing to uphold the ruling, if The New York Times under the same logic would be liable for a link to contraband or other illegal material.
In his lower court ruling, Judge Lewis Kaplan said 2600 was promoting copyright theft by linking to code known as DeCSS. On Tuesday, Alter told Newman that the court must make a distinction between the intent of different sites when they link to questionable material. For example, the attorney said, The New York Times would merely be acting like a "shuttle bus," transporting people to different types of content.
However, he argued, 2600 was intentionally trying to disseminate the code with its links. "If someone's going to put that out on the Internet for the world to obtain, it would be harmful for the copyright holder," Alter told the court.
The Motion Picture Industry Association of America sued 2600 in January 2000, claiming that the publication was violating its copyrights by posting and linking to the DeCSS code. After a trial, Kaplan agreed with the entertainment industry.
During Tuesday's hearing, each side had a chance to present its case in person and answer questions from the judges. Kathleen Sullivan, Dean of the Stanford Law School, argued in favor of 2600. Charles Sims, representing the motion picture industry, and Alter argued for the MPAA's side of the case.
At one point, Newman questioned Sullivan's assertions that the lower court ruling was an outright violation of free speech. The judge said Kaplan's ruling was a precise injunction, not a worldwide injunction against free expression.
The hearing also focused on the anti-circumvention clause of the Digital Millennium Copyright Act, a law designed to expand copyright laws to the Internet. During her testimony, Sullivan argued that DeCSS should not be outlawed because it has legal uses as well as illegal.
Sullivan compared a crackdown on DeCSS to a crackdown on photocopiers, which, she said, could be used for good as well as illegal purposes.
"DeCSS might be used by an infringer, or it might be used by an innocent user," she said, later adding, "There's no finding in the world that shows anybody used DeCSS to infringe copyrights."
But Sims, arguing for the movie industry, said that because people don't leave any trace when they steal a movie, the courts must help copyright owners by making illegal the technology that could theoretically be used to copy digital content. He urged the court to uphold Kaplan's ruling to prevent the "Napsterization" of the movie industry.
The hearing is one of the final steps in the appeals process. Both sides have until May 10 to submit a filing clarifying some answers to the questions the judges asked Tuesday.
For the past three months, each side has submitted a flurry of legal filings in attempts to sway the judges to decide in its favor. Several diverse groups with interests in copyright, linking or free speech also have jumped in on the case. The National Football League, Major League Baseball and the Screen Actors Guild have asked the court to uphold Kaplan's ruling, fearing that programs such as DeCSS could lead to widespread piracy of their products. A group of librarians, programmers and journalists has weighed in on the other side, saying Kaplan's ruling is a threat to free speech.
The event attracted a wide variety of spectators, including at least one hacker-type who sported a T-shirt displaying the illegal DeCSS code.
The judges can issue their ruling anytime, a process that legal experts expect to take anywhere from six weeks to a year. After that, the losing side probably would appeal to the U.S. Supreme Court.
Meanwhile, a U.S. Copyright Office report on the DMCA has been postponed while the office works on other legislation. The report will look at how the copyright law affects intellectual property in the digital age.
Staff writer Jim Hu reported from New York, and ZDNN's Lisa M. Bowman reported from San Francisco.