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Court Bars Hacker From Posting Code

Judge rules that posting links to illegal code is not protected by the First Amendment.

By Sam Costello, IDG News   

In what some observers see as a significant ruling for the future of the Internet, a U.S. Federal Judge Thursday ruled against posting links to illegal code. In a 93-page ruling, New York State District Court Judge Lewis A. Kaplan barred an online hacker publication from linking to Web sites where visitors can download illegal code, such as De-Content Scrambling System.

If Web site operators know that the offending code is available at linked sites and offer the links with the intent to facilitate the spread of the code, they are in violation of the anti-trafficking provision of the Digital Millennium Copyright Act, Kaplan ruled.

The Motion Picture Association of America sued journalist Eric C. Corley, who also goes by the name Emmanuel Goldstein, after he and his employer, 2600: The Hacker Quarterly, decided to post the DeCSS source code on their Web site. DeCSS allows users to circumvent the Content Scrambling System, an encryption system designed to prevent piracy and included by the MPAA on all DVDs.

Free Speech?

Corley's attorneys argued that posting of DeCSS was protected under the First Amendment guarantees of free speech and press. Kaplan denied those claims across the board, and at various times throughout the written decision, compared the posting of the code to a political assassination, a bank robbery, and a disease. Kaplan held that linking was the "functional equivalent" of providing the DeCSS code.

That section of the ruling is seen as the most important facet of the case by some, who fear that the decision could be the first step to criminalizing many forms of linking.

At least one analyst said Judge Kaplan's ruling should not be a great cause for concern among law-abiding Web site operators. The judge made it clear in his ruling that courts should find Web site operators in violation of the DMCA only if they show a willful intent to distribute illegal code, says Susan Billheimer, an industry analyst with Zona Research.

"It's not going to be the case that if you link to something unknowingly that has copyrighted material, that you're going to be found in violation of the law," Billheimer says.

Upholding the Law

The DMCA, the wide-ranging law passed by the U.S. Congress in 1998 that regulates intellectual property rights in the digital sphere, specifically bars the use of a technology to circumvent legal copyright protection measures.

Kaplan's ruling refutes all of Corley's claims about the DMCA: that it is overbroad, that it is vague, that it interferes with the First Amendment, that it abridges fair use.

Kaplan accepted all of the MPAA's claims and called the organization "gravely injured."

The judge compared posting DeCSS to publication of a bank vault combination in the newspaper, writing that "even if no one uses the combination to open the lock, its mere publication has the effect of defeating the bank's security system, forcing the bank to reprogram the lock."

Though the judge called Corley's claims "a farrago of distortions," he penalized him relatively lightly. (A farrago is a "confused mixture" or "hodgepodge.") Though there is now a permanent injunction against posting and linking to DeCSS code, Corley will be forced to pay only the MPAA's court taxes, rather than all of its legal fees, as the MPAA sought.

James Niccolai contributed to this report.