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As arguments are being prepared and briefs written in the DVD descrambling case, a new player is entering the picture: the U.S. Department of Justice. The department this week filed a brief with the appeals court strongly backing the position of plaintiff, the Motion Picture Association of America.

The MPAA sued journalist Eric Corley for posting the source code to a program called DeCSS (De-Content Scramble System), which is designed to remove copy protection from DVDs. Corley also uses the name Emmanuel Goldstein and works for 2600: The Hacker Quarterly, a magazine dedicated to phone and computer hacking. He posted the source code on the magazine's Web site.

A federal judge ruled last August that Goldstein and 2600 violated the Digital Millennium Copyright Act by providing DeCSS at 2600's Web site. In the DMCA's language, DeCSS is a copy control circumvention device. The judge also ruled that the prohibition against providing DeCSS includes linking to other sites that offer the code, a finding that caused much controversy in some sectors of the online community.

Goldstein and 2600, with the help of the Electronic Frontier Foundation, are appealing the ruling. They argue that posting DeCSS was protected both by fair use--the traditional consumer rights that allow many noncommercial uses of copyrighted material--and by the First Amendment, calling posting the code a free speech issue.

In its brief, the Justice Department rejects these arguments forcefully as "without merit."

Is Code Considered Speech?

The Justice Department brief primarily defends the DMCA. The law's legitimacy has been hotly discussed and will be at the center of 2600's appeal. The site contends the DMCA is unconstitutional since it is "clearly designed to disfavor speech of a particular content: speech that discusses or explains how to circumvent 'technical measures.'" The Justice Department rejects that argument, saying DeCSS is not simply speech that discusses circumventing access controls, but is itself a means to circumvent those controls.

The same thinking underlies the government's refutation of the defendant's First Amendment argument.

DeCSS is not protected as free speech, the Justice Department says, because the code was not simply published online, but was provided as "operable software."

The Justice Department goes on to say that while Goldstein and 2600 may attempt to wrap themselves in a journalistic cloak and "cast themselves in the role of the protagonist reporter who seeks only to convey truthful information to the public, this lawsuit is really about computer hackers and the tools of digital piracy."

The brief also denies credence to the defendant's arguments about the prohibition on linking to DeCSS, saying that their characterization of the court's decision is "simply wrong."

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