Court Weighs Whether Code Is Free Speech

A panel of appellate judges is pondering the arguments of hackers and Hollywood, weighing copyright against fair use and free speech, in a case nearing completion.

The case pits the hacker publication 2600: The Hacker Quarterly against eight powerful Hollywood studios in New York's Second U.S. Circuit Court of Appeals. It centers on the publication's posting of code called DeCSS (De Contents Scramble System), intended to decrypt DVDs and permit copying.

Both sides are due to file supplemental briefs within ten days, and then await a decision. The Motion Picture Association of America, the umbrella group for the studios, won its lawsuit last year. The hacker publication has appealed the case to a three-judge panel.

Opponents Wary

A representative for 2600 says her side is "pleased" with how the appeal was received.

"We are pretty happy with the tenor of the questions asked," says Cindy Cohn, legal director for nonprofit civil liberties group Electronic Frontier Foundation, which is supporting 2600 in its case.

Meanwhile, MPAA President Jack Valenti has issued a terse press statement saying he remains confident the appeal will not be overturned. He accuses the defense of using "red herrings" to obscure the facts, but it isn't immediately clear what red herrings Valenti means.

The magazine has argued it did nothing unlawful by publishing the code, which was originally written to allow DVDs to be used on Linux-based systems. It cites "fair use" doctrines that state the public can use copyrighted material for noncommercial purposes. Also, 2600 claims the code is protected under the First Amendment's protection of freedom of speech.

At the heart of the case is the controversial Digital Millennium Copyright Act, which is intended to protect digitally-recorded materials such as movies and songs. DMCA opponents argue the Act is oppressive and threatens to squash fair use doctrines. DMCA is the same thorn in the side of infamous song-swapper Napster in its battle against music labels' complaints that it infringes on copyrights.

Liability for Linking?

Cohn says the judges seemed concerned about whether fair-use doctrines are being interpreted too restrictively.

The judges also asked a series of questions concerning liability when hyperlinking to copyrighted and sensitive material, she says. Cohn says they seemed particularly unhappy with the suggestion that news organizations could be held responsible for linking to certain materials.

While representatives for 2600 appear happy with the flow of arguments in the appeal, which stretched from a programmed 40 minutes to an hour and a half, they emphasize it is impossible to guess how the judges will rule.

In his statement, the MPAA's Valenti said "the facts of this case remain unchanged since day one," implying he believes there is no good reason to overturn the injunction against 2600.