To the U.S. government, a DVD descrambling utility is akin to terrorware that could crash airplanes, disrupt hospital equipment and imperil human lives. On Tuesday, an assistant U.S. attorney told a federal appeals court hearing arguments in the Universal Studios v. Reimerdes et al case that the DeCSS utility, which the Motion Picture Association of America has sued to take off a website, should be banned.
NEW YORK — To the U.S. government, a DVD descrambling utility is akin to terrorware that could crash airplanes, disrupt hospital equipment and imperil human lives.
On Tuesday, an assistant U.S. attorney told a federal appeals court hearing arguments in the Universal Studios v. Reimerdes et al case that the DeCSS utility, which the Motion Picture Association of America has sued to take off a website, should be banned.
Attorney Daniel Alter likened DeCSS to “software programs that shut down navigational programs in airplanes or smoke detectors in hotels.” He warned: “That software creates a very real possibility of harm. That is precisely what is at stake here.”
Those dire warnings had hackers sitting in the back of the courtroom, snickering. After all, DeCSS was developed by open-source devotees as a simple way to play DVDs on a Linux computer.
The Second Circuit Court of Appeals spent an hour quizzing attorneys for the government, the MPAA and 2600 Magazine — which posted the DeCSS utility — about how the Digital Millennium Copyright Act applies to this case. 2600 has appealed a ruling from a federal district judge who said the hacker-zine violated the DMCA.
The Justice Department has entered this case to defend the constitutionality of the DMCA — 2600 claims it violates the First Amendment — which the agency is generally required to do when a federal statute is being challenged. It’s siding with the MPAA, which has offered dire warnings about rampant DVD piracy unless DeCSS and similar software is outlawed.
“When you look at the overall course of conduct and the risk and the threat that is caused by the global distribution (of DeCSS), this is a harm that Congress can regulate against,” Alter said.
The DOJ also said it believes that U.S. District Judge Lewis Kaplan’s order telling 2600 not to link to DeCSS is a reasonable restriction. (A coalition of news organizations, including Wired News, filed an amicus brief saying that linking should be permitted.)
“We agree with the judge’s overall structure on linking liability,” Alter said.
While the three-judge panel seemed to direct its harshest questions at Kathleen Sullivan, the Stanford University law school dean who argued for 2600, they did ask Alter whether Kaplan’s injunction made any sense anymore. Thousands of copies of DeCSS exist on the Web — Google lists over 110,000 mentions — and the MPAA has never sued to close a well-publicized DeCSS Gallery.
“Once it’s out there on the Internet, is it possible for the injunction to achieve its intended effect?” asked Judge Alvin Thompson.
Replied Alter: “Yes, your honor, I would say, yes, to a degree.”
“Could it actually get off the Internet?” Thompson asked.
“I think you’d run into problems of extra-territorial application of statutes,” Alter replied, talking about the problem of removing DeCSS from overseas sites that are not subject to the DMCA.
Judge Jon Newman, who asked by far the most questions, wondered if other publications — The New York Times came up — could be in trouble for “solely a listing” of an address or link to DeCSS.
“In some circumstances, yes,” Alter said. “In some cases, no.” He said it depended on an overall course of conduct.
During an impromptu press conference on the sidewalk afterward, an MPAA attorney refused to say whether Wired News or the Times could be sued for linking to DeCSS.
“I don’t think we can make categorical statements,” said Chuck Sims, the Proskauer Rose attorney who argued on behalf of the movie studios.
Sims predicted an easy victory. “They’re affirming the judgment below, no doubt about it,” he said.
The three-judge panel gave all the lawyers until May 10 to file 10-page supplemental briefs, and a ruling could come at any time thereafter. The Electronic Frontier Foundation is providing 2600 with legal aid.
Author: Declan McCullagh
News Service: Wired News