WASHINGTON — A federal court decision that restricted a DVD-descrambling program ignores free speech rights and should be overturned, eight different coalitions claim. The groups, representing everyone from cryptographers to journalists, have ganged up to attack the ruling in separate amicus briefs scheduled to be sent to the Second Circuit Court of Appeals on Friday.
WASHINGTON — A federal court decision that restricted a DVD-descrambling program ignores free speech rights and should be overturned, eight different coalitions claim.
The groups, representing everyone from cryptographers to journalists, have ganged up to attack the ruling in separate amicus briefs scheduled to be sent to the Second Circuit Court of Appeals on Friday.
In the first case to challenge the controversial Digital Millennium Copyright Act, U.S. District Judge Lewis Kaplan ruled last August that the DeCSS utility was like a “common-source outbreak epidemic” and violated the law’s prohibition against circumventing copyright-protection technology.
The lawsuit, which eight movie studios filed in federal court in New York against 2600 magazine, and a similar one pending in state court in California, are part of an aggressive campaign by Hollywood to protect its content from illicit online distribution.
All of the groups submitting briefs — the list includes the Association for Computing Machinery and the American Civil Liberties Union — seem to agree on one thing: By ignoring “fair use” rights under U.S. copyright law and rights to free expression guaranteed by the First Amendment, Kaplan’s ruling goes too far.
In its amicus brief, the Association for Computing Machinery argues not only that the decision was bad — but that the DMCA was a terrible idea in the first place. ACM is the largest professional organization of computer scientists and testified against the DMCA in Congress.
“The concern of the ACM is that the DMCA prohibits scientific analysis and discourse on the cutting edge of research and development in encryption technologies, including research and development of copyright protection tools and expertise,” the brief says. “This infringes academic thought and freedom of speech, and cannot be permitted.”
ACM claims that “the DMCA poses a substantial risk that speech regarding the legitimate study and advancement of encryption and computer technology will be prohibited.”
Among the other briefs is one co-authored by Stanford University law professor Larry Lessig, which argues that an attempt to control software tools is an attempt to control speech.
Another was filed by eight media groups including the Newspaper Association of America and the Reporters Committee for Freedom of the Press. It argues that Kaplan’s ruling should be overturned because he says linking to DeCSS should be illegal in some circumstances.
Wired News signed this 32KB friend-of-the-court brief.
Kaplan’s ruling not only prevented 2600 from distributing copies of DeCSS, but also barred the hacker-zine from linking to any Web page or area of a website where it resides. That could affect other online news organizations, which have occasionally linked to DeCSS as part of their coverage of the lawsuit.
“The District Court’s creation of a special constitutional test whereby an online publisher may be subject to suit under a federal statute merely because it has included a link in an article will have a serious chilling effect on journalistic practice,” the brief says.
It argues that the Supreme Court has created a “neutral reportage” exception for republishing comments that might be defamatory, and including hyperlinks in news articles is far less harmful: “The online journalist is at least one step removed; she does not ‘republish’ the allegedly harmful statement but merely indicates to the reader where it may be found.”
“Making this jump from providing a link to making journalists an accessory in a crime is a disturbing logic that we want to cut off at the source,” said Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, which signed the brief.
The Motion Picture Association of America, which has backed the lawsuit, declined to comment on the amicus briefs. Its reply brief — 2600 magazine filed its brief Jan. 19 — is due Feb. 19, and its allies’ amicus briefs are due Feb. 26.
“We’re not going to make any comment until we submit our filing,” an MPAA spokesman said on Thursday.
After Kaplan’s ruling last year, MPAA president Jack Valenti said: “Today’s landmark decision nailed down an indispensable constitutional and congressional truth: It’s wrong to help others steal creative works. The court’s ruling is a victory for consumers and for legitimate technology.”
The Electronic Frontier Foundation, which has paid for the legal defense of 2600 publisher Emmanuel Goldstein, is coordinating the amicus briefs and says it will have them online by Friday.
One brief, submitted by over a dozen cryptographers, was already filed earlier in the week.
It argues that computer code — such as DeCSS — should receive the same First Amendment protections as any other forms of expression.
It has one example designed to appeal to the judges’ legal minds: “If ‘$plain_text = $file_key ^ $xor_block’ seems unapproachable, consider what those not trained in the language of legal citation would make of ‘111 F.Supp.2d 294, 326 (S.D.N.Y. 2000).’ Each is meaningless to those unfamiliar with the language; but each is more precise and compact for those who do understand than would be an English narrative equivalent.”
The DMCA prohibits anyone from publishing or publicly distributing any hardware or software that “is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner.”
Under the law, circumventing includes descrambling content or removing its protective wrapper of encryption.
Author: Declan McCullagh
News Service: Wired News