A three-judge appellate panel heard arguments in the case of Universal Studios et al. v.2600 et al., in the appeal of an injunction that prohibits magazine and Web publisher Eric Corley from publishing or linking to a DVD decryption code on his Web site 2600.com.
The case is the first major legal challenge to the Digital Millennium Copyright Act, which prohibits cracking technological safeguards designed to protect against piracy. Last August, Judge Kaplan ruled in favor of the motion picture industry, which had claimed that 2600's publication of DeCSS, a decryption code, was illegal under the DMCA's antitrafficking provision. The case has important implications for digital book publishers, who encrypt their content in the hope of warding off a Napster-type sharing of digital content, free of charge.
Kathleen Sullivan, dean of Stanford Law School and a First Amendment expert, argued for the defense that the original decision was flawed because, among other things, it failed to preserve fair use of copyrighted material and violated free speech protections.
The plaintiffs were represented by Charles Sims, whose arguments were buttressed by U.S. attorney Daniel Alter. Alter compared DeCSS to a "digital crowbar" that pried open the DVD encryption to allow infringement. Both attorneys pointed to the ease of digital copying and global distribution, arguing that encryption was essential to preventing "the Napsterization of the motion picture industry."
Asked if DeCSS had caused actual harm to the motion picture industry, Sims replied, "actual threat of harm," contending that Corley's publication of the code was tantamount to aiding and abetting infringement. Although judges' comments in oral arguments do not necessarily indicate their ultimate decision, the judges seemed receptive to the argument that actual harm was not required to uphold the injunction. They also appeared skeptical that an injunction would stop dissemination of DeCSS.
Sullivan argued that the DMCA wrongly prevented access to copyrighted material rather than infringing use of that material. She called CSS, the encryption code embedded in DVDs, a "digital straitjacket" that eliminated use except as narrowly prescribed by the studios, tipping the scale in favor of copyright owners at consumers' expense. Sullivan also argued that it violated fair use, the right to strictly personal use of copyrighted material, by preventing anything but owner-prescribed usage. Corley had claimed that he made DeCSS available online so that others might use it to play videos on computers with Linux operating systems, which was impossible without DVD decryption.
The defense argued more persuasively that Corley's link to the DeCSS site did not constitute trafficking in illegal technology. The original analogy compared this case to the act of suppressing a newspaper story for pointing out a corner where drugs were being sold. Sullivan equated Corley's link with a similar one by the New York Times, saying that both were motivated by the desire to inform the general public.
Although the defense claimed that code is expressive speech and deserves First Amendment protections, the speech content of DeCSS was not given much scrutiny. The judges asked both sides to submit written briefs answering specific questions concerning the code's speech content.