[ISN] Court upholds ban on DVD-cracking code

From: InfoSec News (isnat_private)
Date: Wed Nov 28 2001 - 23:59:28 PST

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    Forwarded from: Jay D. Dyson <jdysonat_private>
    Courtesy of Rick Forno.
    As Rick wrote: DMCA 2, Freedom 0.
    Court upholds ban on DVD-cracking code
    By Evan Hansen
    Staff Writer, CNET News.com
    November 28, 2001, 6:40 p.m. PT
    A federal appeals court on Wednesday upheld an order that prohibits
    publishing or linking to DVD-cracking code--a decision with sweeping
    significance for free speech rights and copyright protection on the
    The decision for now upholds a controversial law known as the Digital
    Millennium Copyright Act (DMCA) and prevents Web site 2600 and its
    publisher, Eric Corley, from posting links to computer code known as
    DeCSS--a program that allows DVD movies to be decoded and played on
    personal computers.
    Joining a growing consensus among courts across the country, the Second
    Circuit Court of Appeals in New York found that computer code is speech
    and therefore entitled to some First Amendment protections under the U.S. 
    Constitution. But the court concluded that the material in this case is
    "content-neutral," and therefore entitled to considerably less protection
    than "expressive" content such as poetry or a novel. 
    "Neither the DMCA nor the posting prohibition is concerned with whatever
    capacity DeCSS might have for conveying information to a human being, and
    that capacity, as previously explained, is what arguably creates a speech
    component of the decryption code," the court wrote in a 72-page opinion
    that leaned heavily on the reasoning of a lower court. 
    The decision is a major win for copyright holders in general, but
    especially for the movie industry, which has been fighting to ban DeCSS
    from the Internet for about two years. Civil rights advocates have been
    closely watching the case, arguing that the DMCA is overbroad and that
    banning links to content online could wreak havoc with free expression on
    the Internet. 
    Corley, the last holdout in a case that originally targeted dozens of
    defendants, has won high-profile supporters concerned about the case's
    speech implications, including the lower court's limits on linking. In a
    flurry of legal filings earlier this year, groups ranging from the America
    Civil Liberties Union (ACLU) to a coalition of hotshot programmers
    submitted amicus briefs siding with Corley and the Electronic Frontier
    Foundation (EFF), which is spearheading his defense. 
    While acknowledging the difficulties in placing limits on linking, the
    appeals court essentially agreed with the lower court's reasoning "that
    the DMCA, as applied to the defendants' linking, served substantial
    governmental interests and was unrelated to the suppression of free
    The DMCA, passed in 1998, prohibits the circumvention of copy protection
    and the distribution of devices that can be used to bypass
    copyrights--even if their users don't do anything illegal once they've
    broken the security.  Software makers, Hollywood and the music industry
    make up the core proponents of the law. 
    The law also makes it illegal to "traffic" in anti-copying circumvention
    The case stems from a suit filed in January 2000 against 2600 by the
    Motion Picture Association of America. In August 2000, New York District
    Judge Lewis Kaplan found that posting the code--or linking to direct
    downloads of the program--violated copyright law. 
    "This is a terrific victory for content owners and the motion picture
    studios," said Chuck Sims, an attorney with Proskauer Rose, which
    represents the MPAA. "This sweeping decision upholds the DMCA and rejects
    every argument that the defendants presented." 
    Originally created by a young Scandinavian programmer as a way to allow
    computers running the Linux operating system to play copy-protected DVDs,
    DeCSS quickly became the centerpiece in debates over online video piracy. 
    The proliferation of DeCSS has proven to be a major headache for the
    motion picture industry, with versions of the code jumping off the Net and
    into songs, poems, T-shirts and ties. 
    One popular technology for compressing films and distributing them online,
    dubbed DivX, included instructions for copying films that explicitly named
    DeCSS as a useful tool. The MPAA latched on to such anecdotal evidence as
    proof that the software was being used primarily as a piracy tool. 
    Cindy Cohen, EFF's legal director, said she had not reviewed the decision
    and could not immediately comment. 
    While Wednesday's ruling is a clear win for the motion picture industry,
    the case has created some conflicting legal decisions. 
    In a related case winding its way through the California courts, a state
    appeals court earlier this month overturned an order that barred hundreds
    of people from publishing DeCSS online. Posting the code is like
    publishing other types of controversial speech and is protected by the
    constitution, the appellate judges said. 
    "Although the social value of DeCSS may be questionable, it is nonetheless
    pure speech," the decision read. "Our respect for the legislature...cannot
    displace our duty to safeguard the rights guaranteed by the First
    Version: 2.6.2
    Comment: See http://www.treachery.net/~jdyson/ for current keys.
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