Court upholds ban on DVD-cracking code

[InfoSec News <isn () c4i org>]

Forwarded from: Jay D. Dyson <jdyson () treachery net>


-----BEGIN PGP SIGNED MESSAGE-----

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
Internet.

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
speech." 

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
tools.

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
Amendment."

-----BEGIN PGP SIGNATURE-----
Version: 2.6.2
Comment: See http://www.treachery.net/~jdyson/ for current keys.

iQCVAwUBPAWa4LlDRyqRQ2a9AQFSpAP+IOHKTEFFYbR2TAbn4jSvXryLwa8YMsGl
8lqDek7it8FgXbqGlyAISH8X21nvq5Fl/fgpqiZc5ZkaYOeBxSMwGGHPn0BZ69Hg
wCI/Qr9HJGdmbqvLqCO9QVbzvDAFDjZxNn2h9HSR24UxvrRrwoDUapTzlbT+4VAZ
jhY7ioJu6cw=
=D8bG
-----END PGP SIGNATURE-----



-
ISN is currently hosted by Attrition.org

To unsubscribe email majordomo () attrition org with 'unsubscribe isn' in the BODY
of the mail.