DVD hackers appeal

Fed court hears Corley, DeCSS c'right case

NEW YORK — A district court injunction levied against hacker-publisher Eric Corley tramples consumers’ rights to make fair use of copyrighted material, including encrypted DVDs, contended Corley’s counsel in oral arguments before a federal appeals court in New York.

Issued last August by New York District Court Judge Lewis Kaplan, the injunction against Corley (aka Emmanuel Goldstein) prevented Corley’s Web site, 2600.org, from offering, or linking to sites that offer, software called DeCSS, which can be used to hack through digital security measures on DVD movies.

Suit, originally filed by the Motion Picture Assn. of America and the major movie studios it represents, has also won the support of orgs repping other facets of the entertainment biz, including music, TV and sports.

Sullivan questions

Stanford Law School dean Kathleen Sullivan, who joined Corley’s already formidable legal team earlier this month, said Tuesday that the injunction, based in part on the Digital Millennium Copyright Act of 1998, ignores DeCSS users with a legitimate purpose and therefore could be constitutionally questionable.

The act “prohibits the dissemination of any device that facilitates access to copyrighted content,” regardless of whether it has other purposes, she said. “It’s as if the law has been applied to say you may not post a blueprint of a copying machine because it might be used for infringing.”

Charles Sims of Gotham law firm Proskauer Rose, arguing for the studios, defended the act’s application in this case, maintaining that the technology’s potential utility to copyright infringers is obvious.

The program “frees the encrypted signal so that it can be easily copied,” he said. “That is exactly what Congress was trying to avoid” by enacting the law.

‘Digital crowbar’

Assistant U.S. attorney Daniel Alter, who argued in support of the act on behalf of the government, called DeCSS “a digital crowbar, created for the sole purpose of ripping open DVDs” and copying their contents. He added that the DMCA was actually an attempt to expand free speech by helping content providers distribute their wares in digital form without fear of widespread Internet piracy.

But DeCSS, Sullivan said, is only a tool for decrypting DVD content — it does not, on its own, facilitate copying or posting a digital movie on the Web. “There is no finding anywhere that anyone has actually been used DeCSS to infringe a copyright,” she said.

Because the injunction — and the DMCA, on which it is based — doesn’t allow for the distinction between fair users and pirates, it is too broad a restriction on free speech, she added.

Sullivan also laid out a second defense — used with little success in the district court case — arguing that DeCSS’ underlying computer code constitutes a form of speech in its own right, and is therefore subject to First-Amendment protection.

But Appeals Court Judge Jon O. Newman expressed skepticism at the notion of protecting the code as speech, citing District Court Judge Lewis Kaplan’s argument that the program’s functionality is more important than its value as speech in this case.

The two sides have until May 10 to submit additional written materials in support of their arguments to the court. A decision is expected within a few weeks.

(Paul Sweeting in Washington, D.C., contributed to this report.)

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