Free-speech issues underlie DVD-code appeal
A diverse group of computer scientists, journalists and librarians is asking a federal appeals court to overturn a ruling that prevents people from posting or linking to the code that can help crack DVD encryption.
In a flurry of legal filings, groups ranging from the America Civil Liberties Union (ACLU) to a coalition of hotshot programmers submitted amicus briefs siding with the Electronic Frontier Foundation (EFF) and the hacker publication 2600 in its case against the entertainment industry.
The filings contain a range of legal arguments, but most focus on the idea that New York federal Judge Lewis Kaplan's ruling, which prohibits links to the DVD-cracking code DeCSS, is an unconstitutional restraint on free speech. For example, the programmers argue software code is free speech that should not be reined in, while the journalists say preventing them from linking violates the First Amendment and hinders "the basic functioning of the Web."
The case began when the Motion Picture Association of America (MPAA) sued 2600, arguing that linking to or posting DeCSS code violated its copyrights. Kaplan agreed, dealing a blow to 2600 and, the amicus briefs argue, free speech on the Web in general. The EFF, which represents 2600 and is funding its defense, appealed the ruling a week ago. The case is the first major test of the Digital Millennium Copyright Act, a controversial measure designed to expand copyright law in the digital age.
The first amicus brief was filed earlier this week by a list of 17 computer scientists that reads like a who's who of the programming world. It argues that restraining the exchange of information could put a damper on high-tech research.
Those signing onto the filing include open-source leader Richard Stallman, security expert Eugene Spafford, cryptographer Ronald Rivest and Princeton professor Edward Felten.
Supporters of 2600 are hoping the high-tech heavyweights, who represent institutions including MIT, Princeton and Carnegie Mellon, will bolster their case by providing a reasoned argument from academics about the need for the free exchange of information. That's in contrast to the copyright holders' portrayal of its critics as people who just want free music and movies.
In their brief, the computer scientists argue that "code is a literary work," and should thus be entitled to the same First Amendment protections given other literary works.
The courts have not taken a unified stand on the issue of whether code is free speech. In this case, Kaplan specifically ruled that it isn't. However, in another case in California, a federal appeals court said that it is, allowing professor Daniel Bernstein to post encryption software the National Security Agency had claimed was illegal.
In a separate brief filed Friday, the ACLU banded with librarians to argue that the ruling against 2600 did not accommodate free speech and fair use concerns. In the brief, the ACLU--along with the American Library Association, the Association of Research Libraries and the Electronic Privacy Information Center--urged the appeals court to overturn Kaplan's ruling because DeCSS can be used for legal as well as illegal purposes and should not be restrained completely just because someone somewhere might misuse it. The ACLU also calls links "digital footnotes," saying a Web site operator should not be responsible for their content.
A group of journalists also weighed in on the case, mirroring the ACLU argument that they should not be prevented from linking. In its brief, a group including the Online News Association, Wired News and the Newspaper Association of America called linking a "defining characteristic of online journalism."
"Without hyperlinks, the Web's extraordinary ability to facilitate the rapid, global dissemination of information would be severely impaired," the brief states.
At least eight briefs are expected Friday from groups including the Association of Computing Machinery; Lawrence Lessig, a Stanford law professor who often weighs in on Web-related policy issues; and a coalition of law professors.
Amicus briefs are supporting documents designed to guide the appeals court in its decision, but the judges do not necessarily have to consider them.
The next landmark in the case is scheduled for Feb. 19, the deadline for the MPAA to file its reply to the EFF. Amicus briefs supporting the movie industry will follow. Oral arguments are expected to take place in April, and the judges will render their decision after that.