Federal appeals panel takes up DVD-copying software case

By The Associated Press

05.02.01

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NEW YORK — In a case testing the scope of copyright law in the digital age, a federal appeals court panel questioned yesterday whether software that can decrypt digital movies should be considered free speech.

Kathleen Sullivan, the dean of Stanford Law School, said the software and the code for it deserve First Amendment protections because they permit individuals to make legitimate copies under "fair-use" provisions of copyright law.

Generally speaking, fair use allows individuals to duplicate copyrighted materials for education, research, criticism and other purposes without compensating the copyright holder.

Sullivan says any restrictions on the software also limit those innocent uses.

But Judge Jon Newman of the 2nd U.S. Circuit Court of Appeals was skeptical, saying fair use doesn't necessarily apply to digital formats when other formats, such as videotape, are available.

"At worse, it eliminates fair use in the most technologically preferable form," he said. "It doesn't say anything about making fair use with less technologically (sophisticated) methods."

A lower court ruled in August that while computer codes were "a matter of First Amendment concern," they are not purely expressive and can be regulated by the government.

The court barred Eric Corley, publisher of a magazine and Web site on hacking, from linking to the software, called DeCSS, from his site, 2600.com.

Corley was joined in the packed courtroom by several supporters, including two wearing T-shirts with the DeCSS code printed on the back as an expression of speech.

The software in question allows computer users to copy feature-length films from digital versatile discs onto hard drives or other recordable media and possibly share them over the Internet. The software was developed by a 15-year-old Norwegian youth.

Eight leading Hollywood movie studios sued Corley for linking to the software, arguing that making the code available violated a 1998 law, the Digital Millennium Copyright Act, aimed at controlling software piracy and the posting of copyrighted material on Web sites.

Sullivan said banning the software code would be like banning blueprints of copy machines.

"It's over-inclusive," she told the three-judge appeals panel. "It stops innocent users."

She said restricting the software could prevent a colorblind user from descrambling movies to adjust the picture or a student from including a snippet of a movie in a multimedia presentation, as permitted under fair use.

Siding with the movie industry, Assistant U.S. Attorney Daniel Alter said the software limits speech by making copyright holders more reluctant to make movies available on the Net. He also said Corley hasn't demonstrated that his links were about fair use.

"They claim to be able to stand in the shoes of would-be fair users," he said.

Judge Jose Cabranes seemed to agree. "That's the next case. There's nothing in the record to suggest they are fair users."

In a statement, Jack Valenti of the Motion Picture Association of America dismissed the defense arguments as "red herrings."

Update

Appeals court sides with Hollywood on DVD decryption
New York federal court upholds ruling against Eric Corley, operator of 2600 Magazine Web site.  11.29.01

Related

Cryptographer's arrest sparks fresh debate about copyright laws
Critics of Digital Millennium Copyright Act say it too tightly restricts public's right to access copyrighted material in electronic form.  08.02.01

DVD-hacking technology is 'pure speech,' rules California court
Appellate judges find Andrew Bunner had First Amendment right to publish links to DeCSS software.  11.02.01