First Amendment Cited in DeCSS Case

SAN FRANCISCO (07/26/2000) - Eight major movie studios' lawsuit against Web zine publisher Eric Corley came to a close Tuesday, but a decision is several weeks away. Judge Lewis Kaplan may or may not hear oral arguments in the next few days, depending on the wishes of the respective counsel. Either way, both sides are scheduled to file their final briefs Aug. 8. Judge Kaplan will issue his decision sometime after that date.

The DVD case pits the Hollywood studios against Internet journalist Corley, who posted DeCSS on his Web site, 2600.com, the self-proclaimed "hacker journal."

DeCSS descrambles the encryption system used by the film industry to keep people from making copies of DVD movies.

The prosecution argues that DeCSS runs afoul of the Digital Millennium Copyright Act, which prohibits the circumvention of technologies used to protect copyrighted materials. The defense insists that DeCSS, which was written as part of an open-source project to allow the Linux operating system to play DVDs, merely provides consumers with the "fair use" (such as taping a CD so that you can play it in your car) rights Americans have traditionally enjoyed.

The defense's last witness, computer scientist David Touretzky, provided something of a grand finale Tuesday, when he argued that the code is language and therefore subject to First Amendment protections.

That argument appeared to carry some weight with Kaplan. While he noted that "probably nothing much has changed with respect to his analysis of the DMCA itself," he also admitted to having found Touretzky's arguments regarding the expressive nature of computer code "persuasive" and "educational." This could be a crucial point in the case because the defense's argument rests on the grounds that enjoining people from posting the program amounts to a violation of the First Amendment.

Frustrating the odds-makers, though, the judge also noted that even if computer code were considered expressive, "which way that cuts is another matter." He pointed out that even if speech is recognized as expressive, it does not enjoy unlimited protection under the First Amendment.

Regardless of the outcome, an appeal is highly likely. "We are very confident that we laid a strong and solid record in this court to take to the appellate court, where civil liberties are taken more seriously," said Robin Gross, chief counsel at the Electronic Frontier Foundation, a cyber-libertarian group which is supporting the defense.

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