Our appeal in the DeCSS case was heard on Tuesday before the 2nd Circuit Court of Appeals. We had a packed courtroom that hung on every word after patiently sitting through five other cases. The decision could take anywhere from a couple of weeks to several months to be announced.
Dean Kathleen Sullivan of the Stanford Law School presented our arguments before a three judge panel. She explained why the decision of Judge Kaplan last August needs to be overturned and how the Digital Millennium Copyright Act could potentially destroy fair use. She described its effect as creating a "digital straitjacket" where fair use and free expression are both crippled and unfairly controlled by the entertainment industry.
Dean Sullivan paralleled the banning of the DeCSS code on the 2600 website with that of blueprints for building a copying machine. While some potential exists for infringing uses, there are many legitimate applications for such knowledge. In addition, such a ban is overinclusive and does little, if anything, to prevent piracy.
Judge Jon O. Newman asked Dean Sullivan many more questions than the other two judges combined, extending by far the time allocated for our arguments. He seemed curious if the concept of fair use by right extends to the most advanced forms of technology. In other words, is it acceptable for fair use to not exist with regards to DVDs if it does exist for videotapes? Dean Sullivan responded that this was akin to expecting someone in modern society to get by with a horse and buggy instead of a car.
If the DMCA is to pass Constitutional muster, the Court must find that there is no less restrictive way for its goals to be achieved. One example of a less restrictive law given was the 1992 Audio Home Recording Act which prevents second generation copies of Digital Audio Tapes from being made by mandating copy control hardware for all DAT recorders.
Dean Sullivan used Professor Edward Felten's recent run-in with the music industry over his research paper on SDMI as a compelling example of the chilling effect our case has had on legitimate research, and the inadequacy of the narrow exemptions in the DMCA.
Assistant U.S. Attorney Daniel Alter represented the U.S. Department of Justice's interests in defending the DMCA. Alter started his argument by saying that nobody would be arguing this case if the software involved interfered with aviation systems. He equated the DeCSS code with a "digital crowbar." Sullivan later retorted that crowbars are completely legitimate tools and that we don't restrict their use simply because of the potential for abuse.
Alter said that the DMCA fixes a flaw in both the copyright law and the AHRA, which never took into account the potential of the Internet. Even a single copy in "cyberspace" represents a loss of control and that's what the DMCA is meant to address.
He also went on to support the banning of links, coming up with an analogy that will be long remembered by those who heard it. Links are like shuttle buses, he said. And these particular buses are shuttling people to a place where contraband is being handed out. With that in mind, it would be perfectly acceptable to shut down the shuttle buses. And that's what he said we were doing when we provided links to other sites with the DeCSS code.
He accused us of aligning ourselves with all sites that we linked to which contained the DeCSS code. Unlike entities like The New York Times, our goal was to disseminate the program in his view. It's an odd position considering that the program is basically information and that disseminating information should be the goal of any publication.
The hearing wrapped up with arguments from Charles Sims, the attorney representing the Motion Picture Association of America. While he admitted that there was no documented instance of harm to the industry by the DeCSS program, he said that it posed an "actual threat of harm" and that the injunction against 2600 was needed to prevent "a Napsterization of motion pictures."
There has been sporadic press coverage of Tuesday's hearing. However, nearly all of the pieces continue to make the mistake of defining this case as one involving DVD copying. As we've said countless times, this is not what it's about at all. The DeCSS case is about content control which affects the ability of consumers to use technology that they have already purchased - in the case of DVDs, this includes skipping commercials, changing colors, using excerpts, or watching a DVD from a foreign country. All of these are forbidden on many DVDs as is playing a DVD on an alternative operating system of the consumer's choice, such as Linux.
Both sides have until May 10 to file additional clarifications. Then the waiting game will begin.
We expect to have an audio recording of the hearing available in a couple of days on this site.