Meet the players
The case has attracted a wide variety of participants, including the NFL; the American Society of Composers, Authors and Publishers; and the Screen Actors Guild, which have filed amicus briefs urging the appeals court to uphold the ruling or risk rampant spreading of pirated works on the Web. In addition, the Justice Department jumped into the case in February, arguing that Kaplan had properly enforced the DMCA and saying the suit is "really about computer hackers and the tools of digital piracy."
On the other side are computer scientists, journalists and librarians, who have filed briefs calling Kaplan's ruling a severe threat to free speech.
"The case gets very close to overstepping the boundaries of both academic freedom and freedom of speech," said MIT Computer Science Professor Harold Abelson who, along with 16 other world-famous programmers, signed onto a brief in support of 2600's side. "Once you start saying that simply a computer program is a device that can be restricted or regulated, that runs smack against freedom of expression."
During oral arguments Tuesday before the 2nd US Circuit Court of Appeals in New York, each side will get 20 minutes to present its views and answer questions from the panel. The EFF will speak first, and then the MPAA and the Justice Department will split their 20 minutes.
Courts have been divided over whether code is free speech. In the DeCSS case, Kaplan has ruled that it isn't. But in another case, a US federal appeals court in California ruled that the National Security Agency's attempt to prevent Professor Daniel Bernstein from posting encryption software was a restraint on freedom of expression.
Another major issue in the case is the anti-circumvention clause of the DMCA, a tenet prohibiting possession of any device that could be used to circumvent copyrights. The MPAA is arguing that DeCSS is one such device.
Abelson worries that an MPAA victory could inspire other copyright owners to push to broaden the definition of circumvention measures.
"Anybody who has any software program at all that they want restricted can just call it a circumvention device," Abelson said.
Just last week, the Secure Digital Music Initiative, an industry-backed group working to secure music, sent threatening letters to a group of professors who wanted to present a paper explaining how they cracked some digital watermarking code. The SDMI told Princeton Professor Edward Felten that he and his colleagues risked violating the DMCA if they gave the speech; the researchers backed down.
MPAA attorneys already have said Kaplan's decision gives the entertainment industry extra muscle to go after those they think are violating copyrights.
