The linking question
The ruling is "not aimed at speech," said Chuck Sims, a partner at law firm Proskauer Rose who's arguing the case for the MPAA, which represents major film companies such as Universal Studios, Warner Bros, Metro-Goldwyn-Mayer, Walt Disney, Sony Pictures Entertainment, Paramount Pictures and 20th Century Fox Film.
"The law doesn't tell anyone they can't speak," he added. "All the law says is that you can't distribute to the world a device for circumventing technology that protects copyright."
In addition to copyright issues, the DeCSS case touches a broader dispute about linking. In its brief, a group of journalists argued that upholding the ruling, which prevents linking, could hinder "the basic functioning of the Web."
UCLA's Volokh, who is not involved in the case, said an appellate ruling upholding Kaplan's decision could have dire consequences for linking on the Web.
"The logic of this decision is that it's okay to enjoin the publication of links if these links are going to help somebody break the law," he said. For example, taken to its extreme outside the realm of copyright, Volokh said the ruling could put reporters at risk if they write about online gambling and provide a link to gaming sites. "It could (close) the door to all other sorts of linking."
The MPAA's Sims said such worst-case scenarios are beyond the scope of this case.
"The law doesn't say on its face that nobody can link," he said. "What's scary is the Chicken Little approach that the EFF and others share."
Dan Burk, a University of Minnesota law professor who signed onto a brief in support of 2600's case, isn't optimistic the appeals court will overturn the ruling.
"The court will try very hard to give the movie industry as much as they can, both because Congress wanted them to and because they stand to lose so much money," he said. The trick "is to show them they shouldn't go too far."
