Are computer codes a form of free speech? Federal judge says no, barring the publisher of hacker e-zine '2600' from republishing code to unscramble DVDs.
A United States federal judge Thursday gave the film industry a victory in a high-profile lawsuit by barring a journalist from republishing software code that unlocks scrambling on DVDs, enabling them to be copied and swapped on the Internet.
Earlier this year, US District Judge Lewis Kaplan in New York issued a preliminary injunction barring the defendant Eric Corley, publisher of 2600, a top magazine and Web site of the hacker underground, from posting the code.
The plaintiffs in the case, which include Hollywood's biggest studios, Universal, Metro-Goldwyn-Mayer and Time Warner, had sought a permanent injunction.
The case has drawn wide attention as one of Hollywood's latest attempts to stem a potential flood of digital video piracy.
After several days of testimony in July, Kaplan ordered both sides to submit briefs by August 8, outlining whether computer code could be considered a legally protected form of speech.
Not protected speech
The judge rejected arguments that computer code was entitled to free-speech protection regardless of its use.
In his opinion issued Thursday, Kaplan said, "... In an era in which the transmission of computer viruses ... can disable systems upon which the nation depends and in which other computer code also is capable of inflicting harm, society must be able to regulate the use and dissemination of code in appropriate circumstance."
Charles Sims, an attorney with the firm Proskauer, Rose, which is representing the studios and their trade group, the Motion Picture Association of America (MPAA), applauded the ruling.
"This sends exactly the right message, mainly the courts will protect intellectual property and reinforce the law Congress passed so digital content could be put out safely and effectively and not widely pirated," he said.
"Today's landmark decision nailed down an indispensable Constitutional and Congressional truth: It's wrong to help others steal creative works," MPAA Chairman Jack Valenti said in a statement.
Appeal is coming
David Atlas, an attorney for Corley and his publication, told Reuters recently that Corley would appeal if a permanent injunction is issued.
"No matter who wins, this case is going to be appealed, probably all the way to the Supreme Court," he said.
Atlas and Corley's other attorneys were not immediately available on Thursday.
They have argued there were significant "fair use" and First Amendment implications in the case, which is the first to deal with such issues and likely to have large impact on the development of technology and the free flow of information.
The MPAA has maintained the case simply enforces the US Digital Millennium Copyright Act of 1998. It argues there are no free speech issues at stake, since the sole purpose of the DeCSS software in question is to circumvent copyright protection and gain unauthorised access to DVD movies.
Mirrors Napster flap
In his opinion, Kaplan called Corley's arguments baseless.
"Defendants' constitutional argument ultimately rests on two propositions -- that computer code, regardless of its function, is 'speech' entitled to maximum constitutional protection and that computer code therefore essentially is exempt from regulation by government.
"But their argument is baseless," Kaplan said.
Corley, 40, has been targeted by the movie industry for publicising the existence of a software utility known as Decode Content Scrambling System (DeCSS).
This court case represents just one facet of the entertainment industry's growing dilemma with protecting copyrighted material on the Internet as millions of users increasingly share music, movies and other digital information, often without paying for the privilege, via MP3, Napster and other technologies.
The Recording Industry Association of America (RIAA) is currently embroiled in another high-profile case against Napster, which provides as song-swap service the music industry alleges is a haven for piracy.
