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Dramatically different views of that question were presented in final briefs submitted Tuesday in the case of a man accused of violating the Digital Millennium Copyright Act by publishing a code that undermines encryption technology designed to block the copying of Digital Versatile Discs. Lawyers for the movie industry, which is fighting to protect subversion of a scrambling system called CSS, say that the answer is no — and that circulation of the DeCSS software program by defendant Eric Corley is not speech but conduct. But lawyers for Corley say that DeCSS is expressive speech and that a permanent injunction preventing Corley from distributing DeCSS over the Internet would be contrary to the First Amendment. They also argue that if Southern District Judge Lewis A. Kaplan grants the injunction sought by the movie industry, he will strike a crippling blow to the fair use doctrine in the digital age. The DMCA, 17 USC Section 1201, bars the distribution of any technology or device that allows users to “circumvent” a device put in place to protect the unauthorized use of a copyrighted work. The movie industry, in Universal City Studios v. Corley, 00 0277, sued Corley and two others in January, saying that the widespread dissemination of DeCSS was a clear violation of the DMCA. Kaplan agreed and granted a preliminary injunction against Corley. His co-defendants chose to settle the case. But at the close of trial, Kaplan told lawyers he wanted briefs on the question of how DeCSS can be characterized in light of First Amendment jurisprudence on speech and conduct. The judge also said he was mindful that the Supreme Court case law attempting to pigeonhole various kinds of expression as speech or conduct might not be helpful in this context. For the music industry, the answer depends on how the question is posed. “The question presented is not whether computer code can be sufficiently expressive to warrant First Amendment protection,” said Leon Gold of New York-based Proskauer Rose and his co-counsel in their brief. “Rather, the proper question is whether DeCSS — particularly in its executable form, but also in any other form posted or sought to be posted by the defendants — is sufficiently expressive to warrant First Amendment protection.” And the answer, Gold said, is that DeCSS is “a decryption device and, in that respect is functionally not indistinguishable from a key or a virtual machine.” He argues that Congress has the view that barring distribution of DeCSS is no different than the “unauthorized provision of an automobile key.” Gold goes on to argue that “at most, application of DMCA to DeCSS has an incidental impact on speech.” Even assuming that DeCSS is “sufficiently expressive” to be speech, he said, the government can proscribe unlawful conduct even if it is imbued with protected elements of speech. “Here, assuming arguendo that the court finds some expressive aspect to DeCSS … the DMCA represents unquestionably permissible governmental regulation of a particular course of conduct that causes substantive harm …,” he wrote. “The First Amendment does not prohibit the enforcement of laws protecting intellectual property,” he said. “That premise holds true whether such laws must be applied in the ‘brick and mortar’ world or in cyberspace.” As one example, he cited laws Congress has passed forbidding manufacture of and sale of cable and satellite television descramblers. But Corley and his lawyer, Martin Garbus of New York’s Frankfurt, Garbus, Klein & Selz, argue that the plaintiffs have consistently missed the point. The movie studios, they say, want such a restrictive interpretation of the DMCA that even scientific research and discussion of the technology would be effectively prevented. As an alternative to declaring the DMCA unconstitutional as overbroad and vague, Corley wants Judge Kaplan to find that Congress could not have intended to infringe on traditional fair use doctrine. “Plaintiffs are attempting to rewrite the Copyright Act by reading a single provision of the statute in a vacuum,” Garbus said in his brief. “Permitting a computer program like DeCSS, which provides consumers with the necessary means to exercise their fair use rights in a variety of ways, including quoting from a movie, playing it on the operating system of their choice, evading improper coding restrictions, and the like, is no more than the recognition that Section 1201 must track limitations on copyright included in the Act.” Under the movie studios’ argument, they say, Congress must have intended a “radical and fundamental change” in copyright law “by prohibiting any access to digital copyrighted works, even if such access is necessary to make fair use by those in lawful possession of the work.” “A far more rational view is that Congress intended the anti-circumvention provisions of Section 1201 to be tools of limited purpose, designed to assist the copyright holder in enforcing the traditional rights granted to copyright holders, while preserving the existing, crucial, statutory limitations on each of those rights.” Kaplan is expected to issue a ruling on the matter shortly.

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