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The federal government has sided with the Hollywood establishment in a lawsuit filed by eight major film studios over copyright infringement, intervening to prevent the publication of code used to decrypt DVDs. In a filing submitted to the 2nd U.S. Circuit Court of Appeals in New York on Thursday, the Justice Department took issue with hacker Web site 2600.com’s argument that publishing the code, known as DeCSS, was a free-speech matter. “Despite defendants’ efforts to pitch this case as a classic story of the gadfly press, and to cast themselves in the role of the protagonist reporter who seeks only to convey truthful information to the public, this lawsuit is really about computer hackers and the tools of digital piracy,” U.S. Attorney Mary Jo White wrote in Thursday’s brief. Ultimately, the DOJ supported a lower court’s ruling that the DeCSS code could be censored without infringing on First Amendment rights because it attempted to control the code’s function, not its expression. The suit was filed in January 1999, two months after the code was published on 2600.com. DeCSS was first made publicly available in October 1999 on a Linux-related mailing list subscribed to by people trying to create an open-source DVD player. The code was picked up and published on several anonymously run Web sites, which the movie industry subsequently sued. Attorney Robin Gross of the Electronic Frontier Foundation (EFF), which represents 2600 in the case, said the code was published on 2600′s Web site as part of its general coverage of the controversy surrounding the code. She argues that by providing a link to the actual code, 2600 was merely engaging in a common journalistic practice — linking source material to a story. The issue at the heart of the case, according to Gross, is the Digital Millennium Copyright Act of 1998, which has no legal precedent in the courts. Gross asserts that the movie studios are suing 2600 because they were looking for an unsympathetic defendant on which to create a favorable precedent. “We [the EFF] took this on to try to show the court and the public that even though the movie studios are trying to portray the case as just some hackers trying to promote piracy, it has much larger social implications in how the public is going to be able to access and use information in a digital world,” she said. Oral arguments in the case are scheduled to begin in April. This is the second major digital copyright case in which the Justice Department has intervened. The DOJ jumped into the Napster fray in September by filing a friend-of-the-court brief taking a harsh stance against Napster’s argument that it was protected by the 1992 Audio Home Recording Act. The brief expressed specific concern that “the music industry would get nothing in return.” Related articles from The Industry Standard: Napster’s Cousin: The DeCSS Trial First Amendment Cited in DeCSS Case DVD-Hacking Trial Will Go to the Source Copyright (c)2001 The Industry Standard
Copyright Law in the New Millennium. March 20-April 2.

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