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A lawsuit that sets Hollywood and other intellectual property owners against a Web journalist, computer programmers and free-speech advocates is shaping up into the first legal testing ground in the struggle to define the constitutional boundaries of copyright in cyberspace. The case, Universal City Studios Inc. v. Corley, 00-9185, will be heard before the 2nd U.S. Circuit Court of Appeals on Tuesday. Stanford Law School Dean Kathleen Sullivan, a renowned constitutional scholar, will present the defendants’ case. Charles S. Sims, a partner at Proskauer Rose, and Daniel L. Alter of the U.S. Attorney’s Office for the Southern District of New York, will argue the plaintiffs’ position. The case comes up on appeal from a Southern District of New York decision last August enjoining the defendants, the self-labeled “hacker quarterly” 2600 Magazine, and its publisher, Eric Corley, from posting or even linking to a source code known as DeCSS. The software program, written largely by a 15-year-old Norwegian boy named Jon Johansen, can decode DVD videos protected by the industry’s Content Scrambling System. When it appeared on the Internet in the fall of 1999, Hollywood’s eyebrows rose in alarm: With this program, they feared, the Napsterization of movies was just around the corner. So they sued 2600 Enterprises, which owns the magazine and Web site, and Corley, along with two others who subsequently settled out of court, seeking an injunction under the anti-circumvention provision of the 1998 Digital Millennium Copyright Act to prevent them from publishing DeCSS. SUICIDE PACT U.S. District Judge Lewis A. Kaplan sided with the movie studios, granting a permanent injunction against 2600. Suggesting 2600′s position would render the Constitution a “suicide pact,” the judge rejected the defendants’ free-speech arguments, reasoning that because the code was “functional” it should be regulated more strictly than other types of expression. Now the suit is before the 2nd Circuit. Lawyers for 2600 argue that the lower court erred in ruling that the First Amendment does not protect DeCSS. They contend the software program, like any computer code, is a means of expressing ideas, in this case in mathematical form, and 2600 lawfully published the code in the context of a news story. Edward Hernstadt, a partner with Frankfurt, Garbus, Kurnit, Klein & Selz, who is representing the defendants, explained: what this decision means “is that you can’t publish certain types of information on the Internet.” On a more practical level, he added, “digital media has now become the first media format that is off limits for fair use.” Traditionally, the copyright statutes have allowed “fair use” of a copyrighted work, such as making a copy for personal use. The movie studios counter that the court’s finding was correct. With the DMCA, they argue, Congress sought to regulate de-encryption code such as DeCSS not as speech but as conduct — the supplying of the means for copyright infringement. Thus, they say, the code is subject to intermediate scrutiny at best, and the government’s interest at stake — preventing the piracy of digital copyrighted works — easily meets that standard. Proskauer’s Sims, who is representing the Motion Picture Association of America in the case, supplied an analogy from the famous 1968 case, U.S. v. O’Brien, 391 U.S. 367, in which the U.S. Supreme Court ruled that a law forbidding draft card destruction also banned burning one’s draft card as a gesture of protest. DECSS HAIKU The Corley case has drawn a flurry of attention, and many observers predict it will ultimately end up before the U.S. Supreme Court. Groups ranging from the National Football League to the American Library Association have thrown their hats into the ring, signing on to a dozen amicus briefs, eight in support of 2600 and four in support of the MPAA. The debate outside the courtroom has been just as intense. A Web search of “DeCSS” for this article, using the search engine Google, produced more than 110,000 hits. There is even an online gallery put up by a computer-science professor at Carnegie Mellon University displaying the artistic contributions of the decision’s critics, including a haiku, a musical composition, a game and a movie, all of which include the code or instruct the audience how to recreate it. DeCSS has become the poster child in the dispute over the control of digital media because for Hollywood, the software code brought home its inability to thwart piracy by locking up DVDs with current encryption technology. On the other hand, civil libertarians, programmers and others were alarmed to find the court embracing what they see as an overprotective and possibly unconstitutional statute that could spell the death knell for fair use of copyrighted material on DVDs. DMCA was “an opportunity missed,” said Jonathan Zittrain, a Harvard Law School professor and faculty co-director for the Beekman Center for Internet & Society. “There is an ongoing debate about whether the anarchists — the Napsters and Gnutellas of the world — are going to prevail, or whether the copyright owners are going to lock up their works so tightly” that even fair use is prevented, he said. With this statute, “Congress blew it,” Zittrain said. It goes too far in protecting copyright owners and might even be unconstitutional, he said. Should the court uphold the injunction against 2600, the effect on the Internet community as a whole will be relatively minor. Since DeCSS, a number of more efficient de-encryption codes, one as short as seven lines, have made their way onto the Internet. Yet the message would be unmistakable, and Sims said he was confident that “when the 2nd Circuit confirms,” posting or linking to DeCSS will stop. The defendants contend that the studios chose to sue 2600 precisely for this reason. The magazine’s gadfly reputation and Corley’s notoriety — he uses the nom de Net Emmanuel Goldstein, after the rebel leader in George Orwell’s book “1984″ — made them “a convenient and perhaps seemingly easy target for the studios in their attempt to set a precedent with much broader ramifications.” And Judge Kaplan’s decision does appear to reflect a distaste for the defendants. Not only did he liken their position to a “suicide pact,” but he described the publication of DeCSS as a “contagious disease.” Whether the 2nd Circuit will agree remains to be seen.

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