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Depending on who is talking, the software that allows people to copy movies from Digital Versatile Discs is either a useful tool for scientific study and journalistic inquiry — or it is a burglar’s crowbar designed for breaking, entering and stealing. Tuesday, those different views on the de-encryption software DeCSS and the constitutionality of the law that prevents its dissemination over the Internet were tested by three judges of the 2nd U.S. Circuit Court of Appeals. Before a packed courtroom on the fifth floor at 40 Foley Square, Stanford Law School Dean Kathleen Sullivan tried to convince the panel that the Digital Millennium Copyright Act (DMCA) is unconstitutional, and that an injunction issued last year blocking defendant Eric Corley from distributing DeCSS should be vacated. The burden was on Sullivan because the judge who issued the injunction, Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York, had agreed with major motion picture companies that allowing the code to be transmitted over the Internet was akin to publishing the combination to a bank safe in a newspaper of national circulation. Sullivan began by noting that the DMCA does not “prohibit aiding and abetting copyright infringement,” but instead it bars the dissemination of any device that is designed to control access to DVDs. The problem with the DMCA, Sullivan said, is that it runs smack into the fair-use exception to copyright protection recognized by Congress. “It’s a statute that protects against access, not against use,” Sullivan said, adding that the DMCA is like Congress deciding that no one “can publish the blueprint for a copying machine, because it might well be used” to violate the copyright laws. But Assistant U.S. Attorney Daniel L. Alter had his own analogy as he defended the DMCA and the right of Congress to outlaw DeCSS. “It is as if we were talking about a software program that shuts off navigational systems on airplanes or shuts down smoke detectors,” Alter said. “I think the First Amendment would not bar the government from banning the distribution of that kind of software.” Charles S. Sims of Proskauer Rose, who represented the movie studios, said Judge Kaplan had made “extensive factual findings about the harm faced by the movie studios,” if DeCSS was allowed to circulate freely. The 2nd Circuit panel consisted of Senior Judge Jon O. Newman, Judge Jose Cabranes and Judge Alvin W. Thompson of the U.S. District Court in Connecticut, sitting by designation. One problem that appeared to concern the judges is that even though Corley and his compatriots had already disseminated the DeCSS software code over the Internet, no proof was offered at trial that someone had actually used it to copy a movie. Judge Kaplan nonetheless found that the movie studios faced a serious threat to their copyrighted works as a result of the distribution of DeCSS. So when Sullivan said Congress failed to “come up with any empirical record that the harm,” of bootleg DVD recordings existed — a finding she said was needed to pass such sweeping legislation — Judge Newman said that “now your point is that this anti-encryption system doesn’t go far enough.” But Sullivan said her point was that the DMCA was “over-inclusive,” in that it prohibits innocent users from employing the DeCSS technology for legitimate reasons. ALLAYING CONCERNS Alter countered later that Congress, in passing the DMCA, was “trying to allay the concerns of content providers that the inherent nature of the digital world was not a threat.” “It wasn’t just to stop infringement, it was a carrot, to get more speech on the Internet,” Alter said, drawing some chuckles from the computer specialists in the courtroom. “You don’t want her [Sullivan] to occupy the ground as a proponent of the First Amendment?” said Judge Cabranes, drawing more laughter from the benches. “Certainly not,” Alter responded. Sullivan, whose presentation took more time, and drew more questions, than did Alter and Sims combined, told the court that “all you have to do is find that the statute has not been narrowly tailored.” “The copyright act is not a protection for property that is absolute,” she said in rapid-fire delivery. “It represents a bargain between property and fair use … this act shifts the bargain to the property side.” When Judge Thompson asked twice, “What is the expressive content?” of DeCSS, Sullivan mentioned the “beauty” of the program, its “scientific use” and its ability to be incorporated into a poem or “haiku.” But Judge Newman challenged Sullivan’s claim that DeCSS was speech pure and simple, and he referred to Judge Kaplan’s opinion. Newman said. “What he said was that there is a functional aspect that is so dominant and imminent and apparent — that the speech element need not concern us.” Another point that concerned the panel, and one that prompted even more analogies, was the scope of Judge Kaplan’s injunction. In dealing with Corley, Kaplan not only blocked Corley from publishing DeCSS on his Web site, “2600.com” — he also barred Corley from posting on his Web site links to other sites where DeCSS could be found. Searching for a comparison that would put the issue of providing links to other sites on the Internet in perspective, Judge Newman asked Alter if The New York Times could be prosecuted for publishing a list of book stores that sold obscene materials. Alter said, “maybe,” but added that it depended on the intent of the publisher and “whether they were intentionally facilitating the distribution of obscene works.” Alter also said that in dealing with the collision between the Internet and traditional copyright law, Congress was forced to be practical. “You need to only make one copy to have a catastrophic infringement — anyone can go on the Internet and download it,” he said. Judge Cabranes wanted to know if, now that DeCSS is available over the Internet, “whether it is possible to achieve the purposes of the injunction.” Alter conceded that to some extent “the genie is out of the bottle,” but added that “Congress does not have to create a perfect cure.” Addressing the part of the injunction that bars “linking,” Sullivan told the panel that even if they are unwilling to find the statute unconstitutional, the judges should “get rid of the linking aspect of the injunction.” The appeals court took the matter under submission.

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