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Court upholds prohibition against hyperlinks to decryption code

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  1. Content Restrictions

    NMU         SECOND CIRCUIT         Copyrights & Trademarks         Dec 6, 2001    

Court upholds prohibition against hyperlinks to decryption code

  • The Second Circuit upheld prior restraints against an Internet magazine that provided hyperlinks to Web sites with the DeCSS decryption code for copying DVD movies.

Citing the entertainment industry’s fear of illegally mass-produced and distributed DVD movies, the U.S. Court of Appeals in New York City (2nd Cir.) recently upheld prohibitions against a Web site operator from publishing the DeCSS decryption code.

In a Nov. 28 ruling, the court affirmed a district court ruling that barred Eric Corley from publishing on the 2600.com Web site hyperlinks that direct readers to copies of the program.

Nine major Hollywood studios emerged victorious in the unanimous decision to prevent Corley from posting the DeCSS code, developed by a Norwegian teenager. Corley published the computer code and links to other Web sites used for copying encoded DVD movies online and in a printed magazine.

DeCSS makes it possible for computers to read and copy DVD movies that are otherwise protected from copying by the Content Scrambling System. Only licensed DVD players are authorized to unscrambled the code.

Corley’s case was the most significant challenge to date for the Digital Millennium Copyright Act, a law enacted by Congress in 1998 to strengthen copyright protection by preventing the distribution and use of antipiracy tools.

The appellate court agreed with District Judge Lewis Kaplan, who ruled that the DMCA was content neutral in prohibiting Corley from posting the DeCSS computer program. The court also affirmed Kaplan’s decision to prohibit Corley from posting links to other Web sites that publish DeCSS.

“The DMCA and the posting prohibition are applied to DeCSS solely because of its capacity to instruct a computer to decrypt CSS,” the court wrote. “That functional capability is not speech within the meaning of the First Amendment.”

Appellate justices in New York were faced with a tricky decision in the case: either tolerating some speech restrictions to prohibit illegal decryption or tolerating some decryption “in order to avoid some impairment of communication.”

But the ability of DeCSS to crack protections that safeguard copyrighted DVD’s, combined with Internet technology that makes rapid global distribution for pirated movies possible, convinced the appellate court that significant losses in sales were on the line for Hollywood studios that filed suit against Corley.

According to the circuit court, DeCSS “is like a skeleton key that can open a locked door.”

And it determined that the ability of a digital code used to make copies of protected DVD movies outweighs concerns of computer scientists and free speech advocates.

“The linking prohibition is justified solely by the functional capacity of the hyperlink,” wrote Circuit Judge Jon O. Newman in a 71-page ruling.

In a related case in Trenton, N.J. on the same day, U.S. District Judge Garret Brown declined to hear arguments from Princeton professor Ed Felten, who wanted to publish his findings about vulnerabilities in technology protecting digitally-stored music.

According to the Electronic Frontier Foundation, an organization defending both Felten and Corley in court, the professor wanted to publish his findings about the recording industry’s digital watermark technology at a conference. He was dissuaded from doing so, said Felten, when the Recording Industry Association of America threatened to sue him for releasing those findings.

The RIAA later held a press conference denying the allegations and filed a motion to get the Felten case dismissed.

“We are happy that the court recognized what we have been saying all along: there is no dispute here,” RIAA senior executive vice president Cary Sherman said in a statement. “Professor Felten is free to publish his findings.”

The professor and many computer scientists who analyze encryption codes are disappointed the district court chose not to issue a judgment about potential protections for those who fear a backlash if they attempt to publish their work. They fear the Digital Millennium Copyright Act may make it illegal to discuss the codes themselves when presenting their findings to the public.

“It chills the whole scientific field of research into encryption technology,” said Robin Gross, intellectual property attorney for the Electronic Frontier Foundation. “Now scientists actually have to put themselves at risk in order to get a ruling. We will have weaker security in society as a result.”

(Universal Studios, Inc. v. Eric Corley; Counsel: Kathy Sullivan, Stanford Law School; Felten v. RIAA; Counsel: Gino Scarcelli, E.F.F.) GR


© 2001 The Reporters Committee for Freedom of the Press

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