2 COURTS UPHOLD DMCA IN DECSS CASE, REJECT SUIT VS. RIAA

Hollywood studios scored 2nd round win in original DeCSS case in N.Y.C., where 3-judge panel of 2nd Court of appeals upheld Aug. 2000 lower court ruling prohibiting Eric Corley and his 2600 magazine from posting DeCSS on its Web site or linking 2600 site to others that post program. Injunction followed Jan. 2000 lawsuit by 8 movie studios against Corley, a.k.a. Emmanuel Goldstein, after he continued publishing DeCSS unveiled in fall 1999 by Norwegian hackers despite studio’s cease-and-desist requests.

In upholding injunction, appeals court said publishing DeCSS code wasn’t protected by First Amendment as free speech because CSS software it descrambled was “content neutral” and had important purpose. Decision in favor of studios said: “Once the DVD is purchased, DeCSS enables the initial user to copy the movie in digital form and transmit it instantly in virtually limitless quantity, thereby depriving the movie producer of sales.” Judges characterized DeCSS as “skeleton key that can open a locked door, a combination that can open a safe or a device that can neutralize the security device attached to a store’s products.” Corley’s lawyers had no comment on decision. Defendant has option of requesting hearing by full 2nd Circuit Court or going to U.S. Supreme Court.

Other DMCA-related ruling came in lawsuit against RIAA by Electronic Frontier Foundation (EFF), representing group of researchers who had attempted to present their work on cracking Secure Digital Music Initiative (SDMI) digital watermark. After RIAA and SDMI wrote letter in April informing researchers of legal consequences under DMCA for releasing hack, EFF filed suit to get clear determination that publishing or presenting scientific research was protected by First Amendment. In meantime, RIAA and SDMI had denied they had threatened legal action and said Princeton U. prof. Edward Felten and colleagues were free to air their research.

Suit was dismissed by U.S. Dist. Court, Trenton, N.J., Wed. Judge Garrett Brown granted motions for dismissal by defendants and Justice Dept., ruling that because RIAA and SDMI had said they wouldn’t sue Felten and group, there was nothing at issue in EFF’s case. RIAA was pleased with dismissal. “We are happy that the court recognized what we have been saying all along: There is no dispute here,” said Cary Sherman, RIAA senior exec. vp and gen. counsel: “As we have said time and again, Professor Felten is free to publish his findings.”

EFF said judge hadn’t addressed First Amendment issues in case and lamented that “plainly hostile” judge dismissed suit “after less than 25 minutes of debate.” EFF said it intended to appeal. “The judge apparently believes that the fact that hundreds of scientists are currently afraid to publish their work and that scientific conferences are relocating overseas isn’t a problem,” said Robin Gross, EFF intellectual property attorney: “This decision is clearly contrary to settled First Amendment law, and we're confident that the 3rd Circuit Court will reverse it on appeal.”

Meanwhile, EFF is seeking dismissal of its own in Cal. case where DVD Copy Control Assn. (DVD CCA) sued Andrew Bunner and others for posting DeCSS on Web. DVD CCA, which is licensor for CSS encryption, filed suit under Cal. trade secret law Dec. 1999 in Cal. Superior Court, San Jose. In seeking dismissal, EFF said law prohibited injunctions once trade secret became generally known to public.

As evidence, group cited widespread DeCSS postings, as well as academic study of CSS algorithm and DeCSS. EFF also argued that DVD CCA had ceased policing CSS trade secrets, “claiming it would be too burdensome for it to examine every Web site now posting a DVD descrambling program.” EFF told court that “DVD CCA seeks to put the court in the impossible position of trying to put the genie back in the bottle.” At our deadline, date for hearing on dismissal motion hadn’t been set.