U.S. Appeals Court Upholds Ban on Posting DeCSS
Posted Sep 1, 2002

Chalk up one more victory for Hollywood in its fight against content piracy—or at least what it perceives as such. In early July, a U.S. appeals court upheld the ban on posting DeCSS—the code that allows would-be dupers (or legitimate fair users, depending on whom you ask) to crack DVD's Content Scrambling System (CSS). The major movie studios had sued hacker magazine 2600 in 2000 for posting the code on its Web site, arguing that it violated the Digital Millennium Copyright Act (DMCA).

2600's case had become something of a cause célèbre among hackers and free-speech advocates, who worry that the crackdown on content copying in the digital realm is a violation of content owners' First Amendment rights and their rights as consumers to time- or space-shift the music and video they purchase. The San Francisco-based Electronic Frontier Foundation had appealed the case on 2600's behalf, but a 2nd Circuit Court of Appeals refused to hear the magazine's challenge to a lower court's ban on posting DeCSS.

The magazine could have taken the case to the U.S. Supreme Court, but decided against it, according to a statement issued following the district court's ruling. "Our chances of the case being taken up by the Supreme Court were very slim," said the statement. "It was the nearly unanimous opinion of all the legal experts we consulted that the current Supreme Court wouldn't take our side. Either of these results could have caused a setback to the overall fight that we're engaged in."

Without citing specifics, an EFF spokesperson said she was confident that future challenges to he DMCA would stand on stronger legal ground than the 2600 case. "Later cases will provide a better foundation for the Supreme Court to act on the problems created by the DMCA," said EFF legal director Cindy Cohn.

Hacker Jon Johansen developed DeCSS in 1999 so that he could develop DVD movie player software for Linux environments. But when 2600 posted the code on its Web site, eight major Hollywood movie studios sued, and a federal judge ruled that the posting of the code did not fall under First Amendment protection because it is "content-neutral."

The DMCA is under attack on numerous fronts, with Virginia Rep. Rick Boucher vocally challenging the act in Congress and 321 Studios filing a complaint against movie studios that attempted to block the sale of its DeCSS-powered consumer DVD software-copying package DVD Copy Plus. At press time, no decision had been issued in that case, nor in the studios' request that 321's suit be dismissed.

-Eric Schumacher-Rasmussen