This autumn saw significant rulings go against the EFF's side, leaving them discouraged, but not ready to surrender. Until these recent negative rulings, the pro-DeCSS group had been riding high, buoyed by the outcome of a ruling on an appeal in a California state court. Filed in December 1999, this suit had been brought by several DVD player manufacturers under the banner of the DVD Copy Control Association. The defendants were 72 Web sites accused of posting DVD descrambling utilities (DeCSS being the primary one) or links to other sites with such utilities. By doing so, according to the plaintiffs, the defendants were violating California trade secret laws.
The defense in this case argued that the posting of computer code on a Web site is a form of speech protected by the First Amendment, and the court eventually agreed. In a November 2001 appeals court decision, the judges ruled that "Although the social value of DeCSS may be questionable, it is nonetheless pure speech." The decision went on to say: "Our respect for the legislature and its enactment of the [California state trade secrets law] cannot displace our duty to safeguard the rights guaranteed by the First Amendment."
But the free speech argument has been far less successful in a case before a federal court in New York that has become popularly known as the 2600 case. This case began in January 2000 when eight Hollywood studios—members of the Motion Picture Association of America (MPAA)—brought suit against three Web sites, including the one run by a hacker publication called 2600 Magazine. This time, however, the plaintiffs invoked the controversial 1998 Digital Millennium Copyright Act (DMCA).
Many civil libertarians, including attorney Wendy Seltzer, feel that the DMCA is a bad law that should be repealed. Seltzer is a Fellow at the Berkman Center for Internet & Society at the Harvard Law School and one of the leaders of the center's OpenLaw project. She believes prior copyright laws did a good-enough job of protecting the rights of content owners. "The DMCA goes too far," she says. "The DMCA gives publishers control while taking away the rights of the users."
The DMCA worked well for the 2600 case plaintiffs, who won the first round in August 2000 when U.S. District Judge Lewis Kaplan rejected the First Amendment argument and ordered the Web sites to stop posting DeCSS, as well as any links to it. The EFF promptly appealed the Kaplan decision, but the appeals court upheld it on November 29, 2001, again summarily rejecting the defense's free speech argument.
This leaves the defense with few options beyond taking the case to the last stop—the U.S. Supreme Court. But Seltzer sees this step as unlikely in the near future. "I doubt that the Supreme Court would take this case on at this point," she says. "They like to wait until other similar cases have been heard before various federal district courts before they jump in and arbitrate," she says.
Seltzer believes that the defense attorneys in these DeCSS/DMCA cases have been relying too heavily on the First Amendment argument and have not hammered home the argument that using a descrambing program for one's own personal use is covered by copyright law's "fair use" provision. The courts "just need to see some better examples" of fair use that has been hampered by the excessive restraints of the DMCA, says Seltzer.
"Recent decisions have been colored by the courts' view of the defendants," says Seltzer, in reference to the 2600 case. "Rather than seeing serious scientists, the courts have been seeing hackers," she says.
Even if the 2600 case doesn't go to the Supreme Court, "This won't be the last challenge to this law [the DMCA]," Seltzer assures. And so while the self-proclaimed Internet freedom fighters have taken some blows lately, it is clear that the defense does not rest.