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DVD decoding-as-speech fails to impress court

DeCSS on appeal

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The Digital Millennium Copyright Act (DMCA) is "a kind of digital straight-jacket" violating the rights of individuals to make fair use of copyrighted materials, Stanford University Law School Dean Kathleen Sullivan argued to the Second Circuit US Court of Appeals in Manhattan Tuesday.

Sullivan was arguing on behalf of Eric Corely aka Emmanuel Goldstein, publisher of hacker zine 2600, who was barred by a lower court from posting or linking to a utility called DeCSS which descrambles DVD content.

US District Judge Lewis Kaplan ruled last August that distributing DeCSS by any means, which he meant to include publishing links to other Web sites where it might be found, was illegal under the DMCA.

Lawyer Sullivan compared the ban with preventing someone from posting the blueprint of a photocopy machine, because it, like the DeCSS utility, might be used to infringe copyrights.

According to wire reports, the court showed little indication of being persuaded by Sullivan's appeal to free speech, and even questioned that program code contains any 'expressive content'.

However, Judge Alvin Thompson may have indicated a belief that prohibiting hyperlinks is an excessive burden on First Amendment rights when he asked if Sullivan would accept a 'modification' of Judge Kaplan's injunction.

The court agreed to accept supplemental briefs from both sides, due by 10 May, which it will entertain before ruling. ®

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