Feeds

DeCSS arguments invoke free speech

For and against

  • alert
  • submit to reddit

The Power of One eBook: Top reasons to choose HP BladeSystem

Supplementary briefs have been submitted by both contestants in the appeal of 2600 publisher Eric Corely aka Emmanuel Goldstein, who was barred from posting or linking to the DeCSS descrambling utility last summer by US District Judge Lewis Kaplan.

After hearing oral arguments for and against publishing DeCSS, which defeats the CSS (Content Scrambling System) of DVDs back on 1 May, the Second Circuit US Court of Appeals in Manhattan requested supplementary written briefs addressing the issue of whether Corley's First Amendment rights as a publisher had been violated by the district court.

On the 2600 side, lawyer Kathleen Sullivan argues, among other things, that outlawing links to DeCSS inhibits the free exchange of technical information.

"A link is simply a reference, indicating that certain information is available in a particular place. A link should be enjoined when, and only when, the court would also enjoin a similar reference by a print publication," she reasons.

As for the industry's claim that making DeCSS available inspires criminal activity and must therefore be enjoined, the brief cites the US Supreme Court, which found that "it would be quite remarkable to hold that speech by a law abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party."

"Instead, speaker liability is not allowed 'unless that speech is capable of producing imminent lawless action,'" the brief notes.

On the other hand, industry lawyer Charles Sims claims that DeCSS is not speech, or even information, and therefore is not entitled to First Amendment consideration.

"DeCSS is a device (configured as a program, although it could as easily have been configured as a physical machine....) that accomplishes a mechanical task, namely descrambling and decrypting an encrypted, scrambled DVD and copying its content to a hard drive. It is no more 'speech' than a key to a library or museum," he reasons.

"DeCSS is not information within the meaning of the First Amendment, much less a message; it is, in the government's apt phrase, a 'digital crowbar.'"

Both briefs are well researched and well argued, with the industry side even turning one of Sullivan's earlier arguments to its own advantage.

We find the 2600 brief to be the more persuasive of the two; but of course the real matter here is what the court will make of them. ®

Related Links

The industry brief
The 2600 brief

Top three mobile application threats

More from The Register

next story
BBC goes offline in MASSIVE COCKUP: Stephen Fry partly muzzled
Auntie tight-lipped as major outage rolls on
iPad? More like iFAD: We reveal why Apple fell into IBM's arms
But never fear fanbois, you're still lapping up iPhones, Macs
Stick a 4K in them: Super high-res TVs are DONE
4,000 pixels is niche now... Don't say we didn't warn you
Philip K Dick 'Nazi alternate reality' story to be made into TV series
Amazon Studios, Ridley Scott firm to produce The Man in the High Castle
Bose says today is F*** With Dre Day: Beats sued in patent battle
Music gear giant seeks some of that sweet, sweet Apple pie
There's NOTHING on TV in Europe – American video DOMINATES
Even France's mega subsidies don't stop US content onslaught
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
Too many IT conferences to cover? MICROSOFT to the RESCUE!
Yet more word of cuts emerges from Redmond
Joe Average isn't worth $10 a year to Mark Zuckerberg
The Social Network deflates the PC resurgence with mobile-only usage prediction
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Securing Web Applications Made Simple and Scalable
Learn how automated security testing can provide a simple and scalable way to protect your web applications.