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DeCSS case could topple DCMA

Landmark case key to the future of intellectual property law. 6/4 ReleVents hed: DeCSS case could topple DCMA dek: Landmark case key to the future of intellectual property law. by James Mathewson

In one of our longest and most confusing news stories since I’ve been editorial director of the site, the author takes up arguments in a landmark intellectual property case. I won’t even pretend to provide a comprehensive analysis of these arguments. My only hope is to digest a central chunk of the story for all those non-lawyers out there.

The case in question is the Motion Picture Association of America (MPAA) v. 2600 Magazine. In the case, the MPAA sued the magazine for linking to a site that posted the encryption key for DVD movies–known as DeCSS–claiming that the magazine’s Web site violated the Digital Millennium Copyright Act (DMCA). The MPAA won its case against the magazine, and the judge that ruled on the case–District Court Judge Lewis Kaplan–made such precedent-setting remarks in his ruling that the case was quickly appealed. The federal appeals court is expected to rule on the case today.

So much for a recap. Preliminary indications are that Kaplan’s ruling will be overturned, at least if I’m correctly reading the list of 11 questions the judges posed to lawyers for both sides. The questions have to do with the central issue of the case. Is the DCMA unconstitutional on the grounds that it violates the First Amendment? Lawyers for the Electronic Freedom Foundation, which is acting as an advocate for the magazine, claim that it is, especially Judge Kaplan’s interpretation of it. The court seems to agree, but is weighing several precedents that balance First Amendment rights with violations of law to see which way it should rule. The central issue in this fight is whether the DCMA restricts the content of publications–and therefore violates the First Amendment–or merely restricts functional violations of copyright law. Judge Kaplan thought the latter. The court seems to be leaning toward the former.

Let’s hope so. Because Kaplan’s ruling has vast consequences in the Web publishing world. If our site links to a site that describes how denial of service attacks work, does that make us a party to a denial of service attack? No. But Kaplan’s ruling suggests that it would. The implications on free speech are enormous. Kaplan’s ruling must be overturned, not only because of the details of this case, but in how this case will be used in future litigation. Publishers can’t be afraid to publish details of illegal behavior for fear that they will be accused of being a party of similar behavior. That’s pretty basic First Amendment theory. And it seems to apply in this case.

JamesMathewson is editorial director of ComputerUser magazine and

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