For those following the debate over "free speech" vs. intellectual property rights on the Internet, Wednesday, November 28, 2001, was a day to remember. What occurred was a confluence of legal decisions from federal courts in New York and New Jersey that dealt a severe blow to those seeking to overturn key provisions of the much-maligned Digital Millennium Copyright Act (DMCA).

Passed by Congress in 1998, the DMCA prohibits the development, dissemination or "trafficking" of software or information that can be used to gain unlawful access to copyrighted materials. Opponents of the law argue that it is overbroad and infringes on the free speech rights of those wishing to publish code-breaking information.

Led by the Electronic Frontier Foundation (EFF), several First Amendment challenges have been launched against the law, most notably in the case of Princeton University professor Edward Felten, who sought the right to publish research on the security vulnerabilities of digital watermark technology under development to protect copyrighted music. In two other cases, EFF is arguing the right of website operators and individuals to publish computer code that can be used to circumvent DVD piracy protections.

For EFF, November 28^th was not a good day.

First to New Jersey, where a Federal District Court in Trenton granted the request of the Justice Department and the Recording Industry Association of America (RIAA) to throw out a lawsuit by Mr. Felten and EFF against the music industry. The professor and EFF argued that legal threats from the industry stopped him from publishing his research on the weaknesses of digital watermark technology. According to Felten, attorneys for RIAA had sent him a letter threatening legal action if he and his team of researchers published their paper. EFF had also asked the court to overturn several provisions of the DMCA.

According to the Justice Department, "Whatever concerns [Felten and his researchers] actually harbor, it appears that they have not forgone a single publication of any material as a result of those concerns, and they do not allege that they will actually forgo any conduct in the future…In short, plaintiffs’ speech has not been chilled." The judge’s ruling is not yet available, but apparently he agreed.

EFF and Felten plan to appeal the decision to the 3rd Circuit Court of Appeals.

On to New York, where again on November 28^th, a panel of the 2nd Circuit Court of Appeals unanimously upheld a District Court’s decision banning the online publishing or linking to a DVD-cracking program known as DeCSS.

The case, Universal v. Reimerdes, stems from the publication of DeCSS code on the website of 2600, the "Hacker Quarterly" magazine. The controversial code was first published on the Internet in 1999 by a Norwegian teenager, allegedly to permit users of Linux operating systems to play DVD (digital versatile disc) movies on their computers. DeCSS soon became a valuable tool for Internet pirates who illegally copy DVD movies and distribute them online. The major motion picture studios sued 2600, arguing that the posting of the code was unlawful under the DMCA.

While the court found that computer code may be considered speech, and therefore is entitled to some First Amendment protections, it ruled that the DVD decryption code in this case is "content-neutral," and thus is not entitled to the same protection as more "expressive" content such as literature or music. Courts have long held that Congress is entitled to restrict speech if it is viewpoint-neutral and if it advances a substantial government interest. Also, according to the court, the target of the DMCA in this case was the functionality of DeCSS and not whatever speech component it may hold.

The court also didn’t buy EFF’s argument that copyright protection technology denies users their "fair use" right to the material it is protecting. In denying that challenge, the court offered the analogy of a film critic who can adequately quote selected lines of dialog from a movie without bringing a Camcorder into the theater.

A decision has yet to be made whether to take the case to the U.S. Supreme Court.

Lest one think it’s all bad news for EFF and other Internet "speech" advocates,

in a related case working its way through the California court system, a three-judge panel of the 6^th District Court of Appeals in San Jose on November 1, lifted an injunction forbidding the online posting of DeCSS.

The case arose from a lawsuit filed against website operators and individuals who published DeCSS by the DVD Copy Control Association, a movie industry group which controls the rights to the copyright protections DeCSS is designed to crack.

According to the DVD Copy Control Association, the distribution of DeCSS violated California laws aimed at protecting trade secrets. Superior Court Judge William Elfving agreed, granting plaintiffs a sweeping injunction forbidding the online posting of the code. In overturning that decision, the appeals court argued that Elfving’s ruling constituted "prior restraint" on free speech. (For more on this case, read Copyright Holders Get Burned by DVD Ruling).

We believe the California appeals court’s decision is an aberration. On November 30, 2001, the DVD Copy Control Association filed a petition for review with the California Supreme Court. Meanwhile, the federal ban on publishing DeCSS remains in effect.

Our position on this issue remains unchanged: defending foundational boundaries is difficult enough without the added burden of those who argue free speech to get free ride.