WASHINGTON – The Bush administration is siding with Hollywood in a federal lawsuit against a DVD-descrambling utility.
In a 100 KB brief filed this week before a federal appeals court, the Justice Department asked to intervene in the case brought under the Digital Millennium Copyright Act, saying "this lawsuit is really about computer hackers and the tools of digital piracy."
The Second Circuit Court of Appeals should uphold a lower court's decision banning the hacker-zine 2600 Magazine from distributing or linking to the DeCSS utility in a case brought by eight movie studios in January 2000, the DOJ argues. 2600 has appealed the ruling.
"Under the First Amendment, defendants had every right to use their website to advocate against the DMCA. They also had the right to associate on the Internet with others who support the use of circumvention technology by linking to websites that decry," says the brief, signed by U.S. Attorney Mary Jo White. "But by purposefully linking to websites that post DeCSS for downloading, defendants' actions exceeded advocacy and crossed the line into unlawful action."
On Wednesday, the appeals court granted the DOJ's request to intervene in the lawsuit, which means government lawyers will be allowed to defend the constitutionality of the Digital Millennium Copyright Act (DMCA) in court. 2600 has claimed that it did not violate the DMCA and the law violates the First Amendment because it limits programmers' free speech rights.
This isn't the first time that the DOJ has sided with the entertainment industry in court. Last September, the Clinton administration filed an amicus brief in the Napster case saying the file-trading service can't use the Audio Home Recording Act of 1992 as a legal shield.
It isn't necessarily true that Attorney General John Ashcroft believes that DeCSS should be verboten. Instead, the DOJ is acting in its traditional role of attorney for Congress in defending the constitutionality of a federal law in court.
In its brief, however, the DOJ sides with Hollywood's extreme view of the open-source community, likening the publishers of the popular hacker-zine – who did not write DeCSS, but were one of hundreds of people distributing it – to lawless miscreants bent on wrecking havoc on an important American industry. The plaintiffs in the case warn that unless DeCSS – and similar programs – are prohibited, digital piracy will cost them millions of dollars in revenue a year.
Warns the DOJ: "Defendants publish a magazine for computer hackers, which 'has included articles on such topics as how to steal an Internet domain name, access to other people's e-mail, intercept cellular phone calls, and break into computer systems at Costco stores and Federal Express.'"
It goes even further, saying that software is not speech-protected by the First Amendment but can be regulated like parts to a machine: "This function is entirely nonexpressive, and thus does not warrant First Amendment protection."
Government attorneys have used that style of argument when defending the constitutionality of encryption regulations that – under a presidential executive order – make freely distributing some software a federal felony. In defending lawsuits brought to challenge the rules, the DOJ has argued that code is not speech and can be regulated in much the same way that physical products can.
2600 and its allies including the Electronic Frontier Foundation attempted to challenge that notion during the DeCSS trial before U.S. District Judge Lewis Kaplan. David Touretzky, a scientist in the computer science department at Carnegie Mellon University, testified about the expressive nature of code.
An essay that Touretzky wrote says: "Any attempt to draw legal distinctions between 'source' code and 'object' code, or between code that is executable and code that is not, will immediately encounter difficulties, because these dichotomies are only a convenient fiction."
Kaplan ruled last August that the DeCSS utility was like a "common-source outbreak epidemic" that violated the law's prohibition against circumventing copyright-protection technology. The DMCA prohibits anyone from publishing or publicly distributing any hardware or software that "is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner."
In January, a slew of groups siding with 2600 filed amicus briefs in the case. Wired News signed one brief that said news organizations should have the right to link freely without worrying about running afoul of copyright law.
