NEW YORK -- A trio of federal judges lobbed sharp questions on Tuesday at a law school dean who argued it should be legal to distribute a DVD-descrambling utility.
The judges, from the Second Circuit Court of Appeals, spent an hour quizzing attorneys for both sides in Universal Studios v. Remeirdes et al, a high-profile case that has pitted Hollywood against the open-source community.
The panel of three judges appeared to be more sympathetic to the legal arguments raised by the entertainment industry.
Judge Jon Newman predicted the widespread availabity of the DeCSS descrambling utility would boost piracy of DVDs. "Not a remote theoretical possibility, but a highly likely virtual certainty," Newman said.
Kathleen Sullivan, the dean of Stanford Law School, said the panel should rule the Digital Millennium Copyright Act -- which a district judge said outlawed DeCSS -- was unconstitutional, or at least did not apply to her client, hacker-zine 2600 Magazine. Last year, a coalition of movie studios sued 2600 for distributing a copy of DeCSS.
Sullivan compared the controversial DMCA to a "kind of digital straightjacket" that restricts even people who purchase DVDs from copying them or using them in other ways, such as using digital excerpts in presentations, that courts have deemed permissible under U.S. law.
"It's as if the laws, as applied, say you can't print a blueprint of a copying machine," Sullivan said.
She said that because of the "straightjacket," DVD owners can't make fair use of their purchase -- which shows that the DMCA goes further than other copyright laws have.
That didn't seem to persuade the judges, who appeared unwilling to spend much time considering whether the DMCA was unconstitutional.
Newman said that fair use still was possible if a lower-quality analog copy was made, instead of a high-quality digital copy. "Have we ever said you not only get to make fair use, but you get to make fair use in the most technologically modern way?" Newman said. "You haven't told me one fair use that's been eliminated."
He suggested that The New York Times didn't "need the digital format to write their reviews."
Another member of the panel wondered if software such as DeCSS was protected by the First Amendment's guarantee of freedom of expression. "What is the expressive content?" asked Jose Cabranes.
Sullivan responded that DeCSS was expressive because of "the beauty of the program" and its scientific and educational value.
Another federal appeals court has ruled that source code -- which is easier for humans to read and often includes English-language comments -- is covered by the First Amendment. But that ruling did not apply to compiled code, such as DeCSS.
2600 is appealing its loss during a trial that took place last summer. U.S. District Judge Lewis Kaplan ruled last year that distributing the Windows utility violates the DMCA.
Kaplan's injunction barring the hacker-zine from posting DeCSS also restricted hyperlinks to copies of the utility, something that Sullivan argued went too far. The judges seemed convinced that mainstream news organizations should be able to link to DeCSS, and pointed out that Kaplan's order only applied to 2600 and anyone acting "in concert" with it.
At one point, Judge Alvin Thompson asked: "Would it satisfy you if this court were to modify the injunction?"
Chuck Sims, the Proskauer Rose attorney who argued on behalf of the movie studios, said that Sullivan's "fair use" metaphor was wrong-headed.
"There are many paintings that have passed out of copyright," Sims said. "But that doesn't give me the right to go into someone's living room to see it."
Sims said that "I did not hear a serious argument that the (DMCA) statute is subject to strict scrutiny."
He was referring to how deferential courts are to acts of Congress when weighing how censorial they are. Laws regulating political speech receive strict scrutiny, but the movie studios say that the DMCA should receive more deference from the courts.
Also arguing in defense of the law was the Justice Department, which intervened in this case on behalf of Hollywood.
The panel gave both sides until May 10 to file 10-page supplemental briefs. A ruling could come at any time thereafter.
