WASHINGTON -- Music industry lawyers plan to tell a federal appeals court that a DVD-descrambling program is primarily useful to hackers and should be outlawed.
On Tuesday, the Second Circuit Court of Appeals will hear oral arguments in this high-profile lawsuit, which has pitted Hollywood against open-source proponents and represents the first legal challenge to the Digital Millennium Copyright Act.
2600 Magazine, the hacker-zine that posted the DeCSS utility on its site and was sued by the motion picture industry, is appealing its loss during a trial that took place last year. U.S. District Judge Lewis Kaplan ruled last year that distributing the Windows utility violates the DMCA.
Chuck Sims, the Proskauer Rose attorney who will argue on behalf of the movie studios, is blunt about the approach he'll take: "This is an enforcement action against hackers."
"I think the Napster experience and watching the book-publishing experience ... stresses the importance of the DMCA protecting a broad mix of creative works that Congress hoped would be made available to the public," Sims says.
The Justice Department, which intervened in this case on behalf of Hollywood, will also argue before the three-judge panel to defend the constitutionality of the DMCA.
Arguing on behalf of the defense is Kathleen Sullivan, the dean of Stanford University's law school. The Electronic Frontier Foundation in San Francisco is providing 2600 with legal aid.
"That's disingenuous," says Lee Tien, EFF staff counsel, about the hacker quip.
"I think that this is certainly a more important case than his comments would indicate," Tien says. "At the very least, we're talking about journalistic or press publication of newsworthy information.
"Add to it what we've been seeing in the last week or two with regard to Professor Felten and the use of DMCA as a blunt instrument to club scientists and researchers into not publishing."
Tien is talking about a warning letter that the Secure Digital Music Initiative sent in April to Ed Felten, a computer science professor at Princeton University. The lawyergram warned Felten that the DMCA might prohibit disclosure of his research, and he backed down from presenting it last week.
Sims, an attorney for the plaintiffs, dismisses complaints about the law. "The knee-jerk academic criticism of the DMCA was extraordinary before it was enacted," Sims says. "If anything, I think cooler heads have prevailed. The number of academics who have been on this hobby horse has been shrinking, not growing."
The trial judge, Kaplan, seemed convinced. He told a conference last fall that hackers were "what might be called cyber-freedom fighters, or perhaps cyber-anarchists."
"I do not think the case presents a close question. Judge Kaplan certainly didn't think so," Sims says. "It ought to be a rather simple exercise. I would expect Dean Sullivan to have a harder time than I will."
The appeals panel includes Jon Newman -- regarded as a copyright expert, Jose Cabranes and Alvin Thompson.
The hearing is the last of six arguments scheduled before the appeals court on Tuesday. The arguments begin at 10 a.m. EDT in Room 506 at 40 Centre Street at Foley Square.
