Supplementary briefs have been submitted by both contestants in the appeal of 2600 publisher Eric Corely aka Emmanuel Goldstein, who was barred from posting or linking to the DeCSS descrambling utility last summer by US District Judge Lewis Kaplan.
After hearing oral arguments for and against publishing DeCSS, which defeats the CSS (Content Scrambling System) of DVDs back on 1 May, the Second Circuit US Court of Appeals in Manhattan requested supplementary written briefs addressing the issue of whether Corley's First Amendment rights as a publisher had been violated by the district court.
On the 2600 side, lawyer Kathleen Sullivan argues, among other things, that outlawing links to DeCSS inhibits the free exchange of technical information.
"A link is simply a reference, indicating that certain information is available in a particular place. A link should be enjoined when, and only when, the court would also enjoin a similar reference by a print publication," she reasons.
As for the industry's claim that making DeCSS available inspires criminal activity and must therefore be enjoined, the brief cites the US Supreme Court, which found that "it would be quite remarkable to hold that speech by a law abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party."
"Instead, speaker liability is not allowed 'unless that speech is capable of producing imminent lawless action,'" the brief notes.
On the other hand, industry lawyer Charles Sims claims that DeCSS is not speech, or even information, and therefore is not entitled to First Amendment consideration.
"DeCSS is a device (configured as a program, although it could as easily have been configured as a physical machine....) that accomplishes a mechanical task, namely descrambling and decrypting an encrypted, scrambled DVD and copying its content to a hard drive. It is no more 'speech' than a key to a library or museum," he reasons.
"DeCSS is not information within the meaning of the First Amendment, much less a message; it is, in the government's apt phrase, a 'digital crowbar.'"
Both briefs are well researched and well argued, with the industry side even turning one of Sullivan's earlier arguments to its own advantage.
We find the 2600 brief to be the more persuasive of the two; but of course the real matter here is what the court will make of them. ®