Lawyers representing 2600.com, which got into hot water for making a DVD descrambler called DeCSS available on line, have filed a brief with the appellate court rebutting claims made by the Motion Picture Association of America (MPAA) and others including the US Government.
As we'd been hoping, the 2600 side is going for the publishing-as-public-interest angle, and doing a fine job of it to boot.
This may be the most important challenge to the Digital Millennium Copyright Act (DMCA) yet mounted, because 2600 didn't make whole, copyrighted works available, but rather made a utility program available which, while outlawed by the DMCA on grounds that it enables evildoers to circumvent a technical access control to copyrighted work, is also an item of journalistic interest.
The brief cites the 1989 decision in Florida Star v. B.J.F., stating that "[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."
On the basis of that, 2600 argues that it is a news outfit (perhaps its weakest claim here), that what it published is of public significance (no argument from us), and that, surely, there can be no 'state interest of the highest order' in keeping it secret (self evident).
We imagine it's not crucial for 2600 to establish itself as a news organization in the conventional sense. It is unquestionably a publisher, and it did make truthful information about a matter of public significance available while simultaneously defying the DMCA.
For the appeals court to go against them here, it will have to find that 2600 doesn't qualify as a legitimate publisher, or that the DMCA actually forbids all publishers, even more conventional ones, from making information about digital access controls public.
Thus 2600 is betting that the court will shy away from any such broad interpretation of the DMCA and consequent implication of corporate restraints on what the press may and may not make known to the public.
According to the brief, this conflict between public debate and corporate self-interest requires the court to exercise strict scrutiny of industry objections in light of First Amendment protections.
"The Studios insist that strict scrutiny does not apply because [DMCA] is applied to 2600 Magazine's 'conduct,' not its speech....Most obviously, the Studios' characterization of this as conduct is simply wrong. 2600 Magazine was enjoined from publishing information. The act of publication was the only 'conduct' banned," the brief notes.
The distinction between publication and conduct is crucial. With few exceptions, an expressive act is generally regarded as speech, and therefore protected under the First Amendment.
2600 is working other angles, such as an assertion that computer programs are speech; that the lower court's ruling obstructs communication in absence of any proven harm to the industry; and that even if DeCSS were solely a cracking tool, in the real world such analogous items as burglar's tools require some evidence of intent to be found illegal.
The brief, by lawyer Martin Garbus on behalf of 2600, is reasoned and clearly argued, and well worth a read through. ®