Online/offline hacker publication 2600 Magazine has decided not to seek U.S. Supreme Court review of the so-called DeCSS case, which it hoped to use in challenging the 1998 Digital Millennium Copyright Act.
The decision puts to bed a two-and-a-half year legal battle over the DMCA that 2600 and online civil liberties outfit Electronic Frontier Foundation had waged over providing links to software that helps DVD users make multiple copies of copyrighted material on DVDs.
In a statement posted on the http://www.2600.com site today, the publication said after numerous consultations with its legal team, they concluded their chances of getting the case before the Supreme Court were very slim.
Eight Hollywood studios had sued and won an injunction against Eric Corley, also known as Emmanuel Goldstein, the publisher of the popular online hacker journal which lists Middle Island, NY as an address. The injunction barred him from posting on his Web site a DeCSS program built by Norwegian teenager Jon Johansen that lets people play DVDs on computers running on the Linux operating system.
But the DeCSS program also purported to crack the CSS (Content Scramble System) scheme the movie industry uses to wrap DVD-format movies and protect them from being copied.
In appealing the injunction against linking to the program, Corley argued that the DMCA oversteps limits on the duration of copyright protection and also violated his First Amendment rights because computer code is considered a form of speech.
The US 2nd Circuit Court of Appeals in New York tossed the case. In part, the court cited a DMCA provision that prohibits the manufacture and distribution of a technology that is produced solely to circumvent copyrighted works.
The EFF and 2600 had vowed to appeal the loss to the Supreme Court. But today’s decision appeared to concede that their case wasn’t strong enough for a high court review, namely because Corley felt his association with hacking would already bias any court review of the scope of “fair use” which allows some copying of copyrighted works.
In a statement about the decision today, 2600 publisher Emmanuel Goldstein called the case “a wake-up call to the Internet community. We have a stronger, more united community now, and we will support future cases.”
Instead of viewing the decision as a defeat, 2600 spun the other way, saying the upside of the battle is that people the world over know all about the DMCA and are committed to overturning it.
“The war has not ended. Only the frontlines have changed. We are convinced that when all is said and done, this will be seen as the best strategy,” Goldstein said.
San Francisco-based EFF, which had supported the case, said it would continue looking for stronger test cases that might result in a high court review of the DMCA, which online advocates say unduly restricts the “fair use” of digital-formatted materials by limiting one’s ability to make copies of them.
“EFF and 2600 Magazine will strive to ensure that the public need not sacrifice its side of the copyright bargain to Hollywood’s fears of piracy,” said EFF Intellectual Property Attorney Robin Gross.
In a related development regarding the DeCSS program, the EFF noted that a California Court of Appeals ruled that a preliminary injunction against Andrew Bunner, a DeCSS republisher in California, had violated his first amendment rights.