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DVD copyright appeal hinges on what's fair


(IDG) -- In a David and Goliath case concerning such lofty issues as copyright infringements, fair use doctrines, and First Amendment rights, a hacker magazine squared off against eight powerful Hollywood studios at New York's 2nd U.S. Circuit Court of Appeals to try to overturn a lower court's decision to prohibit the magazine from publishing and using hyperlinks to a DVD descrambling code.

A representative for the hacker publication, 2600:The Hacker Quarterly, said her side was "pleased" with how the appeal was received by the three-judge panel.

"We are pretty happy with the tenor of the questions asked," said Cindy Cohn, legal director for nonprofit civil liberties group Electronic Frontier Foundation (EFF), which is supporting 2600 in its case. INFOCENTER
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Meanwhile, Jack Valenti, president of the Motion Picture Association of America (MPAA), the umbrella group for the studios that lodged the case against 2600, issued a terse press statement saying he remains confident that the appeal will not be overturned, although he believes that the defense made use of "red herrings" to obscure the facts. It was not immediately clear what red herrings Valenti was referring to.

The MPAA won its lawsuit against 2600 last January, claiming that movie copyright privileges were being threatened by the magazine's distribution of the descrambling source code. With the code, theoretically anyone can decrypt a DVD, copy it, compress the information, and send it over the Internet.

The magazine has argued that it did nothing unlawful by publishing the code, which was originally written to allow DVDs to be used on Linux-based systems, given that "fair use" doctrines state that copyrighted material can be used by the public for noncommercial purposes. Furthermore, 2600 claimed that the code was protected under the First Amendment's protection of freedom of speech.

At the heart of the case is the controversial Digital Millennium Copyright Act (DMCA), which is intended to protect digitally recorded materials such as movies and songs. Opponents of DMCA argue that the Act carries too big of a stick and threatens to squash fair use doctrines. DMCA is the same thorn in the side of infamous song-swapper Napster in its battle against record companies' complaints that it is infringing upon artists' copyrights.

According to Cohn, the judges seemed concerned over whether fair use doctrines were being interpreted too restrictively. The judges also asked a series of questions concerned with liability when using hyperlinks to copyrighted and sensitive material, she said, and seemed particularly unhappy with the idea that news organizations could be held responsible for linking to certain materials.

Although representatives for 2600 appeared happy with the flow of arguments in the appeal, which stretched from a programmed 40 minutes to an hour and a half, they emphasized that it was impossible to guess how the judges would rule.

In his statement, MPAA's Valenti said, "the facts of this case remain unchanged since day one," implying that he believes there would be no good reason to overturn the injunction against 2600.

Both sides are due to file supplemental briefs within 10 days, and then await a decision.

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Motion Picture Association of America
Electronic Frontiers Foundation

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