Free speech advocated are concerned that a pair of court decisions in New York and New Jersey could lay groundwork to deny U.S. citizens the same free speech rights on the Internet that they enjoy in the physical world. Both cases involve issues stemming from the 1998 Digital Millennium Copyright Act (DMCA), a law designed to protect copyright holders by prohibiting the creation of technology that can be used to circumvent copyright protections.
In one ruling, a New Jersey federal court dismissed a lawsuit brought on behalf of Princeton University researcher Edward Felten, who said they were pressured by the RIAA not to publish their research on flaws in technology designed to prevent pirating of digital music. Felten had been part of research commissioned by the RIAA to investigate ways in which consumers might try to circumvent anti-piracy technology and had planned on several occasions to make his findings public. That, said the record companies, was tantamount to facilitating piracy.
Meanwhile in New York, a federal appeals court ruled that the DMCA does not infringe on First Amendment free speech protections of the U.S. Constitution. The court barred Eric Corley, publisher of hacker website 2600 magazine, from posting or linking to sites that post software used to descramble anti-piracy protections in digital video discs. Corley had made public on his website certain details of Decoding Content Scramble System (DeCSS).
But the court said the DeCSS is more of a functional tool than it is content or free speech. That decision highlights the fact that the distinction between what is functional content and what is free speech is a fuzzy one at best.
In a 71-page ruling the three-judge panel upheld a lower court’s ruling against Corley, saying that DeCSS code is only partially protected speech and that such speech can be restricted on the Internet.