A federal appeals court in Manhattan heard oral arguments yesterday in a case that questions the constitutionality of the Digital Millennium Copyright Act.
The DMCA was passed by Congress in 1998 when a number of entertainment companies and trade organizations pressured lawmakers to make unauthorized electronic distribution of digital copyrighted materials illegal. The DMCA legislation has given rise to a move by the RIAA to require radio stations streaming on the Internet to pay both performance and publishing royalty fees. If it is upheld in the online world, it’s also possible that the practice will be extended to on-air broadcasts, costing millions for radio stations.
At issue in the case now before the court is a suit that arose in January 2000 when eight major movie studios sued hacker journalist Eric Corley, after he posted a software program called DeCSS on his Web site. Corley, aka Emmanuel Goldstein, created the software that can unscramble any movie from a DVD, copy it to a hard drive, and-after compressing it-distribute it throughout the globe via the Internet.
In August U.S. District Judge Lewis Kaplan ruled in favor of the studios, requiring Goldstein to discontinue posting DeCSS on his site or linking to other sites that do.
The legal challenge, which will be argued by Kathleen Sullivan, one of the nation’s leading free-speech scholars and dean of Stanford Law School, has been underwritten by the nonprofit Electronic Frontier Foundation of San Francisco. Corley’s argument is that the law violates the First Amendment by diminishing the public’s right to make certain “fair uses” of copyrighted works. Corley’s lawyers and their allies claim that these fair use rights rise to the level of First Amendment rights, and that the DMCA, by allowing copyright holders to curb those rights, must therefore be unconstitutional. Therefore, they say, the DMCA radically upsets the delicate balance that the copyright law was designed to achieve between the rights holders ability to exploit their works and the public’s right to use, share and enjoy those works.