The case is being fought between Hollywood studios and the publisher of 2600 Magazine, a hacker magazine which posted the code on its web site 2600.com in a story about the software’s author and linked to other sites that offered the code. The lawyer for 2600, Kathleen Sullivan, argued that the Digital Millennium Copyright Act, which effectively outlaws DeCSS, is unconstitutional or at least does not apply to 2600. Sullivan described the law as a “digital straightjacket” which stops DVD owners making fair use of their purchase.
One of the judges, who expressed his concerns about DVD piracy, observed that fair use could still be made if analogue copies of DVDs were made – with a video recorder. He asked Sullivan, “Have we ever said you not only get to make fair use, but you get to make it in the most technologically modern way?”
The panel also considered whether or not DeCSS is protected under the right to freedom of expression. A judge asked, “What is the expressive content?” to which Sullivan answered that DeCSS is expressive because of “the beauty of the program” and its scientific and educational value.
A judge also observed that a permanent injunction issued last August by a lower court in this case, the subject of this appeal, only barred 2600 from linking to and posting DeCSS – it did not apply to other news media or web sites. Sullivan argued that, because DeCSS is available on thousands of non-US sites that are not covered by DeCSS, the injunction serves no useful purpose.
Parties to the case have to submit final written arguments by 10th May after which the judges are expected to give their ruling.