Brinks May Violate First Amendment?

[Jim Rojas <jrojas@xxxxxxxxxxxx>]

http://www.freedomforum.org/templates/document.asp?documentID=12752

To link or not to link

Phillip Taylor
Special to The Freedom Forum Online

06.22.00

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When hackers discovered a way to reconfigure DVD players to allow Linux
users to play the movies on their computers, Eric Corley provided easy
access to the code.

He posted it at 2600: The Hacker Quarterly, an online magazine he
operates under the name Emmanuel Goldstein. But the movie industry was
successful in its bid to have a federal judge in Manhattan last January
stop 2600 and several other Web sites from distributing the code online.
Corley responded by posting links to hundreds of sites carrying pieces
of the code.

And now Corley is before the court again. In April, eight movie studios
asked U.S. District Judge Lewis Kaplan in New York to bar Corley from
posting such links. Kaplan is expected to rule on an injunction soon. A
trial is scheduled for July 17.

The code-breaking software itself, called DeCSS, has generated quite a
stir in the movie industry because it allows users of Linux and other
non-Windows operating systems to play the movies on their computers.

Officials in the movie and recording industries say such software
directly violates several provisions of the Digital Millennium Copyright
Act. Passed in 1998, that act makes it illegal for anyone to provide to
the public a device designed to circumvent safety measures limiting
access to copyrighted work. The act also forbids anyone to direct
traffic to circumvention technologies.

But First Amendment advocates say a successful effort to remove the
links would constitute a "gross prior restraint of speech."

"As part of its role as an organ of the media, 2600 took the same
actions as other media outlets such as the San Jose Mercury News,
CNN.com, Wired and ZDNet, which all at one time also linked directly to
DeCSS," wrote Martin Garbus, a noted First Amendment attorney who is
representing Corley.

Lawyers for the movie studios say they don't have a problem with the
linking ? they have a problem with the people who provide the link with
the sole purpose of illegally playing the movies.

The courts have dealt with posting and linking before. A federal judge
in Utah last year barred a couple from posting chapters of the Church of
Jesus Christ of Latter-day Saints' "Church Handbook of Instructions" on
their Web site. The judge also ordered them to remove links to the
copyrighted text.

In another lawsuit, the recording industry asked a federal court judge
to shut down Napster, a popular online song-sharing service, for
assisting users in copying copyrighted musical works for free.

But existing legal principles can or have resolved those issues, says
Mark Sableman, a St. Louis-based attorney who specializes in Internet
law. He says the DVD case thrusts the concept of the Internet ? more
specifically, the very nature of linking ? into a whole new realm.

"I think it all comes down to two things: the view of the Internet and
the view of the link," Sableman said. "Is the Internet truly an open
network that needs a kind of legal fence to be erected where there
currently are no fences? Is a link pure speech, a reference footnote
that happens to be active, or is it speech plus action?"

Sableman says the courts have determined that action can be separated
from speech and thus be regulated. He recalls a case where a hunter
under charges of poaching unsuccessfully cited the First Amendment as
protection after he yelled at his dog to attack a game marshal.

But Sableman questioned whether a court could separate the activation of
the link from the speech.

He said that if Corley's case went forward, online critics who post
links to sites supporting their arguments could face punishment.
Operators of sites as seemingly innocuous as search engines could also
be penalized, he said.

"Is it any different from what happens if you do a search for the
encryption utility on Yahoo! or AltaVista or Google?" Sableman asked.
"They all give you electronic lists (of links) to those sites."

Studio lawyers respond in court documents, saying "there is nothing
illegal about linking as such." But they say Corley's actions, as
opposed to those of news organizations and search engines, are meant to
actively encourage other users to download DeCSS to break DVD encryption
codes. They also say that Corley's links demonstrate a concerted effort
to direct traffic to DeCSS software.

The Electronic Frontier Foundation disagrees, saying the ban on links
and on the posting of the software infringes on the public's right to
free discourse. The DeCSS allows a legitimate use of purchased
copyrighted works, says EFF attorney Robin Gross.

"EFF opposes technical restrictions that limit consumers' legal rights,"
Gross said. "The anti-circumvention provisions that protect these
restrictions are unconstitutional, because they violate the public's
right to publish and receive software."

Dan Burk, a professor at the University of Minnesota's law school, said
Kaplan would likely ban the links until trial. He said that because
Corley had already faced legal action concerning the posting of the
code, the court is essentially empowered to impose pre-trial
restrictions on the links.

But Burk said Kaplan first failed to address the First Amendment issues
in January. He noted that the 6th U.S. Circuit Court of Appeals
determined in Junger v. Daley last April that encryption is a form of
speech. Although that decision isn't binding in New York, Burk faulted
Kaplan for not even attempting to reconcile the DeCSS source code as a
form of speech that should be protected.

As for the posting of links, Burk said that would be much more difficult
to ban "because the First Amendment would be in full play because of the
ability to tell someone where to go for information.

Phillip Taylor, a reporter for the Daily Press in Newport News, Va., is
a free-lance correspondent for the First Amendment Center.