The courtroom was packed; I stood off to the corner because there were no seats available. A lawyer-type, an older gentleman with gray hair, motioned for Corely to go to the hall. After a few moments in the hallway, Corely and his representative returned.

More people began to arrive in the courtroom. There were at least two people wearing the Copyleft T-shirt which includes the css_scramble code on the back. The three judges on the panel were Judge Jon O. Newman and Judge José A. Cabranes, Circuit Judges, and Judge Alvin Thompson, District Judge.

Kathleen Sullivan, noted Constitutional scholar and Dean of Stanford Law School, spoke on behalf of the defendants, 2600. Sullivan began the oral arguments with statements about section 1201a of the DMCA. She mentioned that questions have arisen as to the Constitution and First Amendment.

Kathleen Sullivan:
The DMCA prohibits the dissemination of the device that controls access.

She indicated that the DMCA protects against access, not use.

• 1201 a2 doesn't prohibit DVDs from being copied.
• 1201 a2 is not about copyright infringement, but against access

An example she gave was that of a blueprint for a copy machine. There are innocent uses for that type of information. There are also innocent uses for DeCSS. Sullivan indicated that this statute doesn't prevent piracy; it stops innocent users who paid for a DVD. If someone was colorblind, that person could not alter the screen, a student can not use snippets for a digital report. This Act inhibits Fair Use, which is not infringement.

Judge Newman:
Can we make fair use in the most technological way?

Kathleen Sullivan:
Users are locked into Ancient Analog Fair Use...

Propriety holder ---> Digital
Users ---> Analog

There is a shift of the bargain. There are advantages for the creator. Also, researchers cannot post encryption findings. We have seen this most recently in the SDMI "incident," where a professor did not discuss his findings due to pressures of the RIAA and the fear of the consequences because of the apparent DMCA violation involved.

Kathleen Sullivan:
Code is speech in the form of expressive content.

In previous cases such as Junger v. Daley and Bernstein v. US Department of Justice, code was found to be speech. Those previous cases were not discussed in court this day.

Judge's Response:
Judge Lewis A. Kaplan (who previously made a decision in this case) stated the DeCSS code was more functional than speech. Judge Kaplan stated functionality overrides speech content.

Judge Newman:
Are there alternatives to stop piracy?

Kathleen Sullivan:
That is the burden of the Government Vacate injunction.

Judge Newman:
This will set a precedence. Would it satisfy you if we modify the injunction to make it clear that this is for this case only?

Kathleen Sullivan:
It would satisfy me if you vacate the injunction.

The courtroom erupted with laughter.

Kathleen Sullivan:
We need to narrow liability. Magazines should be able to provide information. There are easier ways to steal movies.

She spoke of DivX and DeCSS; she said a little too much, because earlier she stated there was no record of copies being made with DeCSS! She then excused herself for taking more than her allotted 20 minutes of time and sat down.

The Other Side

Attorney Daniel Alter, assistant U.S. attorney, compared DeCSS to software designed to break navigational systems or fire alarm systems. The judges didn't seem to buy into that.

Charles Sims, a lawyer for the MPAA, stated that the DMCA is Congress' attempt to correct a flawed law. A movie can be copied and sent worldwide if measures aren't taken to prevent this. According to Sims, Congress tried to delay the concern of the providers. We will allow a provision to allow digital providing. DMCA was a carrot so more speech can be available. According to the other side, they are not required to release their product to the public.

My interpretation of that was that they feel they are doing us a favor by releasing their media to us. Perhaps the Motion Picture Association of America thinks they are doing the public a general favor by releasing movies like "Sweet November" or "Ernest Goes to Camp".

With the changing of the tides in the world because of the Internet we have seen many "middlemen" go. You can directly purchase your car insurance online without having to pay a fee to an agent. You can book airline tickets or hotel reservations directly with the use of the Internet. Many middle jobs are gone. Music and entertainment is beginning to take on a new form. In my humble opinion, the MPAA is not doing us any favors by streaming their media at us for a cost, both in dollars and sense.

We have the technology to make music, movies, animation and books. We don't need to rely on their products alone.

Judge Thompson:
Once it's on the Internet, what's the purpose of the injunction? How could the injunction get it off the Internet?

This point is valid and also seems to indicate that civil disobedience does sometimes work.

Judge Thompson:
Can you prosecute the list giver of obscene sites?

Charles Sims:
Yes, and no. It depends on the situation.

Kathleen Sullivan was given a few minutes to speak after three lawyers from the other side had spoken. In her final statements, she gave the example of a crowbar; in the hands of a mechanic, a crowbar has different uses than if it were in the hands of a thief.

Both sides were given until May 10th to submit a statement of ten pages or less to the court.

After the court was dismissed, I spoke with John Gilmore of the EFF about the WIPO treaty in regards to the DMCA. It was my understanding that the DMCA went way further than the WIPO treaty required. In our discussion, John Gilmore stated that the DMCA did go further than was required by the WIPO treaty.

Although there were no demonstrators at the appeal, as there were at the trial, there was a protest demonstrated. Honk for Free Speech was a cause that many 2600 members participated in. People were encouraged to honk their horns if they believe in Free Speech. Honking was heard at the courthouse. In Washington, D.C. a single man protested outside of the Supreme court building. In Philadelphia, PA a techno version the Star Spangled Banner was played for one performance only by Pajama Crisis in honor of this appeal. If we win the appeal a special song "Hope for the Future" will be released. If we lose, there will be no "Hope for the Future". Even if we do not win this appeal, people are unified in patriotism to defend their right to free speech.