Free Speech, Fair Use Both Take Another Blow From US Courts

by , 3:15 PM EDT, May 9th, 2002

A US court has handed yet another defeat to free speech and fair use in the US. ZDNet is reporting that U.S. District Judge Ronald Whyte has ruled that the Digital Millennium Copyright Act (DMCA) does not violate free speech. The ruling came in the process of denying a motion to dismiss charges against the employers of Dmitry Sklyarov, a Russian software company called ElcomSoft. Mr. Sklyarov was arrested last year after Adobe pressed charges against the visiting programmer for making and distributing software that allowed users to break the encryption on Adobe's eBook format. Breaking encryption used in copy protection is expressly forbidden by the DMCA.

In the ruling, Judge Whyte specifically said that the DMCA does not violate the free speech rights of ElcomSoft. From the ZDNet article:

U.S. District Judge Ronald Whyte found that the Digital Millennium Copyright Act (DMCA) does not violate ElcomSoft's due process and free-speech rights. The decision clears the way for a trial in the closely watched case--believed to be the first criminal prosecution under the contentious law.

Attorneys for the software maker had argued that the law is overly vague and undercuts copying that is legally protected under "fair use" doctrines, among other things.

Joining other courts upholding the law, Whyte rejected those arguments in a 35-page decision.

"Congress was concerned with promoting electronic commerce while protecting the rights of copyright owners, particularly in the digital age where near exact copies of protected works can be made at virtually no cost and distributed instantaneously on a worldwide basis," he wrote.

Despite legal challenges, the courts have so far given the law a largely sympathetic hearing. Wednesday's decision follows a similar decision from a federal appeals court last year barring Web publisher Eric Corley from including hyperlinks on his site to a software program known as DeCSS that can be used to crack DVD encryption.

"The problem is we live in a world where copyright holders are increasingly turning to encryption and other locks that prevent people from copying at all," said Robin Gross, an attorney for the Electronic Frontier Foundation, a group that has filed a court brief on behalf of ElcomSoft.

The ruling "doesn't square with a digital world in which copyright holders preclude people from engaging in behavior that fair use is intended to provide for," Gross said.

There is additional information in the full article, and we recommend it as a good read.

The Mac Observer Spin:

It is incredible that the DMCA has stood up to challenges based on free speech and fair use issues. One judge says that linking to software is not speech, and as such is not entitled to protection, and another judge dismisses any and all free speech and fair use issues one fell swoop. We stand dangerously poised on slippery turf. While there are still many more appeals that can and will be made on the constitutionality of the DMCA, the defeats handed to the side of reason so far are frightening.