|By John Borland, CNET News.com
Final legal briefs were filed today in a New York case that Hollywood studios say could determine the future of the DVD industry.
The case has pitted the studios against legendary hacker 'zine 2600--and publisher Eric Corley--which posted a software program online that allows protected DVDs to be decoded and watched on computers. The movie industry says the program facilitates widespread copying of movies online and sued to block propagation of the software.
Attorneys for 2600 say there's no hard evidence that the software has ever been used to copy software and distribute it illegally, and that the Motion Picture Association of America (MPAA) is treading on freedom of expression rights in its efforts to protect its copyrights.
"At trial, after nearly 10 months of investigation, (the MPAA) could not produce even one instance of such infringement on a CD or DVD or on the Internet," Corley's attorneys wrote today. "Their unimaginative fever-dreams should not convince the court to order the rest of society to stop inquiring, innovating or publishing."
The piece of software at issue is DeCSS; it was ostensibly created by a young Scandinavian programmer as a way to watch DVDs on Linux computers. The software decodes the scheme that is used to protect DVDs from piracy.
But the program quickly got caught in larger debates over Hollywood's ability to control the way its blockbuster movies are distributed and to guard against massive piracy online. The decoding ability allowed would-be pirates to copy and post movies online, and at least one popular piracy tool's instructions actually advise using DeCSS for this purpose, the industry noted.
The MPAA has issued a flurry of cease-and-desist letters to Web sites that have posted versions of the software. It says it's been able to persuade about 60 percent of these sites to pull the contested code offline.
But Corley wouldn't play ball. The publisher kept the program on his site, and when a court issued a preliminary injunction blocking him from posting the software itself, he provided links to sites that hosted the program. That infuriated the studios, which said the publisher was flaunting the spirit of the court's order.
Corley and his attorneys have argued that the MPAA's suit is pointless, as the program is already floating freely around the Internet. Enjoining a single Web site from providing it or posting links would be futile, closing the barn door after the horse has escaped, they say.
In addition, free speech advocates have spotlighted the movie industry's attempt to block such linking as a violation of the First Amendment.
The movie industry, however, contends that the block is necessary.
"A better analogy is not to a barn from which the horses have all been let out, but to defendants' torpedo attack on plaintiffs' ship, which may be leaking but not fatally so," the studios' attorneys wrote today. "Plaintiffs believe that the damage can be patched and properly have asked the court for its help in that reparative work."
The studios noted that Corley should not be able to wriggle out of an injunction against posting the software by providing links instead, saying that such a move would violate the spirit of the court's order.
"There is no doubt that defendants' linking scheme was designed to ensure that they could continue providing DeCSS to the public," the studios' attorneys wrote. "Accordingly, this court can easily conclude that the defendants' linking scheme was designed to avoid the spirit of the court's preliminary injunction, so that they could continue trafficking in DeCSS."
The U.S. district judge is expected to rule on whether Corley should be banned from posting or linking to the software any day.