Hacker's appeal hinges on what's fair

A representative for the hacker publication, 2600:The Hacker Quarterly, said her side was "pleased" with how the appeal was received by the three-judge panel.

"We are pretty happy with the tenor of the questions asked," said Cindy Cohn, legal director for nonprofit civil liberties group Electronic Frontier Foundation (EFF), which is supporting 2600 in its case.

Meanwhile, Jack Valenti, president of the Motion Picture Association of America Inc. (MPAA), the umbrella group for the studios that lodged the case against 2600, issued a terse press statement saying he remains confident that the appeal will not be overturned, although he believes that the defence made use of "red herrings" to obscure the facts. It wasn't immediately clear what red herrings Valenti was referring to.

The MPAA won its lawsuit against 2600 last January, claiming that movie copyright privileges were being threatened by the magazine's distribution of the descrambling source code. With the code, theoretically anyone can decrypt a DVD, copy it, compress the information and send it out over the Internet.

The magazine has argued that it did nothing unlawful by publishing the code, which was originally written to allow DVDs to be used on Linux-based systems, given that "fair use" doctrines state that copyrighted material can be used by the public for noncommercial purposes. Furthermore, 2600 claimed that the code was protected under the First Amendment's protection of freedom of speech.

At the heart of the case is the controversial Digital Millennium Copyright Act (DMCA) which is intended to protect digitally-recorded materials such as movies and songs. Opponents of DMCA argue that the Act carries too big of a stick, and threatens to squash fair use doctrines. DMCA is the same thorn in the side of infamous song-swapper Napster Inc. in its battle against record companies' complaints that it is infringing upon artists' copyrights.

According to Cohn, the judges seemed concerned over whether fair use doctrines were being interpreted too restrictively.

The judges also asked a series of questions concerned with liability when hyperlinking to copyrighted and sensitive material, she said,and seemed particularly unhappy with the idea that news organisations could be held responsible for linking to certain materials.

While representatives for 2600 appeared happy with the flow of arguments in the appeal, which stretched from a programmed 40 minutes to an hour and a half, they emphasised that it was impossible to guess how the judges would rule.

In his statement, the MPAA's Valenti said "the facts of this case remain unchanged since day one," implying that he believes there would be no good reason to overturn the injunction against 2600.

Both sides are due to file supplemental briefs within 10 days, and then await a decision.

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