Hacker Publication Gets Top Defense Attorney




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Event Summary

The infamous hacker publication known as 2600, is being sued in Federal Court by eight major motion picture corporations. Defended by renowned attorney Marcus Garbus, 2600, and its assumed editor "Emmanuel Goldstein," 2600 is being charged with "circumvention of copyright protection systems" - for publishing how to circumvent the Contents Scramble Systems (CSS). CSS protects Digital Video Discs (DVDs) from unauthorized access and copying. 2600 posted a program that can decrypt CSS called DeCSS on www.krackdown.com. DeCSS has since been removed from www.krackdown.com.

Market Impact

With its legal bills being paid for by the Electronic Frontier Foundation, an ACLU-ish type of Internet non-profit organization dedicated to free speech, 2600 is going to need a strong defense team to take on these industry heavyweights. This case will challenge the bowels of free speech and censorship and inevitably set a lot of legal precedents moving forward.

17 U.S.C. 1201(a)(2) states specifically that, "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access." There are numerous pieces of software out on the Internet that violate this code, however, 2600 is the first to be challenged in court.

Attorney Garbus is a founding partner of Frankfut, Garbus, Klein, and Seltz, a Madison Avenue (NYC) based law firm that was founded in 1977. A trial lawyer who is known for his expertise in selecting juries, Mr. Garbus has as a part of his intellectual property practice represented the publishers of Salmon Rushdie and Henry Miller, as well as major motion picture stars Spike Lee, Robert Redford, Richard Gere, and Al Pacino. Mr. Garbus has taught law at Columbia and Yale Universities, and has authored the following three books:

  • Ready for the Defense (Out of print.)

  • Traitors and Heroes (1989)

  • Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way, August 1998

He is a frequent contributor to the Washington Post, the LA Times, and the New York Times.

Considerations

It is not surprising that 2600 did not seek out San Francisco based defense attorney Jennifer Granick. Granick defended Kevin Mitnick, who went on to spend 5 years in jail after stealing source code from numerous Internet high-profile companies. It is obvious there is more at stake here than just intellectual property protection.

The court date has been set for December 5th of this year. Having appeared before the United States Supreme Court, and multiple other high-level state and federal courts, Mr. Garbus will undoubtedly be using the next nine months to prepare a competitive defense.

What will be particularly interesting to watch for is the outcome of whether or not the writing of the decryption program, known as DeCSS, is deemed a violation of existing Copyright Protection Laws, or whether the pubishing of DeCSS is a violation of Copyright Law. If the writing of DeCSS is deemed a violation of Copyright Protection Laws, this has a lot of implication on other software decryption programs that exist. Computer games in particular suffer from an exorbitant amount of publications on how to circumvent the licensing programs. In part to escape lawsuits, authors of decryption programs commonly state that their programs are written to test and validate the actual security of the program it is decrypting. Whether or not this is actually the case is very difficult to determine.

Anyone who has been sued knows that a lawsuit, whether it is justified or not, puts undue stress and overhead on an organization regardless of the outcome. Lawsuits like this are enough to make anyone with better things to do than defend themselves in court think twice about posting decryption programs to the net.

 
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