“This may be the most important challenge to the Digital
Millennium Copyright Act (DMCA) yet mounted, because 2600 didn’t
make whole, copyrighted works available, but rather made a utility
program available which, while outlawed by the DMCA on grounds that
it enables evildoers to circumvent a technical access control to
copyrighted work, is also an item of journalistic interest.
” The brief cites the 1989 decision in Florida Star v. B.J.F.,
stating that “[I]f a newspaper lawfully obtains truthful
information about a matter of public significance then state
officials may not constitutionally punish publication of the
information, absent a need to further a state interest of the
highest order.”
“On the basis of that, 2600 argues that it is a news outfit
(perhaps its weakest claim here), that what it published is of
public significance (no argument from us), and that, surely, there
can be no ‘state interest of the highest order’ in keeping it
secret (self evident).”