There are also over 300 Websites that still link to the decryption code, many beyond the reach of the MPAA. According to Gross, one defense the EFF will cite in the case's briefing stage is a recent 6th Circuit Court of Appeals decision confirming that code qualifies as speech, and as such is protected by the First Amendment.
The Ninth Circuit surprised everybody by asking the parties to start briefing on whether Code Section 107 was constitutional and appointing an amicus, Professor Erwin Chemerinsky, to make the argument that it was not.