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EFF: Defense's Post-Trial Memorandum of Law, in MPAA v. 2600

Aug 09, 2000, 19:10 (0 Talkback[s])

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"In this case of first impression, plaintiffs argue for an interpretation of the DMCA that would give copyright owners the power to eliminate fair use of their works, by giving them direct authority over all physical means usable to display or copy those works. This Court's decision will have far reaching implications - not just for publishers like Mr. Corley and 2600.com - but on the development of new technologies and on the flow of information and ideas on the web, since virtually all intellectual property will soon be in digital form. The DMCA is complex and inconsistent. One part says that it doesn't affect free speech, the press, or fair use; other parts appear to outlaw the publication of tools for these purposes, or the act of making fair use. The legislative history provides little guidance given the divergent and often conflicting views expressed."

"If Congress truly intended to give copyright holders the right to control and eliminate fair use of their work, it has radically changed the boundaries between copyright and the First Amendment. The contours of these boundaries have major societal implications, altering the relationships among citizens, consumers, engineers, academics, businessmen, creators, scientists, and publishers. The statute, to the extent it attempts to alter the scope of the First Amendment, must be strictly scrutinized."

"The tool at issue, DeCSS, permits forms of fair use, such as brief excerpting or quotation, scientific study, or archiving by libraries; plaintiffs' authorized players deliberately do not. The Court should not ignore these rights on the theory that this is not an infringement action. If Congress has created new ways for copyright owners to restrict the literary, political, or scientific discourses protected by fair use and the First Amendment, these new ways must also be applied consistently with the First Amendment."

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