Two Items on DeCSS: 2600 Answers the Court's "11 Questions," Peter Junger on the DMCAMay 31, 2001, 15:10 (24 Talkback[s])
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Subject: [dvd-announce] 2600, studios repsond to Second Circuit's questions on DeCSS From: Wendy Seltzer <email@example.com> Date: Wed, 30 May 2001 18:44:52 -0400 The EFF today filed its supplemental brief as requested by the Second Circuit, asserting unequivocally that DeCSS is speech that must be protected by the First Amendment. In response to eleven questions from the panel focusing on the First Amendment protections appropriate to code, 2600 explained that DeCSS code -- and 2600's publication of that code -- are pure speech that cannot be prohibited based on speculation about what others may do with that speech. The anticircumvention provisions of the Digital Millennium Copyright Act are content-based, targeting the information conveyed by DeCSS, and must therefore be subject to strict scrutiny. Neither Section 1201 nor the district court's injunction can withstand that scrutiny. The brief also noted that Congress had numerous less-restrictive alternatives available when it considered the DMCA. Finally, addressing Judge Newman's question whether fair use required use of the best format, 2600 concluded that under copyright's bargain, it required use in whatever format the author chose to publish: "We do not question the right of Appellees to protect their works. Nor do we argue that they must publish their works in digital form. We only claim that when Appellees choose to publish copies of their works in digital form, those copies are subject to limiting principles, some of which derive from the Constitution. Even if code may protect works from copying more completely than the law, the law may reinforce that code only to the extent the Constitution allows." The EFF's brief is online at: <http://www.eff.org/IP/Video/MPAA_DVD_cases/20010530_ny_eff_supl_brief.html> and a press release at: <http://www.eff.org/IP/Video/MPAA_DVD_cases/20010530_ny_eff_supl_brief_pr.html> Unsurprisingly, the studios responded with polar opposites to the same questions, asserting that the statute is content-neutral and raises no First Amendment concerns because DeCSS has no speech elements, being merely a device or "digital crowbar." Thanks to Declan McCullagh for putting the studios' brief online: <http://www.politechbot.com/docs/mpaa.appeals.brief.053001.html> Earlier filings from the case are at <http://eon.law.harvard.edu/openlaw/DVD/NY/>. --Wendy -- Wendy Seltzer -- firstname.lastname@example.org Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html
Marcia Wilbur writes:
Peter Junger has written an excellent article pertaining to the DeCSS case. He is the law professor who was involved in the Code is Speech trial. His article can be found at http://samsara.law.cwru.edu/dmca/qart.pdf
Today is May 30th, the deadline for the submission of answers to questions posed by the appeals court in the Universal v. Reimeredes case, or better known as the DeCSS trial.
In an email he sent to Harvard's Openlaw, Junger writes:
I have not succeeded, as I had hoped, of supplying a revised draft of my article on why the anti-circumvention provisions of the DMCA do not apply to DVD's before today. The problem was that as I would make revisions, good news like the Bartnicki case would come along, and I would have to remake them, so it turned out to be more of a project than I expected.
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