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Two Items on DeCSS: 2600 Answers the Court's "11 Questions," Peter Junger on the DMCA

May 31, 2001, 15:10 (24 Talkback[s])

[ Thanks to Bryan Taylor for this mail:]

Subject: [dvd-announce] 2600, studios repsond to Second Circuit's questions on DeCSS
From: Wendy Seltzer <wendy@seltzer.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:
and a press release at:

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:

Earlier filings from the case are at 

Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School

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.

I should have the new version of the the article posted at the same URL shortly: http://samsara.law.cwru.edu/dmca/qart.pdf

There will be little or no change in the substance of the article; the changes have to do with the fact that considering the 2d Circuit's questions and Bartnicki, I would expect the Reimerdes case to be decided on the grounds that the anti-trafficking provisions, if applied to the text of computer programs, violate the First Amendment. Thus the article's subject is not likely to be determinative in the actual appeal of the Reimerdes case.

I look forward to getting back to work on the much more interesting and important issue of the protection that the First Amendment gives to the writing and publication of computer programs.

-- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH

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