[dvd-announce] 2600, studios repsond to Second Circuit's questions on DeCSS

[Wendy Seltzer <wendy@seltzer.com>]

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://cyber.law.harvard.edu/openlaw/DVD/NY/>.

--Wendy
--
Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html