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Re: [dvd-discuss] 2600's request for rehearing en banc denied
I don't think much strategic thinking was involved in MPAA's bringing
this case. They were alarmed and embarrassed by the sudden appearance
of DeCSS on the Internet and sued everyone in sight. It was 2600
that decided to take a stand. While maybe not ideal, the 2600 case
has a lot of positive aspects for a Supreme Court appeal:
o the defendant is a magazine, making First Amendment issues hard to ignore
o the 2nd Circuit went out on a limb by denying that fair use is a
o the district court's ruling greatly broadened the applicability of
the O'Brian draft-card burning "conduct vs speech" distinction,
something the Supreme Court appears to have explicitly rejected in
Bartniki v. Volper
o the linking issue is obviously important to the future of the
Internet and the distinction that the 2nd Circuit draws between an
address published in a newspaper and a link creates a new doctrine
that speech deserves less protection the more effective it is.
The denial of en banc review by the 2nd Circuit should not be seen
as alarming. The court rules state that en banc review is
"disfavored" and the Supreme Court's decision to hear Eldred probably
convinced them that this case is going to be settled there regardless.
Nor should we be afraid of a Supreme Court hearing because the
defendants are characterized as "hackers." The current Supreme Court
seems very attuned to free speech rights and is not afraid to
champion unpopular causes to protect them. For example just a month
ago, in Ashcroft vs. Free Speech Coalition, the court struck down
major provisions of the Child Pornography Prevention Act. Also the
Supreme Court has been very protective of the Internet. They gave it
full First Amendment status in Reno (something the 2nd Circuit
ignored) and a majority in last week's ACLU vs. Ashcroft expressed
concerns about how to apply to the Internet the "community
standards" element of the obscenity definition.
The Supreme Court may well try to find some way to protect copyright
holders. We should be thinking about an amicus brief that both
presents the dangers of DMCA and makes clear that there are less
restrictive alternatives. It's time to stop second guessing and roll
up our sleeves.
At 12:25 PM -0700 5/20/02, Bryan Taylor wrote:
>I agree. Remember that the MPAA chose 2600. It would be much better to go to
>the SC with a more sympathetic defendent and hopefully with the benefit of a
>favorable decision in Eldred.
>The 2600 case probably settled once and for all the issue of whether code is
>speech. Now the game is about getting the Courts to spend less time thinking
>about whether it's speech, but instead to have them focus on what it means for
>it to be speech. Some of the 2nd Circuits analysis was laughably bad,
>especially the part about the insignificance of the person who executes the
>program because it's so little physical action to click a mouse. In another
>circuit, with Code = Speech as a given, the debate will be begining not ending
>with the mertis of such claims.
>The Elmsoft case will present a much better forum for hitting the "powers of
>Congress" issue. This will be an especially powerful argument if Eldred wins.
>--- Ernest Miller <email@example.com> wrote:
>> I am optimistic that Eldred will win, but it not clear to me how decisive or
>> broad the win will be. Considering how screwed up the 2600 case has become,
>> I think it probably best to wait for another case or at least until Eldred
>> has been decided.
>> If Eldred is decided as favorably as I hope (not expect) it will be, then
>> the next DMCA case will give the defense a whole lot more ammo.
>> ----- Original Message -----
>> From: "someone somewhere" <firstname.lastname@example.org>
>> To: <email@example.com>
>> Sent: Saturday, May 18, 2002 8:23 AM
>> Subject: [dvd-discuss] 2600's request for rehearing en banc denied
>> > Wired is reporting that 2600's request for rehearing en banc for the 2nd
> > > circuit court of appeals is denied.
>> > http://www.wired.com/news/politics/0,1283,52609,00.html
>> > Declan McCullagh seems to suggest that it might be better not to appeal to
>> > the supreme court, my guess on this is that with scotus recently accepting
>> > to hear eldred, they are willing to go against the ever increasing
>> > of copyright law.
>> > _________________________________________________________________
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