Robin Gross, EFF Staff Attorney for Intellectual Property
robin@eff.org
NEW YORK: On behalf of a magazine and its editor, Internet civil liberties group the Electronic Frontier Foundation (EFF) today asked a federal appeals court to overturn a lower court's interpretation of the Digital Millennium Copyright Act (DMCA) as creating an unconstitutional restraint on free expression.
EFF appealed a lower court's injunction against 2600 Magazine preventing it from publishing and linking to information about how DVDs work as part of its news coverage of the debate surrounding the encryption applied to DVDs. The banned information is a computer program called DeCSS that decrypts the data contained on DVDs.
In January 2000 eight major motion picture studios sued the magazine and its publisher under the "anti-circumvention" rules of the DMCA. The District Court in the Southern District of New York decided that those rules prevent 2600 Magazine from publishing or even linking to DeCSS because it can be used to circumvent the encryption placed on DVDs. CSS is designed to prevent copyright infringement, but the Court held that publishing DeCSS was illegal even when no infringement had occurred and despite the fact that it was being used for legitimate, even constitutionally protected purposes.
Emmanuel Goldstein, Editor-in-Chief of 2600 Magazine said, "The anti-circumvention provisions of the DMCA threaten the media's ability to point the public to truthful information. The First Amendment has always protected such publication."
EFF argues that the District Court did "great violence" to both the First Amendment and the Copyright Clause to the U.S. Constitution when it censored the magazine's speech. EFF Legal Director Cindy Cohn said, "the District Court decision puts the anti-circumvention rules of the DMCA on a collision course with the Constitution. We are asking the 2nd Circuit to prevent this by interpreting the statute consistent with the First Amendment and settled Copyright law."
The appeal argues, first, that the District Court erred in failing to apply the strict First Amendment scrutiny that is traditionally required before forcing news magazines to take down news stories. Second, it argues that because DeCSS is required in order for people to make fair use of movies, the injunction preventing its publication by 2600 Magazine is unconstitutional because it prevents people from exercising their constitutional rights with regard to DVDs. Examples of such fair uses include movie critics and academics who wish to use snippets of movies for criticism and parody, video researchers who seek to catalogue images in movies for digital searching, cryptographers who wish to make scientific study of the encryption on DVDs and reverse engineers who wish to make competing DVD players.
The appeal further argues that the justification that the District Court used to deny full constitutional protection to the magazine, -- that the computer code may be "functional" when used by others -- is not a legitimate basis on which to lessen First Amendment protection for those who publish it. "Courts cannot silence the messenger," Cohn noted, "simply because others might misuse the message."
DeCSS was authored by a Norwegian teenager, Jon Johanson, as part of an effort to develop an open source DVD player for the Linux operating system that would compete with the studios' monopoly on DVD players.
Next Friday, numerous amici briefs supporting 2600 Magazine's right to publish and link to this information will be filed with the 2nd Circuit, including briefs from the ACLU, the Digital Future Coalition, librarians, journalists, computer scientists, law professors, educators, and crytographers. The studios' reply brief is due on February 19 and oral argument before the 2nd Circuit is expected in April.
EFF is defending individual rights in the DVD cases as part of its Campaign for Audiovisual Free Expression (CAFE). CAFE was launched in June 1999 to address complex social and legal issues raised by new technological measures for protecting intellectual property.
For the 2600/EFF appeal brief to the Second Circuit, see:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010119_ny_eff_appeal_brief.html
For complete information on EFF's DVD cases, see:
http://www.eff.org/IP/Video
For more information concerning EFF's Campaign for Audiovisual Free
Expression, see:
http://www.eff.org/cafe
The Electronic Frontier Foundation (http://www.eff.org) is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world.
Motion Picture Associatio of America (MPAA) members, beginning at the tail end of 1999, have filed suit under that controverial Digital Millennium Copyright Act (DMCA) to prevent the online availability of a free program called DeCSS which cracks the extremely weak encryption (CSS) "protecting" commercial DVDs from being played on computer DVD drives that run under operating systems that are not "approved" by the movie industry, including Linux. The MPAA has alleged that DeCSS is a piracy tool, even though DVDs can be easily pirated without DeCSS, and DeCSS is required for Linux users to be able to play their legally purchased and owned DVDs on their own computers. The case at hand, officially Universal v. Remeirdes named several defendants, including 2600, for posting or even linking to DeCSS, alleging violation of DMCA provisions against distribution of copyright infringement tools. A similar case in Connecticut was also filed, and a very different case (based on state trade secret law) was filed by MPAA members (some the same as in the NY and CT cases, others different) against hundreds of plaintiffs. MPAA members even went to far as to have Norwegian law enforcement authorities (probably wrongfully) arrest the 16-year-old co-author of DeCSS, on more far-fetched copyright infringement-related accusations.
EFF believes that the DMCA harms - nearly eliminates - all of the public's fair use rights, and makes criminals of people doing perfectly legitimate things. Our Campaign for Audiovisual Free Expression (CAFE) advances the following principles in response to the DMCA and related intellectual property holder "land grabs" against your rights:
These facts and the rights the uphold are already a long-standing feature of American intellectual property law. The new DMCA law turns most of it on its head, and allows monied industries to attack underfunded individuals, publishers and organizations with near impunity, for doing what they have a right to do in the first place.
Founded in 1990, The Electronic Frontier Foundation (EFF) actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Websites in the world.
For the 2600/EFF appeal brief to the Second Circuit, see:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010119_ny_eff_appeal_brief.html
For complete information on EFF's DVD cases, see:
http://www.eff.org/IP/Video
For more information on EFF's Campaign for Audiovisual Free
Expression, see:
http://www.eff.org/cafe