Robin Gross, EFF Staff Attorney for Intellectual Property
+1 415 863 5459
robin@eff.org
NEW YORK: Eight Amici or "friend of the court" briefs were filed today in support of the Electronic Frontier Foundation's appeal of an injunction against 2600 Magazine, which banned the media site from publishing and linking to information under the Digital Millennium Copyright Act (DMCA) last August.
Warning the 2nd Circuit Court of Appeals of the danger to free expression posed by the DMCA, diverse groups including the American Civil Liberties Union, Association for Computing Machinery Law Committee, American Library Association and others asked the appellate court to overturn a lower court's ruling. Last year, a district court in New York barred 2600 Magazine from publishing or linking to DeCSS, the computer code that was at the heart of a controversy the magazine was covering. Other groups filing briefs with the appellate court include journalists, law professors, educators, cryptographers, computer programmers and academics -- all warning the appellate court of the impingement upon First Amendment freedoms that result from the lower court's dangerous interpretation of the DMCA's anti-circumvention provisions and broad elimination of fair use rights.
Stanford Law professor Lawrence Lessig, who co-sponsored an amicus brief with NYU's Yochai Benkler, explained the harm to freedom of expression posed by the lower court's broad granting of rights to the movie studios under the DMCA. "The First Amendment limits the scope of copyright. It should also limit the scope of code that protects copyright. That is the core issue in this case," Lessig said.
A sponsor of the computer programmers' brief, noted Princeton University computer science professor Edward Felten, stated, "the lower court's interpretation of the DMCA would effectively shut down research in some areas of computer security, by banning the publication of research results in those areas. Ironically, it has already prevented me from publishing research results that could be used to strengthen the protection of copyrighted works," explained the scientist who recently cracked RIAA's encryption scheme for music, the Secure Digital Music Initiative (SDMI).
Speaking on behalf of the nation's librarians, Miriam Nisbet of the American Library Association stated, "the lower court's decision seriously harms the public's ability to make legitimate, fair use of digital works. As the founders of our country and Constitution recognized, free speech and fair use are critical components of a democracy."
According to EFF's Legal Director Cindy Cohn, "the combination of a broad alliance of amici briefs, each targeting a specific issue and pointing out the dangers and flaws in the lower court's ruling, presents a powerful argument that the public's rights have been trampled in a variety of ways by the lower court's careless handling of civil liberties under the DMCA."
On January 19, 2001 EFF and 2600 Magazine filed their appeal brief with the 2nd Circuit, requesting the lower court's ban be lifted and the DMCAs anti-circumvention provisions be overturned on First Amendment grounds. The movie studios must file their reply brief by February 19th, and oral arguments are expected before the 2nd Circuit in April.
EFF is defending individual rights in the DVD cases as part of our 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.
Amicus Brief Sponsors: Libraries & public interest groups -- American Civil Liberties Union (ACLU),
Digital Future Coalition (DFC), American Library Association (ALA),
American Research Libraries (ARL), Music Library Association (MLA)
Issues Raised: Dangerous First Amendment implications in district court's ban on linking and publishing information on information about DVD copy restrictions. The lower court's interpretation of the DMCA broadly eliminates the public's fair use rights through its banning of fair use tools.
Brief Author: Ann Beeson of ACLU
Available from http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_aclu_pressrel.html (ACLU press release; includes link to PDF file of brief).
Amicus Brief Sponsors: Journalists and publishers -- Online News Association, Reporters' Committee for Freedom of the Press, Newspaper Association of America, Student Press Law Center, Wired, Pew Center on the States, Silha Center for Media Ethics and Law, College of Communications - CSU, Fullerton
Issues Raised: The chilling effect the district court's ban on linking to DeCSS has had on the press' ability to report truthful information of important public concern. Holding media liable for readers' possible future illegal acts, as the lower has done, does great damage to freedom of press and expression.
Brief Authors: David Greene of First Amendment Project and Jane Kirtley
Available from http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_journpub_amicus.html
Amicus Brief Sponsor: ACM (Association for Computing Machinery) Law Committee
Issues Raised: The lower court's elimination of traditional reverse engineering rights under the DMCA imperils science, innovation, and free expression.
Brief Authors: ACM Law Committee Chair Andrew Grosso with Eddan Katz
Available from http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_acmlc_amicus.html
Amicus Brief Sponsors and Authors: Noted law professors Lawrence Lessig of Stanford and Yochai Benkler of NYU
Issues Raised: The lower court's narrow interpretation of the DMCA cannot withstand constitutional scrutiny under the First Amendment. Congress effort to control DeCSS is actually an unconstitutional effort to control speech.
Available from http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_2profs_amicus.html
Amicus Brief Sponsors: Numerous expert law professors -- Keith Aoki, Ann Bartow, Paul Schiff Berman, Stuart Biegel, Thomas F. Blackwell, James Boyle, Dan L. Burk, Julie E. Cohen, Thomas F. Cotter, Rod Dixon, Eric B. Easton, Michael M. Epstein, Christine Haight Farley, Susanna Frederick Fischer, William W. Fisher III, A. Michael Froomkin, Laura N. Gasaway, Llewellyn Joseph Gibbons, Laurence R. Helfer, Peter Jaszi, Dennis S. Karjala, Raymond Shih Ray Ku, Mary LaFrance, Michael Landau, David Lange, Mark A. Lemley, Joseph P. Liu, Lydia Pallas Loren, Michael J. Madison, Charles R. McManis, Michael J. Meurer, Eben Moglen, Craig Allen Nard, Ruth Gana Okediji, L. Ray Patterson, Mark R. Patterson, Malla Pollack, David G. Post, Margaret Jane Radin, J.H. Reichman, David A. Rice, Michael L. Rustad, David E. Sorkin, John R. Thomas, Sarah K. Wiant, Jonathan L. Zittrain
Issues Raised: DMCA is unconstitutional because Congress went beyond its power in enacting the DMCA, which has also placed restrictions upon the First Amendment that are too great to withstand constitutional scrutiny.
Brief Author: Copyright Law Professor Julie Cohen of Georgetown University
Available at http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_lawprofs_amicus.html
Amicus Brief Sponsors: Various leading computer programmers & academics -- Dr. Harold (Hal) Abelson, Dr. Andrew W. Appel, Dr. Dan Boneh, Dr. Edward W. Felten, Dr. Robert Harper, Andy Hertzfeld, Dr. Brian Kernighan, Dr. Marvin Minsky, Dr. James Morris, Dr. P.J. Plauger, Dr. John C. Reynolds, Dr. Ronald Rivest, Dr. Avi Rubin, Dr. Barbara Simons, Dr. Eugene H. Spafford, Richard Stallman, and Dr. David S. Touretzky
Issues Raised: Computer source code is creative expression worthy of full First Amendment protection and the lower court erred greatly by creating a new category of illegal speech.
Brief Author: James Tyre, Esq.
Available at http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_progacad_amicus.html
Amicus Brief Sponsors: Numerous noted cryptographers -- Dr. Bruce Schneier, Dr. Steven M. Bellovin, Dr. Matt Blaze, Dr. David Wagner, Dr. Dan Boneh, Dr. Ian Goldberg, Dave Del Torto, Frank Andrew Stevenson.
Issues Raised: The lower court's ruling threatens the important science of cryptography, which relies upon an open exchange of information.
Brief Author: Jennifer Granick of Stanford Law School's Center for Internet and Society
Available at http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_crypto_amicus.html
Brief Sponsors: Educators who rely on fair use rights --
Dr. Siva Vaidhyanathan, Mary Wallace Davidson, Ernest Miller,
Christina Olson Spiesel
Issues Raised: Impingement upon the educational uses of intellectual property that results from the lower court's elimination of fair use rights under its ruling.
Brief Authors: Edward Cavazos and Gavino Morin from Cavazos, Morin, Langenkamp & Ferraro LLP
Available at http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_edu_amicus.html
For the EFF/2600 Magazine 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
Motion Picture Association of America (MPAA) members, beginning at the tail end of 1999, filed suit under the controversial 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. Reimerdes named several defendants, including 2600 Magazine, 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, in California. MPAA members even went so 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 they 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 moneyed industries to attack underfunded individuals, publishers and organizations with near impunity, for doing what they have a right to do in the first place.
The Electronic Frontier Foundation 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.
Please send any questions or comments to webmaster@eff.org.