[dvd-announce] Studios Reply, Government Intervenes Against 2600

[Wendy Seltzer <wendy@seltzer.com>]

News updates from <http://dvd.openlaw.org/>:

The studios filed their response to 2600's appeal early this week.  Their 
complete support for Judge Kaplan's decision was tempered only by the 
suggestion that he gave _too much_ credence to 2600's arguments that code 
deserves First Amendment protection.

"As the Studios demonstrate below -- and as Judge Kaplan correctly found in 
a comprehensive and well-reasoned opinion -- the trafficking proscriptions 
of the DMCA are aimed at conduct, not speech. Application of the DMCA to 
Corley's conduct of indiscriminately disseminating an unlawful 
circumvention device to the public does not violate the First 
Amendment."  The studios argue that even O'Brien scrutiny is more than 
DeCSS deserves -- the code is merely a "device" swept under 1201's 
generally applicable trafficking prohibitions.

Notably absent is any recognition that 1201 does not just incidentally 
restrict speech, but entirely bans a class of discussion of decryption 
techniques.  Appellees do, however, spend a series of footnotes arguing 
that out-of-context quotations from various amici contradict their briefs 
in this case.

Studios' brief: <http://cryptome.org/mpaa-v-2600-bpa.htm>


In addition, the court granted the government's request to intervene and 
accepted a brief filed by the U.S. Attorney's office for the Southern 
District of New York.  The government brief supports Section 1201's 
constitutionality, calling it a narrowly tailored, content-neutral restriction.

"[D]espite defendants' efforts to pitch this case as a classic story of the 
gadfly press, and to cast themselves in the role of the protagonist 
reporter who seeks only to convey truthful information to the public, this 
lawsuit is really about computer hackers and the tools of digital 
piracy."  In a nice bit of circular reasoning, the government argues that 
the statute is narrowly tailored because the speech in DeCSS is itself the 
harm against which 1201 is aimed.

Government brief: <http://cryptome.org/mpaa-v-2600-usa.htm>


Both briefs further argue that 2600 may not raise fair use arguments as a 
defense to its posting of DeCSS, asserting that fair use is not 
constitutionally mandated, that 1201 validly precludes a fair use defense 
to trafficking, and that 2600 may not raise the rights of others.
Thanks to Cryptome for heroic efforts HTMLing and posting these briefs!

2600 will have a further reply brief before oral argument is 
scheduled.   More news and documents are online at <http://dvd.openlaw.org/>.
Join the discussion of arguments for the defense on the dvd-discuss list.

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