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[dvd-announce] EFF Files Final Brief, Oral Argument Set for May 1

The EFF filed its final reply brief in the appeal of Universal v. Reimerdes 
Monday.  The brief, online at 
restates the arguments that 1201 violates the First Amendment and 
unconstitutionally extends copyright control to limit the fair use of 
copyrighted works, and corrects the studios' misstatements.

The Court has scheduled oral argument for Tuesday, May 1, 2001 at 10 a.m. 
(courtroom 506, US Courthouse, 40 Centre St at Foley Square, Manhattan). 20 
minutes has been allotted per side.  If enough of us plan to attend, we'll 
have an Openlaw get-together (to be planned).  The Second Circuit doesn't 
announce the panel of judges who will hear the case until about a week 


Introduction to the EFF Reply Brief:
The core question presented by this appeal is whether the District Court's 
interpretation of 17 U.S.C. 1201 reaches too far, violating the First 
Amendment rights of 2600 Magazine and its readers, along with fair users, 
ordinary users of purchased DVDs, computer scientists and other members of 
the media. 2600 Magazine argues that it does, in three unprecedented ways, 
and that properly construed, it need not.

The First Amendment is violated by enjoining publication of and linking to 
a computer program by a magazine as part of news coverage; preventing the 
public study, discussion and review of protection and circumvention 
methods; and eliminating fair and noninfringing use of copyrighted content.

Thus, whether viewed in terms of enjoining the press, distorting scientific 
discourse or frustrating fair use, First Amendment rights are violated 
here. 2600 Magazine argues that each of these violations requires strict 
scrutiny and that, for each of them, the District Court's statutory 
interpretation fails that test. Alternately, 2600 Magazine argues that the 
District Court's interpretation fails even intermediate scrutiny, since 
absolutely banning the publication of circumvention technologies ignores 
the public side of the copyright bargain, is overly broad and fails to 
leave ample alternative publication channels.

What is equally important in evaluating this case, however, is recognizing 
how the First Amendment is not implicated. Many of the claims advanced by 
the opposing parties and amici respond to arguments that 2600 Magazine has 
not made. First, 2600 Magazine claims no First Amendment right to use 
copyrighted material, except in the context of fair use or noninfringing 
use. Second, 2600 Magazine does not argue that the First Amendment limits 
the Studios' use of access control technologies (Opening Brief at 64-67). 
Instead, the issue is whether the statute should be interpreted to allow 
the force of law to prevent access by "unauthorized equipment," even by 
lawful purchasers of DVDs or legitimate fair users.

Third, 2600 Magazine claims no First Amendment right to engage in 
proscribed "conduct." What it did here is undisputed: it published a news 
item about the DeCSS controversy and attendant to that published the 
program itself. It later linked to the program, as did the New York Times, 
Time Warner subsidiary CNN, the San Jose Mercury News and many others. In 
both instances, its only "conduct" was publishing on the Internet.

As the Studios' brief makes clear, the First Amendment problems at issue 
here arise from an underlying question: whether 1201 is to be limited to 
its goal of shielding copyright holders from infringement or whether, as 
the Studios claim, it is a sword that empowers them to wield unprecedented 
control over the private viewing of copyrighted works. The Studios claim 
that 1201 grants them control over the players for their works.1 This 
admission demonstrates that, despite their protestations, the Studios' 
concerns here transcend copyright infringement. For them, 1201 is the key 
to gain over digital content what they have unsuccessfully attempted to 
gain over past formats-control over the means of viewing their works.
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Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School