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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.
Wendy Seltzer -- firstname.lastname@example.org
Fellow, Berkman Center for Internet & Society at Harvard Law School