Re: [dvd-discuss] 2600's request for rehearing en banc denied

[microlenz(at)earthlink.net]

On 21 May 2002 at 10:09, Arnold G. Reinhold wrote:

Date sent:      	Tue, 21 May 2002 10:09:44 -0400
To:             	dvd-discuss@eon.law.harvard.edu
From:           	"Arnold G. Reinhold" <reinhold@world.std.com>
Subject:        	Re: [dvd-discuss] 2600's request for rehearing en banc denied
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> I don't think much strategic thinking was involved in MPAA's bringing 
> this case. They were alarmed and embarrassed by the sudden appearance 
> of DeCSS on the Internet and sued everyone in sight. 

All 39,000 other kayakers? They didn't just stick a pin in a computer listing 
although if they used microsoft products to randomly select there's less 
randomness than can be expected.

> It was 2600 
> that decided to take a stand. 

Yes that is true.

>While maybe not ideal, the 2600 case 
> has a lot of positive aspects for a Supreme Court appeal:
> 
> o the defendant is a magazine, making First Amendment issues hard to ignore
> 

Which Judge Lewis Kaplan chose to completely ignore by showing his prejudice 
for the "hacker"....and that's something else to consider. To many in our 
judicial and legislative branch, "hacker" has replaced "certain ethnic", " 
certain political belief", "certain skin color" as the principle element of 
prejudice...or soon will be.

> o the 2nd Circuit went out on a limb by denying that fair use is a 
> constitutional right
> 

<D/A> But the esteamed Judge Whyte has pointed out, fair use is not endangered 
since one can always get it in another media <sarcasm ON> Including old tin 
boxes, vitaphones, 78rpms and betamax

> o the district court's ruling greatly broadened the applicability  of 
> the O'Brian draft-card burning  "conduct vs speech"  distinction, 
> something the Supreme Court appears to have explicitly rejected in 
> Bartniki v. Volper
>

Good point
 
> o the linking issue is obviously important to the future of the 
> Internet and the distinction that the 2nd Circuit draws between an 
> address published in a newspaper and a link creates a new doctrine 
> that speech deserves less protection the more effective it is.
> 

Actually, a very good point. The unspoken fact here is that they are attempting 
to regulate speech on the basis of how often people utter it. That warrents 
some judicial review. 

> The denial of en banc review by  the 2nd Circuit should not be seen 
> as alarming. The court rules state that en banc review is 
> "disfavored" and the Supreme Court's decision to hear Eldred probably 
> convinced them that this case is going to be settled there regardless.
> 

No guts No Glory. I was wondering why they went to the trouble to ask the 
additional questions after argumentation. I think you are right here. But it 
does tell me that, unlike the dissenter in Eldred v Ashcroft, there is no USSC 
Justice material here.

> Nor should we be afraid of a Supreme Court hearing because the 
> defendants are characterized as "hackers." The current  Supreme Court 
> seems very attuned to free  speech rights and is not afraid to 
> champion unpopular causes to protect them. For example just a month 
> ago, in Ashcroft vs. Free Speech Coalition, the court struck down 
> major provisions of the Child Pornography Prevention Act. Also the 
> Supreme Court has been very protective of the Internet.  They gave it 
> full First Amendment status in Reno (something the 2nd Circuit 
> ignored) and a majority in last week's ACLU vs. Ashcroft expressed 
> concerns about how to apply to the Internet  the "community 
> standards" element of the obscenity definition.

Yes. And should the USSC overturn, it is even more of a message to the lower 
courts. Abe Fortas argued in Gideon V Wainwright that the continued 
intervention of the USSC in capital cases was unhealthy for the judicial 
system. So too here. If everytime Congress makes a law it gets passed to the 
USSC for ultimate review without even an intelligent review in between, it's 
not healthy. The USSC can't support the workload and the lower courts are just 
being lazy. After all Learnd Hand was one of the most influential jurists of 
the 20th century yet was not USSC. O.W.Holmes Jr. did great work at the Mass 
S.C. before his elevation to the USSC.

> 
> The Supreme Court may well try to find some way to protect copyright 
> holders. We should be thinking about an amicus brief that both 
> presents the dangers of DMCA and makes clear that there are less 
> restrictive alternatives.  It's time to stop second guessing and roll 
> up our sleeves.
> 
> Arnold Reinhold
> 
> 
> 
> At 12:25 PM -0700 5/20/02, Bryan Taylor wrote:
> >I agree. Remember that the MPAA chose 2600. It would be much better to go to
> >the SC with a more sympathetic defendent and hopefully with the benefit of a
> >favorable decision in Eldred.
> >
> >The 2600 case probably settled once and for all the issue of whether code is
> >speech. Now the game is about getting the Courts to spend less time thinking
> >about whether it's speech, but instead to have them focus on what it means for
> >it to be speech. Some of the 2nd Circuits analysis was laughably bad,
> >especially the part about the insignificance of the person who executes the
> >program because it's so little physical action to click a mouse. In another
> >circuit, with Code = Speech as a given, the debate will be begining not ending
> >with the mertis of such claims.
> >
> >The Elmsoft case will present a much better forum for hitting the "powers of
> >Congress" issue. This will be an especially powerful argument if Eldred wins.
> >
> >--- Ernest Miller <ernest.miller@aya.yale.edu> wrote:
> >> I am optimistic that Eldred will win, but it not clear to me how decisive or
> >> broad the win will be.  Considering how screwed up the 2600 case has become,
> >> I think it probably best to wait for another case or at least until Eldred
> >> has been decided.
> >>
> >> If Eldred is decided as favorably as I hope (not expect) it will be, then the
> >> next DMCA case will give the defense a whole lot more ammo.
> >>
> >> ----- Original Message -----
> >> From: "someone somewhere" <chaos755@hotmail.com>
> >> To: <dvd-discuss@eon.law.harvard.edu>
> >> Sent: Saturday, May 18, 2002 8:23 AM
> >> Subject: [dvd-discuss] 2600's request for rehearing en banc denied
> >>
> >>
> >> > Wired is reporting that 2600's request for rehearing en banc for the 2nd
> > > > circuit court of appeals is denied.
> >> >
> >> > http://www.wired.com/news/politics/0,1283,52609,00.html
> >> >
> >> >
> >> > Declan McCullagh seems to suggest that it might be better not to appeal to
> >> > the supreme court, my guess on this is that with scotus recently accepting
> >> > to hear eldred, they are willing to go against the ever increasing
> >> strenght
> >> > of copyright law.
> >> >
> >> > _________________________________________________________________
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> >
> >
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