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    The Openlaw/DVD forum began with a discussion of the legal issues in the DeCSS cases, and for analysis of those issues to help the defense teams. This document suggests some background resources to introduce you to the discussion.

    There are two key DeCSS cases:

    1: Universal City Studios, Inc.v. Reimerdes, the "DMCA" case. The major movie studios, members of the MPAA, sued 2600 Magazine and its publisher, Emmanuel Goldstein, for violation of the Digital Millennium Copyright Act, Section 1201. The studios claimed that by posting and linking to DeCSS, 2600 was providing a technology for "circumvention" of access and copy controls on copyrighted works. The Second Circuit Court of Appeals, in New York, agreed with the studios that DeCSS was an unlawful circumvention device.

    The case tested the scope and constitutionality of the DMCA's anticircumvention provisions -- whether the act can cripple technological innovation and scientific exploration in the name of protecting copyright. The plaintiff movie studios claimed that DeCSS illegally circumvents DVD access controls, while the defense challenged the studios' assertion of an absolute right to control the manner in which movies are played, arguing that DeCSS enables fair use of DVD media and facilitates the playing of movies on unsupported operating systems. Defendants also asserted that the code itself is speech that demands First Amendment protection.

    Participants in the Openlaw discussion filed an amicus brief ("friend of the court" brief by a non-party to the suit) opposing the MPAA plaintiffs' proposals to bar 2600 from hyperlinking to DeCSS.

    In November 2001, the Second Circuit Court of Appeals affirmed district court's permanent injunction, barring 2600 Magazine from posting or linking to DeCSS code. The court held that congress could legitimately regulate the "functionality" of DeCSS code.


    2: DVD Copy Control Assoc. v. McLaughlin: A trade secret claim filed in California state court by the DVD Copy Control Association (DVDCCA), which claims that the DeCSS code distributed across the Internet is its proprietary trade secret and that every poster of the code has illegally appropriated the secret.

    The California state appeals court recently lifted a preliminary injunction on the posting of DeCSS, holding that DeCSS code is "pure speech" that must not be subjected to prior restraint under the trade secret laws.

    In addition, the California Supreme Court (the state's highest court) held that Matt Pavlovich, a LiViD developer who did not live or work in California, could not be made to face trial in California for the alleged trade secret violation. The United States Supreme Court briefly stayed that judgment, then lifted its stay, allowing the California decision to stand.

    Discussion in this forum has centered on challenging the DMCA claims, specifically the alleged violation of 17 U.S.C. 1201: Circumvention of copyright protection systems

    The dvd-discuss FAQ gives a good overview of where the discussion has been so far.

    Finally, an early outline of potential defenses and challenges to section 1201.

    Links to the court opinions and other background material are on the Openlaw/DVD Resources page

    Most of the forum's discussion occurs on the dvd-discuss mailing list and in the tWiki web.

    Thanks for joining us!

    Wendy Seltzer
    Berkman Center for Internet & Society