ELECTRONIC FRONTIER FOUNDATION                                 
                                 
                                 
THIS-PAGE NAVIGATION MAP: 
                                           *** LYNX USERS CLICK HERE FOR QUICK NAVIGATION MAP FOR THIS PAGE *** Top of main content of this page Special focus (if any) Main feature Sidebar (if any) Whole-Site Navigation Bar Search/Browse Subscribe to mailing list (Back to top of page)                                                               
WHOLE-SITE NAVIGATION MENU:
  Search:  
    
advanced/help
Search:   
Browse:    
                                                         
                                                        

EFF Supplemental Letter Brief

in Corley v. Universal appeal



LETTER BRIEF
BY ORDER OF THE COURT

Hon. Jose Cabranes							May 30, 2001
Hon. Jon Newman
Hon. Alvin Thompson
United States Court of Appeals
   for the Second Circuit
40 Foley Square
New York, NY 10007

Re:	Universal & United States of America v. Corley 

	Case No. 00-9185

Pursuant to the Court's invitation, 2600 Magazine responds to the
questions asked by the Court in its Order of May 8, 2001 and to two
issues that arose during the oral argument of this case on May 1, 2001.

A.  Questions in the May 8, 2001 Order.

1. Are the anti-trafficking provisions of the Digital Millennium
Copyright Act content-neutral? See 111 F. Supp. 2d 294, 328-29 (S.D.N.Y.
2000).

No.  As applied here to computer code, the anti-trafficking provisions
(specifically §1201(a)(2) and (b)) are content-based in that they
specifically target the publication of, and linking to, scientific
expression based on the particular topic addressed by that
expression—namely, techniques for circumventing CSS. The fact that the
expression here was conveyed in a professional language, computer code,
does not change the content-based nature of the provisions. The
restriction at issue here is no different from a regulation prohibiting
engineers from using blueprints, as opposed to English prose, to explain
how to build a photocopier, without applying the same prohibition to
discussion of other kinds of machines.

But even if §1201(a)(2) and (b) could be construed as content neutral,
they would still need to meet the stringent requirements of Turner
Broadcasting System, Inc. v. Federal Comm. Commission, 512 U.S. 622, 663
(1994)("Turner I"), standards they cannot meet as described infra at
13-15 and 17-20.

Moreover, even if the statute could be construed as content neutral, the
District Court's injunction here should not be. The injunction targets
only speech – the publication of and linking to DeCSS .  It specifically
bars "posting on any Internet web site" or any link to another web site
"for the purpose of disseminating DeCSS." Universal, 111 F. Supp. 2d at
346-347 (amended final judgment), and therefore should be receive
strictest scrutiny.

And even if the injunction could be construed as content neutral, the
Supreme Court recently reminded us that the application of such relief
to a member of the media requires scrutiny "of the highest order."
Bartnicki v. Vopper 532 U.S. ___ (May 21, 2001) (slip op. at 12) (citing
Smith J. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979)).  In
Bartnicki, the Supreme Court applied this high level of scrutiny to a
content-neutral law forbidding the "disclosure" of a tape of an
illegally intercepted cellphone conversation when the information
contained was a matter of public concern and the defendants did not
participate in the illegal interception. The tape concerned a teachers'
union negotiation and was broadcast by media. Here, where § 1201 has
been applied to forbid media publication of the information contained in
a computer program that is a matter of public concern, the First
Amendment requirements emphasized in Bartnicki are squarely raised.

2. Does DeCSS have both speech and non-speech elements?

No. DeCSS itself has no non-speech elements.  It is a set of
instructions written in a specific professional language that expresses
ideas to those who can read that language. Computer programmers and
scientists communicate using programming languages because these
languages are an unambiguous mode of expression. Universal, 111
F.Supp.2d at 345, n. 225 (testimony of Dr.Touretzky). These facts and
the legal cases supporting them are further described in the Amicus
Brief of Abelson, et. al. at 13-17.

That a person might use a computer program to do something does not by
itself add "nonspeech" elements to the text.  Blueprints and
instructions for a photocopier, recipes, books about fixing cars, and
videos on baby care surely count as fully protected speech, no matter
how "functional" their content might prove to be. Prohibition of these
works merely because recipients might easily do what they describe or
explain would require searching First Amendment review and
justification.

The fact that DeCSS is pure speech does not, of course, prevent
regulation of computer programs any more than it prevents regulation of
other kinds of dangerous speech.  Settled laws of aiding and abetting
liability and conspiracy allow prosecution of those who disseminate
computer programs (see infra  at ___). However, the mere fact that
programs can be used to direct the functioning of computers, by itself,
does not require the creation of a new category of "non-speech" or
partial "non-speech" for them.

Moreover, even when the "functionality" of DeCSS is considered, it is
important to remember the limited function of this particular program.
Despite the Government's inflammatory rhetoric, DeCSS is not
intrinsically harmful. No one can use DeCSS to "shut off navigational
systems on airplanes or shut down smoke detectors in public buildings."
By itself, DeCSS does not even perform any infringing activity. A person
can use DeCSS to do only one thing -- access the content on a DVD. From
that point a person must choose what to do with the decrypted movie. She
could play it on a Linux computer, copy a snippet for a book report,
make a personal back-up copy, or feed it into a database to be used for
scholarly research, all permissible, fair uses of the DVD content. See
e.g. Universal, 111 F.Supp.2d at 322.

More disturbing than its factual inaccuracy is the disregard for the
First Amendment in the Government's rhetoric. It argues against the free
exchange of scientific and technical information through the press on
matters of public concern by making irresponsible comparisons between
the dissemination of such information and acts of deliberate, criminal
harm by those who receive the information. It is one thing to prosecute
those who would jam aircraft navigation, but quite another to prohibit
engineers from discussing technologies that, in the hands of unknown
criminals, might be used for this purpose.  This claim demonstrates why,
as the Supreme Court has just reminded us in Bartnicki, the courts must
be vigilant in their application of First Amendment standards.

3. Does the dissemination of DeCSS have both speech and non-speech
elements?

No. The dissemination of DeCSS, here by a member of the media covering
an issue of public concern, is pure speech.  See e.g. Bartnicki at 11-12
("It is true that the delivery of a tape recording might be regarded as
conduct, but given that the purpose of such a delivery is to provide the
recipients with the text of recorded statements, it is like the delivery
of a handbill or a pamphlet, and as such, it is the kind of "speech"
that the First Amendment protects.") That the communication occurred on
the Internet does not change the analysis. The Internet is "a unique and
wholly new medium of worldwide human communication" that receives full
First Amendment protection.  Reno v. ACLU, 521 U.S. 844, 850, 879
(1997).

4. Does the use of DeCSS to decrypt an encrypted DVD have both speech
and non-speech elements?

It can.  The use of DeCSS always facilitates access to expression, since
the use of DeCSS to decrypt an encrypted DVD simply allows access to a
movie, just as a newsrack allows access to a newspaper, a CD player
allows access to the music on a CD and a word processor allows access to
a document. Such acts are analyzed as activities "commonly associated
with expression" for which First Amendment scrutiny applies. See City of
Lakewood v. Plain Dealer Publishing, 486 U.S. 750, 769 (1988). Use of
DeCSS to decrypt can have similar expression-related uses, such as
allowing the viewing of a movie one has purchased, fair use of DVD
content, or scientific analysis of the encryption programs used on DVDs.

But the use of items that give access to speech may not be fully
protected by the First Amendment. A sound truck or newsrack has no such
protection when used to block the sidewalk or street, nor does a word
processor when used to create a ransom note.  Similarly, the use of
DeCSS to aid in copyright infringement is not "commonly associated" with
protected expression, and thus may be prosecuted as copyright
infringement without running afoul of the First Amendment.

5. Does the existence of non-speech elements, along with speech
elements, in an activity sought to be regulated alone justify
intermediate level scrutiny?

No. Many speech activities, like flag-burning and charitable
solicitation, have non-speech elements. In both situations, regulation
that impacts the speech elements based upon their content merits "the
most exacting scrutiny."  United States v. Eichman, 496 U.S. 310, 318
(1990) (flag burning);  see e.g. Village of Schaumburg v. Citizens for a
Better Environment, 444 U.S. 620, 632 (charitable solicitation). In
other words, it is not the presence or absence of non-speech elements,
but rather the content-based nature of the challenged regulation, that
determines the appropriate First Amendment scrutiny.

6. If DeCSS or its dissemination or its use to decrypt has both speech
and non-speech elements and is not subject to intermediate level
scrutiny simply because of the non-speech elements, is intermediate
level scrutiny appropriate because of the close causal link between
dissemination of DeCSS and its improper use? See 111 F. Supp. 2d at
331-32.

No. There is no First Amendment precedent establishing that a "causal
link" between publication of speech and its "improper use" justifies the
imposition of intermediate scrutiny. As the Supreme Court recently
observed, "it would be quite remarkable to hold that speech by a law
abiding possessor of information can be suppressed in order to deter
conduct by a non-law-abiding third party."  Bartnicki at 14. The logic
behind §1201 is the same -- suppressing the speech of 2600 Magazine in
order to deter copyright infringement by non-law-abiding third parties.
And here, not only was the information lawfully acquired, it was
publicly available in many other places prior to its publication by 2600
Magazine and is still widely available today.

Even when the speech has a close causal link to violent activity, as was
considered in Brandenberg, National Association of Colored Persons v.
Claiborne Hardware, 458 U.S. 886 (1982), and most recently in Planned
Parenthood v American Coalition of Life Activists, 244 F.3d 1007 (9th
Cir. 2001); 2001 WL 293260, courts have consistently rejected the
argument that a mere "link" between speech and illegal activity is
sufficient grounds to prevent or punish the speech.

Instead, speaker liability is not allowed "unless that speech is capable
of producing imminent lawless action."  Brandenberg at 447.  As the
Planned Parenthood court noted, "[I]t doesn't matter if the speech makes
future violence more likely; advocating 'illegal action at some
indefinite future time' is protected."  Planned Parenthood 244 F.3d at
1015 (citing Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam)).

If the First Amendment does not permit imposition of liability upon a
pro-life group for publishing individuals' names and addresses, a
publication that caused the effected individuals to take extraordinary
steps to protect themselves and their families, it should not permit
imposition of liability upon 2600 Magazine based merely on the assertion
that DeCSS might increase the likelihood that plaintiffs' copyrighted
DVD movies will be infringed by third parties.

Outside the context of the alleged "advocacy" of violence, the law still
consistently requires more than a mere "causal connection" in order to
impose liability on a speaker based upon the acts of the recipients of
his speech. Aiding-and-abetting liability, which reaches speech, has two
related requirements, neither of which exists in §1201. First, it
requires intentional wrongdoing, not mere recklessness, by the abettor.
Central Bank of Denver N.A. v. First Interstate Bank of Denver. N.A.,
511 U.S. 164, 190 (1994); see 18 U.S.C. § 2.  Focusing on intentional
wrongdoing creates breathing space for publishers like the New York
Times and 2600 Magazine.

Second, aiding-and-abetting liability requires that the underlying
offense in fact be committed, although the government need not prove by
whom it was committed. See, e.g., United States v. Superior Growers
Supply, Inc., 982 F.2d 173, 177-78 (6th Cir. 1992); United States v.
Campa, 679 F.2d 1006, 1013 (1st Cir. 1982). Here, of course, no acts of
copyright infringement have been linked to 2600 Magazine's publication
of DeCSS.

Similarly, speech that is part of a conspiracy can only be punished if
it is shown the speaker (i) knew of the intended unlawful use of the
information and (ii) agreed with other conspirators that an offense
would be committed.  See generally Direct Sales Co. v. United States,
319 U.S. 703 (1943); United States v. Pinckney, 85 F.3d 4, 8 (2d Cir.
1996).  § 1201 does not require either element.

Finally, even under intermediate scrutiny, the government bears the
burden to establish the closeness of a causal link between the
publication of a text that can have both legal and illegal purposes and
the illegal activity allegedly facilitated by the use of the text. See
e.g. Turner I at 663 (government must do more than posit the existence
of a disease to be cured).  Neither an unsubstantiated legislative
pronouncement nor a judicial hunch -- and certainly not the unproven
"actual threat" of illegal activity claimed by the Appellees at oral
argument -- is sufficient. Intermediate scrutiny demands substantial
evidence, independently reviewed by the court, for determining the close
causal link between the dissemination of DeCSS and any allegedly
imminent illegal use.

7. If the District Court is correct that the dissemination of DeCSS
"carries very substantial risk of imminent harm," 111 F. Supp. 2d at
332, does that risk alone justify the injunction? In other words, does
that risk satisfy the requirements for regulating speech under
Brandenburg v. Ohio, 395 U.S. 444 (1969), thereby rendering unnecessary
an inquiry as to whether non-speech elements of DeCSS or its
dissemination or its use (if such exists) may be regulated under United
States v. O'Brien, 391 U.S. 367 (1968)?

No. As noted above, Brandenburg Court held, "the constitutional
guarantees of free speech and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of law violation except
where such advocacy is (1) directed to inciting or producing imminent
lawless action and (2) is likely to incite or produce such action." 
Brandenberg, 395 U.S. at 448.  Neither § 1201 on its face nor the
District Court's application of it required proof of intent, imminence
or likelihood of illegal action; mere illusion to "substantial risk"
falls far short of Brandenberg's strict requirements. At a minimum, a
remand would be required to permit the court to make findings on these
questions.

8.  Are the three criteria identified at 111 F. Supp. 2d 333 the correct
criteria for determining the validity, under intermediate level
scrutiny, of the use of DeCSS that has been enjoined?

No. We note that the use of DeCSS has not been enjoined; the injunction
targets only its dissemination. We further note that, as discussed
above, the Supreme Court has recently affirmed that more searching
review is required where  media publication of lawfully acquired
information about a matter of public concern is at issue. Bartnicki at
12.

Intermediate scrutiny requires that the regulation of speech must "not
burden substantially more speech than necessary" to advance the
government's interests.  Turner I, 512 U.S. at 661; Turner Broadcasting
v. FCC, 520 U.S. 180, 185 (1997). Under the Turner standard, the burden
rests upon the government to "demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way." Turner I, 512 U.S.
at 664. Such a showing requires an empirical record "assur[ing] that, in
formulating its judgments, Congress has drawn reasonable inferences
based on substantial evidence." Id. at 666, and  "judicial findings
concerning the availability and efficacy of ‘constitutionally acceptable
less restrictive means' of achieving the Government's asserted
interests."  Id. at 668.

The District Court's three criteria obviously fail these requirements. 
First, by allowing a near total ban on the dissemination of
circumvention tools they ignore the requirement that the statute "burden
no more speech than necessary."  The criteria are completely silent as
to circumvention of access controls for legitimate, speech-related
purposes, including fair use and scholarly study of encryption and
circumvention methods.

Second, as noted above, Turner requires searching consideration, by both
Congress and a reviewing court, of the availability of less restrictive
means, not merely a finding by the court that there is no other
practical means of preventing infringement than banning the publication.
As explained in further detail below, Congress had many less restrictive
options that it failed to consider in any material way.  See infra at
17-20.

Third, the "governmental motivation" criterion adopted by the district
court conditions liability on how a program "may be used" instead of
limiting it to how the program has been used.  Moreover, it ignores the
innate nature of computer programs by asserting a specious distinction
between the "function for which the programs exist" and the "message
they may convey." As Dr. Touretsky and the Abelson amici demonstrated,
what computer programs say cannot be divorced from what they permit
people to do with them. Thus, the District Court's test expands the
injunction standard from one targeting illegal behavior to one that
inevitably requires changes in the content and message of the program
itself.  And it does so even before any harm has occurred.

9.  If not, what modification or supplementation would be required to
conform to First Amendment requirements?

As explained both above and below, Turner first requires consideration
of whether §1201 itself is constitutional, including consideration of
whether Congress had less restrictive alternatives. But even if §1201 is
facially justified, it may not be constitutionally applied to
publication of a program such as DeCSS unless the District Court has
found:

1.  That there is no noninfringing use, fair use or free speech right to
offer DeCSS.

2.  That a sufficient relationship exist between 2600 Magazine and
infringers under the aiding and abetting or conspiracy standards; and

3.  That DeCSS was used to infringe copyrights or that an imminent
danger of copyright infringement exists under the standards announced in
Brandenburg.

If these modifications cannot be made without diverging extensively from
the legislative framework, the statute must be struck on its face.

10. Are the three criteria identified at 111 F. Supp. 2d 341 and the
"clear and convincing evidence" standard the correct criteria and the
correct standard of proof for testing the validity of the injunction's
prohibition of posting on the defendant's website and of linking?

No. As government acknowledged at oral argument, the District Court's
announced test for the injunction of links could bar even the
publication in a newspaper of a list of addresses where contraband books
could be found. It would require a court to evaluate the motives behind
the publication of challenged links in deciding whether to impose § 1201
liability, and that such a searching evaluation would apply as much to
links published by the New York Times or Professor Jane Ginsburg (see
Appellants' Opening Brief at 14) as those published by 2600 Magazine.
The chilling effect on speech caused by the specter of such ex post
facto evaluation of a publisher's motives is plain.

Once again, the recent Bartnicki decision addresses the infirmities of
this test. In Bartnicki the statute was held to be insufficiently
protective of speech when it created liability for the willful
disclosure of the contents of a wire communication with knowledge that
the information was obtained through illegal intervention. Bartnicki at
8. Here, similarly, the District Court's test requires only the willful
linking to DeCSS with the knowledge that it may not lawfully be offered
and the intent to disseminate -- not the intent to cause or aid and abet
any harm. Bartnicki teaches us yet again that restraining the press from
conducting its legal activities in the interest of limiting others'
wrongdoing is not only bad social policy: it is also forbidden by the
First Amendment.

11. If not, what modification or supplementation would be required to
conform to First Amendment requirements?

A link is simply a reference, indicating that certain information is
available in a particular place. A link should be enjoined when, and
only when, the court would also enjoin a similar reference by a print
publication.  Even supposing, arguendo, that DeCSS is speech not covered
by the First Amendment, this injunction should be affirmed only if, to
take an example suggested by the Court at oral argument, it would be
constitutional to enjoin a newspaper from giving the address of a
bookstore where allegedly obscene books may be found in the course of
reporting on an ongoing debate about adult booksellers. The comparison,
even when the subject is not protected speech, shows how far beyond the
boundaries of accepted First Amendment doctrine the District Court
strayed here.

B.  Questions Raised at Oral Argument.

1.  Many Less Restrictive Alternatives Could Have Limited Infringement
While Preserving Fair and Noninfringing Use.

As noted above, even before the specific application of the statute is
addressed, Turner requires a judicial finding that Congress properly
considered less restrictive means to meet its goal. Here, Congress
enacted a near total ban on the dissemination of circumvention
technology, so the inquiry must look at whether this drastic step was
necessary. In doing so, this Court "can take Congress' different, and
significantly less restrictive, treatment of a highly similar problem as
at least some indication that more restrictive means are not ‘essential'
(or will not prove very helpful)."  Denver Area Educational
Telecommunications Consortium v. FCC, 518 U.S. 727, 757 (1996).  Here,
any of the alternatives listed below would suffice to defeat the
Appellees' claim.

a) Congress could have restricted circumvention liability to those who
have intentionally aided and abetted copyright infringement or who have
engaged in a conspiracy to infringe copyrights, following the path taken
by "burglars tools" statutes.  See supra, question 8; e.g. Appellants'
Reply Brief at 17-19; ACLU amicus brief at 19-22.

b) Congress could have limited liability to circumvention for illegal
purposes, as outlined in the Boucher and Ashcroft bills, rather than
extend liability to tools makers and tools disseminators. H.R. 3048,
105th Cong. § 8 (1997) (Boucher); S. 1146, 105th Cong. tit. III (1997)
(Ashcroft).

c) Congress could have protected fair and noninfringing uses the same
way it protected the ephemeral recordings in the DMCA. 17 U.S.C.
§112(a)(2). There, Congress expressly required copyright owners to "make
available to the transmitting organization the necessary means" for
making ephemeral copies and authorized self-help if the means are not
made available "in a timely manner." Id. Congress could have done the
same for fair use: required that copyright owners utilizing
technological protection measures make copies of their work available
for fair or noninfringing uses, allowing circumvention and the
dissemination of the required circumvention programs should they fail to
do so.

d) Congress could have followed the model of the Vessel Hull Design
Protection Act, 17 U.S.C. §1309, passed as part of the same legislative
package that contained § 1201.  In that statute, Congress required that
a disseminator of information be liable only if he or she "induced or
acted in collusion with" one who actually gains unauthorized access to a
work.

e) Congress could have followed the model it used for analog VCRs.
Although 17 U.S.C. §1701(k) requires that VCRs conform to copy control
technologies, it also generally prohibits the use of such technologies
"to prevent or limit consumer copying." 17 U.S.C. §1201(k)(2). Congress
provided that failure to allow consumers to copy is itself an unlawful
"act of circumvention" by the content holder.  17 U.S.C. §1201(k)(5).

f) Congress could have followed the model of the Audio Home Recording
Act ("AHRA"), 17 U.S.C § 1002(a), which permits fair and noninfringing
users to make one copy of a copyrighted work but allowed the prevention
of serial copying.

Each of these steps would have been less restrictive than § 1201. Each
would have been as effective. They therefore demonstrate that Congress
failed to adequately consider the balance between speech and copyright
protection. In fact, Congress' approach turned that balance on its head.
 Normally, speech is protected and potential harms to others are
remedied as they arise. In contrast, in passing §1201, Congress barred
all nonconsensual access to digital expression in an effort to prevent
economic harm to copyright owners that may someday arise, while leaving
speech to be protected by later legislation or caselaw.

At oral argument, the Court asked whether Congress' failure to consider
the obviously less restrictive means of the AHRA was due to a lack of
applicable technology. The answer is no. Sophisticated copy control
mechanisms for DVDs that limit users to a limited number of copies,
which copies cannot be further re-copied, exist and were actively being
developed even before §1201 was enacted.   Thus, the assertion of the
government and Appellees during argument that a "single copy" limitation
such as that provided by AHRA would not be sufficient protection today
because that single copy could be "uploaded" to the Internet and
thereafter copied by an unlimited number of others is simply wrong.

At the same time that the Appellees were seeking §1201 from Congress,
they were also seeking proposals for an AHRA-type system for DVDs.  In
July, 1997, the DVD Copy Protection Technical Working Group ("DVD
CPTWG"), a coalition made up of the Appellees and consumer electronics
manufacturers, issued a call for proposals  that included in its
requirements serial copy management capability of "generational control
for one copy," including three "states" in which content could be
distributed: "never copy," "no more copy" and "one copy."

Serial copyright management schemes can be set to allow any set number
of copies and to follow a number of rules, including allowing the
copying of a number of certain sized snippets from a work. For example,
in 1997 Digimarc described the technology it had developed with
Macrovision as follows:  "[D]igital watermarks embedded in movies and
other video material act as an invisible identity providing . . . rules
to either allow or disallow playback, viewing, and copying onto another
digital recorder."

Beginning September, 1997, the DVD CPTWG received eleven proposals in
response to its request from such companies as IBM-NEC, 
Pioneer-Hitachi-Sony, Macrovision-Digimarc-Phillips.   Thus, Congress'
failure to consider an AHRA model for DVDs when it enacted §1201 in 1998
was not because DVDs could not be distributed with serial copyright
management schemes.

While serial copy management technologies do not enable the full range
of uses allowed under the fair use doctrine or fully preserve other
noninfringing uses, these systems are certainly less restrictive than
the complete prohibition on access to CSS-protected works created by the
District Court's interpretation of §1201. Coupled with a proper
statutory model, these technologies could provide protection against
copyright infringement without the severe impact on free speech, fair
use and the public domain created by §1201.

2. Can Congress Eliminate Fair Use in New Media?

At argument, the Court asked whether "fair use" meant a right to access
the work in the technologically most usable form.  The short answer is
that fair use extends to works in whatever form they are offered to the
public.

The longer answer is that, since fair use is the safety valve by which
the First Amendment and copyright exist peacefully, if different media
permit different levels of individual expression through fair use, then
decisions by Congress to impede the most useful means require
justification under the First Amendment. A prohibition on using copy
machines to make fair use could not be answered—under today's First
Amendment law—with the retort that one can hire monks to scribe the
relevant passages. Similarly, the possibility of disseminating indecent
materials by videotape could not save a prohibition on the distribution
of such materials via the Internet.  See Reno, supra. The claim that a
lesser means of communications would be available to users no more
answers the First Amendment question here than in these other cases.

No one can force the Appellees to release their works in digital form.
Once they do so, however, the First Amendment underpinnings of fair use
and the limited nature of the copyright holder's exclusive rights
require that these limits on copyright apply unless the Government can
sustain its heavy burden to show why these expressive uses should be
banned in this new medium of expression.

By enacting the DMCA, Congress intervened early at the behest of
powerful commercial interests to regulate a robust and expanding market
for digital expression. It did so by abandoning the traditional balance
of copyright law and by giving the Appellees vastly greater control over
access to their works than copyright law has traditionally provided. See
Netanel, Locating Copyright Within the First Amendment Skein, 54
Stanford Law Rev. 63 (May 2001 Draft) (forthcoming October, 2001). 
According to the government at argument, the reason was as much about
providing the Appellees a subsidy to induce them to go online as it was
about a concern that changing technology would undermine copyright
protection. But burdening fair and noninfringing use—the privileged
expression of users—to subsidize preferred speakers is constitutionally
infirm.

Conclusion

We do not question the right of Appellees to protect their works.  Nor
do we argue that they must publish their works in digital form. We only
claim that when Appellees choose to publish copies of their works in
digital form, those copies are subject to limiting principles, some of
which derive from the Constitution.  Even if code may protect works from
copying more completely than the law, the law may reinforce that code
only to the extent the Constitution allows.

		Respectfully submitted,

		
Kathleen M. Sullivan        Cindy A. Cohn              Martin Garbus
                            Electronic Frontier        Frankfurt, Garbus, Kernit,
                            Foundation                 Klein and Selz, P.C.

Attorneys for Appellants
			




Search:   
Browse:    

Please send any questions or comments to webmaster@eff.org.