19 January 2001

Date: Fri, 19 Jan 2001 00:29:45 -0800
From: Robin Gross <robin@eff.org>
Subject: Publisher Appeals Injunction Against News Story

EFF DVD UPDATE: Friday, January 19, 2001

Publisher Appeals Injunction Against News Story

(NY)  Online civil liberties group the Electronic Frontier Foundation (EFF) today asked a federal appeals court to overturn a lower court's interpretation of the Digital Millennium Copyright Act (DMCA) as creating an unconstitutional restraint on free expression.

EFF appealed a lower court's injunction against 2600 Magazine preventing it from publishing and linking to information about how DVDs work as part of its news coverage of the debate surrounding the encryption applied to DVDs.  The banned information is a computer program called DeCSS that decrypts the data contained on DVDs.

In January 2000 eight major motion picture studios sued the magazine and its publisher under the "anti-circumvention" rules of the DMCA.  The District Court in the Southern District of New York decided that those rules prevent 2600 Magazine from publishing or even linking to DeCSS because it can be used to circumvent the encryption placed on DVDs.  CSS is designed to prevent copyright infringement, but the Court held that publishing DeCSS was illegal even when no infringement had occurred and despite the fact that it was being used for legitimate, even constitutionally protected purposes.

Emmanuel Goldstein, Editor-in-Chief of 2600 Magazine said, "The anti-circumvention provisions of the DMCA threaten the media's ability to point the public to truthful information.  The First Amendment has always protected such publication."

EFF argues that the District Court did "great violence" to both the First Amendment and the Copyright Clause to the U.S. Constitution when it censored the magazine's speech.  EFF Legal Director Cindy Cohn said, "the District Court decision puts the anti-circumvention rules of the DMCA on a collision course with the Constitution.  We are asking the 2nd Circuit to prevent this by interpreting the statute consistent with the First Amendment and settled Copyright law."

The appeal argues, first, that the District Court erred in failing to apply the strict First Amendment scrutiny that is traditionally required before forcing news magazines to take down news stories.  Second, it argues that because DeCSS is required in order for people to make fair use of movies, the injunction preventing its publication by 2600 Magazine is unconstitutional because it prevents people from exercising their constitutional rights with regard to DVDs.  Examples of such fair uses include movie critics and academics who wish to use snippets of movies for criticism and parody, video researchers who seek to catalogue images in movies for digital searching, cryptographers who wish to make scientific study of the encryption on DVDs and reverse engineers who wish to make competing DVD players.

The appeal further argues that the justification that the District Court used to deny full constitutional protection to the magazine, -- that the computer code may be "functional" when used by others -- is not a legitimate basis on which to lessen First Amendment protection for those who publish it.  "Courts cannot silence the messenger," Cohn noted, "simply because others might misuse the message."

DeCSS was authored by a Norwegian teenager, Jon Johanson, as part of an effort to develop an open source DVD player for the Linux operating system that would compete with the studios' monopoly on DVD players.

Next Friday, numerous amici briefs supporting 2600 Magazine's right to publish and link to this information will be filed with the 2nd Circuit, including briefs from the ACLU, the Digital Future Coalition, librarians, journalists, computer scientists, law professors, educators, and crytographers.  The studios' reply brief is due on February 19 and oral argument before the 2nd Circuit is expected in April.

EFF is defending individual rights in the DVD cases as part of its Campaign for Audiovisual Free Expression (CAFE).  CAFE was launched in June 1999 to address complex social and legal issues raised by new technological measures for protecting intellectual property.

For 2600 Magazine’s appeal brief to the Second Circuit, see:


For complete information on EFF's DVD cases, see:


For more information concerning EFF's Campaign for Audiovisual Free Expression, see:


The Electronic Frontier Foundation (http://www.eff.org) is the leading civil liberties organization working to protect rights in the digital world.  Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world.


   Robin D. Gross - Cyberspace Attorney @ Law
   Electronic Frontier Foundation
   w: http://www.eff.org   e: robin@eff.org
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