July 4, 2002

EFF, 2600 give up: Won't appeal loss in DVD descrambling case

First some commentary from Declan McCullagh, from his Politech mailing list, then the official EFF press release below. McCullagh: Whatever one thinks of the DMCA, abandoning this case was a good move. Remember the history:
1. 2600 loses in federal district court:
http://www.wired.com/news/politics/0,1283,38287,00.html
2. 2600 loses before a three-judge appeals court panel:
http://www.wired.com/news/politics/0,1283,48726,00.html
3. 2600 loses before the full Second Circuit Court of Appeals, which
refused to rehear the case:
http://www.wired.com/news/politics/0,1283,52609,00.html

Did anyone think the Supreme Court would do anything different? Since
EFF does not have unlimited resources, and since 2600 does not have to pay
a fine -- the judge ordered only the deletion of DeCSS.exe and links to
it -- this decision made sense.
What this also reinforces is that every judge that has looked at the
DMCA's anti-circumvention sections has thought they're perfectly grand. DMCA
opponents now have four obvious choices:

1. Wait for a better test case
2. Convince Congress to amend the DMCA (fat chance):
http://www.wired.com/news/politics/0,1283,45522,00.html
http://www.wired.com/news/politics/0,1283,52602,00.html
3. Incite violent revolution
4. Get used to it

--Declan

Electronic Frontier Foundation Media Release

2600 Magazine Won't Seek Supreme Court Review in DVD Case

Activists Vow to Continue Digital Copyright Fight

San Francisco - The Electronic Frontier Foundation (EFF)
announced today that online and print publisher 2600
Magazine will not seek U.S. Supreme Court review of a court
order prohibiting publishing or linking to the DeCSS
computer program. This decision ends the publication's
two-and-a-half year legal battle over DeCSS, which permits
DVD owners to use players that the entertainment industry
has not approved.

"We took several steps forward with this case, forcing the
courts to recognize that freedom of speech was at stake,"
explained EFF Legal Director Cindy Cohn. "Later cases will
provide a better foundation for the Supreme Court to act
on the problems created by the Digital Millennium Copyright
Act (DMCA)."

Kathleen Sullivan, the Dean of Stanford Law School, argued
the case on behalf of 2600 Magazine.

In December 1999, eight major motion picture studios sued
2600 Magazine for publishing an article containing the
DeCSS computer software and linking to DeCSS. Norwegian
teenager Jon Johansen developed and published the software
to great public interest, especially in the Linux
community. The New York Times, the San Jose Mercury News,
the Village Voice, and several other mainstream news
outlets reported on and linked to DeCSS' publication in
addition to 2600 Magazine's coverage.

Johansen created DeCSS in an effort to develop an open
source software player that would allow people to play
their lawfully purchased DVDs on computers running the
Linux operating system. But since people may also use the
DeCSS program as one step in infringing the copyrights of
DVD movies, both the New York District Court and the 2nd
Circuit Court of Appeals interpreted the DMCA as banning
2600 Magazine from publishing or linking to DeCSS.

"This case served as a wake-up call to the Internet
community," said 2600 Magazine publisher Emmanuel Goldstein.
"We have a stronger, more united community now, and we will
support future cases."

"EFF and 2600 Magazine will strive to ensure that the
public need not sacrifice its side of the copyright bargain
to Hollywood's fears of piracy," said EFF Intellectual
Property Attorney Robin Gross. Gross added that EFF is
considering other DMCA challenges and recently issued a
three-year report card detailing the law's faults.

In a related victory for DeCSS proponents, a California
Court of Appeals held that the preliminary injunction
violated the First Amendment rights of Andrew Bunner, a
DeCSS republisher in California. The California DVD case is
currently pending before the California Supreme Court.

About EFF:

The Electronic Frontier Foundation 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 and privacy online. EFF is a member-supported
organization and maintains one of the most-linked-to
websites in the world at
http://www.eff.org/.

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