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Educators Amici Brief in "MPAA v. 2600" Case
Brief of Amici Curiae in Support of Appellant (Jan. 26, 2001);
Universal v. Reimerdes (Jan. 26, 2001)
00-9185
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Universal City Studios, Inc., et al.
Plaintiffs-Appellees
v.
Eric Corley, a/k/a Emmanuel Goldstein and 2600
Enterprises, Inc.
Defendants-Appellants
Shawn C. Reimerdes, Roman Kazan
Defendants
____________________________________________
On Appeal From The United States District Court
For The Southern District Of New York
BRIEF OF AMICI CURIAE
Ernest Miller; Dr. Siva Vaidhyanathan; Mary Wallace
Davidson; Christina Olson Spiesel
IN SUPPORT OF APPELLANTS AND
REVERSAL OF THE JUDGMENT BELOW
EDWARD A. CAVAZOS, ESQ.
GAVINO MORIN, ESQ.
Cavazos, Morin, Langenkamp &
Ferraro L.L.P.
9020-I Capital of Texas
Highway, Suite 250, Austin, Texas 78759
(512) 340-1330
Counsel for Amici Curiae
January 26th, 2001
Table of contents
table of authorities ii
Preliminary Statement 1
IDENTITY AND INTEREST OF THE AMICI 1
SUMMARY OF ARGUMENT 3
ARGUMENT 3
-
The District Court’s Application of the DMCA
Deprives the Public of the Right to Engage in Traditionally
Protected Activities 3
-
Because it Deprives the Public of Valuable Fair
Uses, Judge Kaplan’s Interpretation of the DMCA is
Unconstitutional 17
Conclusion 20
Table of Authorities
Cases:
Berlin v. E.C. Publications Inc.,
329 F.2d 541 (2d Cir. 1964) 19
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) 12, 13
Elmsere Music, Inc. v. National Broad. Co.,
482 F. Supp. 741
(S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980) 12
Harper & Row v. Nation Enterprises,
471 U.S. 539 (1985) 18
Keep Thomson Governor Committee v Citizens for Gallen
Committee
457 F Supp 957, 199 USPQ 788 (1978, DC NH) 18
Kewanee Oil Co. v. Bicron Corp.,
416 U.S. 470 9
Leibovitz v. Paramount Pictures Corp.,
137 F.3d 109 (2d Cir. 1998) 14
New York Times Co. v. Roxbury Data Interface, Inc.,
434 F.Supp. 217 (NJ 1977) 15, 16
Rosemont Enterprises v. Random House, Inc.,
366 F.2d 303 (2d Cir. 1966) 18
Sega Enters. Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1992) 10, 11
Universal City Studios v. Reimerdes,
111 F.Supp.2d 294 (S.D.N.Y. 2000) 4, 18,19
Statutes and Constitutional Provisions:
U.S. Const. Art. I, § 8 18, 19
Other Authorities, Internet Sites:
1 Melville B. Nimmer &
David Nimmer,
Nimmer On Copyright
(1999) 10, 11
Andrew W. Appel &
Edward W. Felten, Technological Access Control Interferes with
Noninfringing Scholarship, Communications of the ACM,
Sept. 2000 7, 8
Margaret E. Watson,
Unauthorized Digital Sampling In Musical Parody: A Haven In The
Fair Use Doctrine?
21 W. New Eng. L. Rev.
469 (1999) 13
A Phillips Brooks,
Proposal: Replace Textbooks with Computers, The Austin
American-Statesman,
September 12, 1997, at B1 5
Chet Dembeck, Internet
Boosts Overall Book Sales, The E-Commerce Times (2000)
<http://www.ecommercetimes.com/news/articles2000/000602-6.shtml> 5
Warren Buckland,
Forensic Semiotics, 10(3) The Semiotic Review of Books (1999)
<http://www.chass.utoronto.ca> 6,7
Caleb Crain, The
Bard’s Fingerprints, Lingua Franca – The Review of
Academic Life (July/August 1998)
<http://www.linguafranca.com/9807/crain.html> 6
Preliminary Statement
The undersigned amici curiae respectfully submit
this brief amicus curiae in support of appellants Eric Corley,
a/k/a “Emmanuel Goldstein” and 2600 Enterprises with the
consent of all parties, pursuant to F.R.A.P. 29(a).
Identity and Interests of the Amici
Amici curiae, as educators, researchers and
librarians, write to address the threat to free speech and fair use
that upholding Judge Kaplan’s interpretation of the Digital
Millennium Copyright Act (DMCA) would pose.
Dr. Siva Vaidhyanathan is a media studies scholar and
cultural historian who holds a Ph.D. in American Studies from the
University of Texas at Austin. Dr. Vaidhyanathan currently serves as
a Faculty Fellow in the Department of Culture and Communication at
New York University, where he teaches classes entitled “Language
of Communication: Film, Radio, Television,” “Global Media,”
and “Impacts of Technology: The Digital Moment.”
Ernest Miller is Resident Fellow for the Information
Society Project at Yale Law School, which is committed to the
preservation and promotion of democratic values in the Information
Society. Mr. Miller also lectures on technology and ethics for the
Bergen County Academies, which are technology magnet schools in
Northern New Jersey.
Mary Wallace Davidson currently heads the William &
Gayle Cook Music Library
at Indiana University, where she also coordinates the program in
music librarianship at the School of Library and Information Science,
and teaches music bibliography and librarianship. She has long been
active in the Music Library Association, serving as its president
(1983 to 1985), and as a member or chair of its Legislation Committee
since 1990.
Christina
Olson Spiesel is a visual artist who teaches students at the
post-graduate level. She is currently co-teaching a course at
Quinnipiac University Law School entitled "Visual Persuasion in
the Law" that prepares lawyers to both use visual displays
effectively as part of their professional work and to understand
visual texts sufficiently to critique them and object to them as
necessary.
Each amicus makes frequent fair use of
copyrighted material, copied whole or in part, while teaching,
conducting research, or compiling bibliographic or monographic works
for scholarly dissemination. Amici curiae have learned from
years of experience to place great value on the ability and right to
quote, copy, and comment on elements of protected works without
having to ask permission or negotiate a formal licensing relationship
with the owner of the copyrighted works. Such uses are at the heart
of the on-going creation of our common culture. As information is
increasingly distributed solely in digital formats that are protected
by rights management and access control software, amici curiae
are acutely aware of the threat Judge Kaplan’s interpretation of
the DMCA presents to educational, research, and artistic endeavors.
Summary of Argument
The DMCA, as interpreted by the District Court,
precludes valuable and traditionally protected fair use activities in
the arts, sciences, and educational arenas. Accordingly, the District
Court’s interpretation of the DMCA is unconstitutional in that
it is contrary to the mandates of article 1 section 8 and the First
Amendment to the United States Constitution.
Argument
1. The District Court’s Application of the
DMCA Deprives the Public of the Right to Engage in Traditionally
Protected Activities
The decision of the District Court severely limits the
ability of the public to engage in activities that would otherwise
qualify as protected fair use. In his opinion, Judge Kaplan concluded
that “…congress elected to leave technologically
unsophisticated persons who wish to make fair use of encrypted
copyrighted works without the technical means of doing so…”
Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294,
324 (S.D.N.Y. 2000). That this interpretation of the statute would
have far reaching effects was not lost on Judge Kaplan, who
nonetheless maintained that, with regard to the fair use doctrine,
“the DMCA fundamentally altered the landscape.” Id.
at 323.
The ominous consequences of Judge Kaplan’s ruling
become apparent in light of the wide variety of valuable fair uses
that can be made with content stored in digital formats. Even if one
were to only look at DVD technology, as Judge Kaplan himself noted,
the range of possible fair uses one might make is “remarkably
varied,” Reimerdes, 111 F.Supp.2d at 338. Such
DVD-related fair uses include (1) taking quotations from the script
by a movie reviewer, (2) broadcasting an excerpt of a scene to
illustrate a review, (3) performing portions of the sound track by a
musicologist, and (4) making clips of scenes by a film scholar to
make a comparative point. Id. at 337 (acknowledging “that
numerous other examples doubtless could be imagined”).
But DVDs are only part of the story. Audio Compact
Discs (CDs), first introduced almost twenty years ago, have all but
replaced their analog predecessors, the phonorecords. The MP3 file
format for storing digital music is rapidly becoming the de facto
standard, supplanting CDs as they did phonorecords. Electronic books
(e-books) are rapidly gaining popularity, with sales expected to
reach $2.3 billion by 2005, which means they will account for ten
percent of all book sales. Chet Dembeck, Internet Boosts Overall
Book Sales, The E-Commerce Times (2000) at
http://www.ecommercetimes.com/news/articles2000/000602-6.shtml.
Moreover, in schools, plans are already in place for the replacement
of traditional textbooks with their electronic equivalents.
Formats for the representation of digital photographs and
computer-animated imagery are likewise quickly becoming ubiquitous.
When combined into multimedia works, any or all of these
technologies can meld to form unique, new representations of
information. It should come as no surprise, then, that educators,
researchers, and artists who rely on the fair use doctrine as they
work with, manipulate and build upon the content stored in these
digital formats would have serious concerns about any new doctrines
that limit their legitimate ability to do so.
The representative examples that follow are intended to
demonstrate that a wide array of activities extending well beyond the
types recognized by Judge Kaplan, are threatened by the DMCA as the
District Court interprets it. As seen below, these activities arise
in diverse educational, scientific, and artistic endeavors.
Text and Video Content Analysis
Stylometry is a social science created by coupling, in
an unlikely manner, statistics and literature. It applies
statistical methods to literary works to quantify and analyze
language style. See, Warren Buckland, Forensic Semiotics,
10(3) The Semiotic Review of Books (1999) available at
http://www.chass.utoronto.ca. Some of the stylistic data that is
analyzed includes sentence length and the use of “habit”
words. Id. One practical application of this relatively new
science is to attribute authorship to anonymous or pseudonymous text.
Thus, for example, Vassar English Professor Donald Foster recently
became the first scholar since the nineteenth century to uncover a
genuine new work by William Shakespeare. Caleb Crain, The Bard’s
Fingerprints, Lingua Franca – The Review of Academic Life
(July/August 1998) available at
http://www.linguafranca.com/9807/crain.html. This discovery came
after long and careful analysis of the new work vis-à-vis the
known works of Shakespeare. After this discovery, Professor Foster
was asked to analyze the anonymously written book Primary Colors
and attribute authorship to that work. His test results correctly
identified Joe Klein as the author. Id. Stylometry has also
been used by others to attribute authorship to such works as the
Federalists Papers and passages in the New Testament. Warren
Buckland, Forensic Semiotics, 10(3) The Semiotic Review of
Books (1999) available at http://www.chass.utoronto.ca.
Like stylometry, video content analysis, while still
very much in its infancy, looks to create new techniques to allow
fast and easy searching of video images. Andrew W. Appel &
Edward W. Felten, Technological Access Control Interferes with
Noninfringing Scholarship, Communications of the ACM, Sept. 2000
at 21. So, as an example, if the surgeon general wanted to search a
collection of videos to look for depictions of cigarettes, he could
simply type in a query and have the matching video clips cued up for
his viewing. Id. This field has tremendous potential in
scholarly and industrial applications.
The emergence and future of disciplines like stylometry
and video content analysis depend on the availability of large
volumes of data that can be easily accessed and manipulated. In
order to analyze this data, a stylometrist often needs access to the
copyrighted text of a work. Accordingly, the survival of these
promising fields depends on the ability to make fair use of that
content, which is increasingly only available in digital formats.
Put another way, practitioners of these new disciplines must be able
to access the work in the first place if they are going to analyze
it. Unfortunately, researchers who chose to work on digital works
are already hampered by access control technologies. Professor Peter
Ramadge of Princeton University has noted that his research work in
the field of video content analysis is being stymied by his lack of
access to high quality video. Id. Thus far, Professor
Ramadge has only been able to acquire licenses to two full-length
copyrighted digital video works for his research. Id.
Ideally, he would use DVD movies, but the CSS encryption routines
prevent him from accessing the content on the discs. Id.
Without a fair use exemption to the DMCA, those
researchers and scientists who could otherwise make fair use of
copyrighted material will be denied access to that material. Such a
result may very well kill these fledgling sciences, to the benefit of
none and the detriment of the public as a whole.
Reverse Engineering
The District Court’s application of the DMCA also
impedes the important ability of technologists and engineers to
engage in fair use-protected reverse engineering of computer
programs.
Reverse engineering is the common practice of
disassembling a product to discover how it works. Kewanee Oil Co.
v. Bicron Corp., 416 U.S. 470, 476 (1974).
In computer science, reverse engineering is especially
important because of the way that software is developed. Computer
software is written in programming languages (“source code”)
which is translated into a computer-readable form (“object
code”). Whereas source code can be easily deciphered by humans,
object code cannot. When consumers purchase software, they are
almost always receiving the object code without the source code.
Consequently, even an incredibly talented programmer would likely
find it impossible to decipher the internal workings of commercial
software without the ability to reverse engineer the object code.
This is significant because, unlike other authors such as novelists
and musicians, software authors, through the object code, hide
uncopyrightable elements such as ideas and concepts of their works.
See generally 1 Melville B. Nimmer & David Nimmer, Nimmer
On Copyright §13.05[D][4] (1999) (hereinafter “Nimmer”).
To determine precisely what object code is doing,
computer programmers employ special tools (disassembles or
decompilers) that allow them to reverse engineer the code. These
tools work by translating the object code back into source code,
which can be readily studied.
The process of reverse engineering object code will
always involve at least one act of copying (that of the reconstructed
source code). Nimmer §13.05[D][4]. In determining whether the
copying involved in reverse-engineering constitutes infringement,
courts have been quick to point out the resulting public policy
benefits of this technique. See, Sega Enters. Ltd. v.
Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). Indeed, courts
have recognized that software that cannot easily be analyzed by the
programming community precludes public access :
…to the ideas and functional concepts contained
in those programs, and thus confers on the copyright owner a de facto
monopoly over those ideas and functional concepts. That result
defeats the fundamental purpose of the Copyright Act to encourage the
production of original works by protecting the expressive elements of
those works while leaving the ideas, facts, and functional concepts
in the public domain for others to build on.
Sega
Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir.
1992).
“Ideally,” as Professor Nimmer has pointed
out, “a competitor – although bound to respect the original
code elements added by the programmer – should be free to use
the unprotected elements of the software…” Nimmer §
13.05[D][4]. Under the District Court’s interpretation of the
DMCA, however, the computer scientist who wishes to study unprotected
elements of software to improve her programming skills is prevented
from doing so if the software is protected by a technological measure
that effectively controls access.
More importantly, the DMCA proscription of reverse
engineering extends into the classroom. A computer science
instructor who reverse engineers a program protected with an access
control to demonstrate to her students the “real world” use
of an efficient sorting algorithm would risk liability under the
District Court’s interpretation of the DMCA. One could easily
imagine the consequences if instructors in other fields were faced
with similar restrictions. There would be very little progress in
science and the useful arts if biology teachers could no longer
dissect frogs, if English teachers could no longer diagram sentences,
and if auto shop teachers could no longer tear down engines. Yet,
this is exactly the state of affairs we are left with by the District
Court, whose interpretation of the DMCA turns educators wishing to
reverse engineer digital works for teaching into lawbreakers.
Digital Sampling for the Purpose of Musical Parody
A well-recognized form of fair use involves copying
elements of a musical work in order to parody it. Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569 (1994). This court, in
particular, has a long history of recognizing the value of parody
with regard to musical composition. In Elmsere Music, Inc. v.
National Broad. Co., this court reviewed a district court opinion
which held that NBC’s copying of certain elements of the
plaintiff’s musical composition in a Saturday Night Live parody
did not constitute an infringement. 482 F. Supp. 741, 743
(S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980).
Despite finding that the melody which was appropriated for the parody
was the “heart” of the plaintiff’s composition, the
district court granted a motion for summary judgment for NBC on the
grounds that using the plaintiff’s work in its parody was a fair
use. Id. at 744. This court, in affirming the district court’s
decision, declared that “a parody frequently needs to be more
than a fleeting evocation of an original in order to make its
humorous point.” Elsmere Music, 623 F.2d 252, 253 (2d
Cir. 1980) (citing Columbia Pictures Corp., v. National
Broad. Co., 137 F. Supp 348, 354 (S.D. Cal. 1955). As one
commentator has noted, “while each fair use analysis requires an
examination of the amount and substantiality of material copied, the
principle remains that musical parody, in order to be effective,
requires at least some copying.” Margaret E. Watson,
Unauthorized Digital Sampling In Musical Parody: A Haven In The
Fair Use Doctrine? 21 W. New Eng. L. Rev. 469 (1999).
In an increasingly digital world, digital copying or
“sampling” is inevitably employed to effectively parody a
musical work. Id. Sampling involves taking parts of a sound
recording and incorporating them in a subsequent work. If copying
the most memorable features of a song constitutes a fair use in
parody, as the Supreme Court held in Campbell, it seems clear
that digital sampling of a sound recording for the purpose of parody
would equally qualify for protection. Id. As the Supreme
Court held, “parody's humor, or in any event its comment,
necessarily springs from recognizable allusion to its object through
distorted imitation.” Campbell, 510 U.S. at 588.
Of course, if Judge Kaplan’s interpretation of the
DMCA is correct, this protected right would prove meaningless where a
music publisher simply releases its recordings under protection of an
access control technology. Circumventing such a technology to engage
in protected copying for the sake of parody would be illegal, thus
making what would otherwise be an acceptable fair use a wrongful act.
Moreover, it is not difficult to imagine that publishers would
exploit Judge Kaplan’s view of the DMCA in an effort to prevent
parody of their work. As has been successfully argued before this
court, “parody deserves protection precisely because makers of
an original work will be unwilling to license derivative uses that
damage the public reputation of originals through negative
criticism.” Leibovitz v. Paramount Pictures Corp., 137
F.3d 109, 115 n.3 (2d Cir. 1998). Copyright owners have been
unwilling to license their work if parody is the licensee’s
goal. In Campbell, the defendants showed that they were
willing to afford all credit of authorship in the original work to
Acuff-Rose, and were even willing to pay a licensing fee for use of
the sample 510 U.S. at 572. Nonetheless, Acuff-Rose refused to
license the sample in an attempt to prevent negative criticism of
their work. Id. Had Acuff-Rose been able to rely on Judge
Kaplan’s version of the DMCA, they would have ultimately been
successful in thwarting what the Supreme Court later recognized to be
a protected contribution to the arts.
Creating Valuable Indices and Search Tools
Scientists and artists are not the only ones adversely
affected by limitations placed on access to copyrighted material. A
DMCA that does not take fair uses into account precludes researchers
from using those materials in ways that are completely consistent
with copyright law. Take, for example, the case of a university
professor who purchases a digitized multi-volume index to a scholarly
work, which contains copyrighted abstracts of those works. Now
further imagine that the discs come bundled with search software that
allows the professor to access the copyrighted content of the disc,
which is otherwise not accessible because it is encrypted, but the
search software is limited in function. The professor wants to make
to extract a list of sources for a bibliography, which list would
contain fair use quotations from the copyrighted abstracts, but needs
to employ her own search methodology. Traditionally, she may do so
without fear of violating copyright law because such actions
constitute fair use. New York Times Co. v. Roxbury Data
Interface, Inc., 434 F.Supp. 217 (NJ 1977). If however, the data
is made inaccessible through technological measures such as
encryption, then the professor is prohibited from accessing the
underlying material without running afoul of the DMCA. The fact that
the researcher wants to engage in a perfectly legal activity does not
help her because she is prevented by the DMCA from accessing the
information to use it.
One can easily postulate other examples where the DMCA
prevents the creation of valuable indices. For example, suppose a
library purchases a database containing detailed information about
books in it collection. The database is encrypted, but the bundled
software allows librarians to search for items by author’s name,
book title, and subject matter. The library makes the database
available to the librarians so that they can assist patrons in
searching the collection. The library quickly recognizes that many
patrons look for books by authors without knowing the correct
spelling of the author’s name; this causes many searches to come
up empty and is frustrating to patrons. The library could easily
solve this problem by employing a phonetic search algorithm such as
the Soundex algorithm. The Soundex algorithm, first employed by the
U.S. Census Bureau at the turn of the last century, is a well-known
method for performing phonetic searches of names. The library could
create a second index; one that was organized phonetically. With
this new index, the library patron could successfully find books
authored by “Umberto Eco” even if the person entering the
search query misspelled the name as “Humberto Echo.” The
Soundex algorithm is robust enough to find matches so long as the
query is a reasonably good phonetic representation of the actual
name. Under copyright law, new indices that have a “potential
to save researchers a considerable amount of time and, thus,
facilitate the public interest in the dissemination of information,”
are favored and can be said to be a fair use of copyrighted material.
Id. at 221. Under the District Court’s interpretation
of the DMCA, however, the library cannot implement the Soundex
solution because, in our example, access to the data is protected by
technological measures.
Of course volumes could be written identifying many more
examples of existing or readily identified fair uses stifled under
the District Court’s interpretation of the DMCA. It is also
important, however, to note that digital technology is still
relatively young, and an overly broad interpretation of the DCMA
threatens not only existing examples, but also fair uses that are as
yet unimaginable. In other words, the District Court’s decision
not only cripples existing uses, but innovation in fair use.
2. Because it Deprives the Public of Valuable Fair
Uses, Judge Kaplan’s Interpretation of the DMCA is
Unconstitutional
A. The Constitution, Through the Fair Use Doctrine,
Places Limits on Monopolies Granted to Authors and Inventors.
i. The First Amendment
It is clear that the fair use doctrine operates as a
limitation on the rights of copyright holders. One source of this
limitation is the First Amendment to the U.S. Constitution. Indeed,
courts have used the fair use doctrine to resolve “[c]onflicts
between interests protected by the First Amendment and the copyright
laws.” Keep Thomson Governor Committee v Citizens for Gallen
Committee 457 F. Supp. 957, 960, 199 USPQ 788 (1978, DC
NH). As the District Court itself observed, fair use “has been
viewed by the courts as a safety valve that accommodates the
exclusive rights conferred by copyright with the freedom of
expression guaranteed by the First Amendment.” Universal
City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 321 (S.D.N.Y.
2000). The Supreme Court has stated that: “First Amendment
protections… [are] embodied in the Copyright Act’s
distinction between copyrightable expression and uncopyrightable
facts and ideas, and in the latitude for scholarship and comment
traditionally afforded by fair use.” Harper & Row v.
Nation Enterprises, 471 U.S. 539, 560 (1985).
ii. Article I, Section 8
A second and oft-cited justification for the fair use
doctrine comes from the limitations found in Article I, Section 8 of
the United States Constitution. See, e.g., Rosemont
Enterprises v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966)
While this clause allows Congress to grant monopolies to authors and
inventors, it does so under two enumerated conditions. First, the
monopoly must be for a limited time. U.S. Const. Art. I, § 8.
Second, the monopoly must be in furtherance of the promotion of “the
Progress of Science and useful Arts.” Id.
Indeed, this Court has conscientiously balanced the need for
copyright protection with these constitutional limitations, holding
that, “courts in passing upon particular claims of infringement
must occasionally subordinate the copyright holder's interest in a
maximum financial return to the greater public interest in the
development of art, science and industry.” Berlin v. E.C.
Publications Inc., 329 F.2d 541, 544 (2d Cir. 1964).
B. Constitutional Principles Require that Fair Use be
Available as a Defense to DMCA Violations.
The District Court rejected the Appellant’s fair
use defense on the grounds that Congress had provided no statutory
fair use defense for violations of section 1201 of the DMCA.
Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294,
322 (S.D.N.Y. 2000). Even if the District Court was correct in its
assertion that no such statutory authority existed, it was
nevertheless obligated to apply the fair use doctrine pursuant to
constitutional principles. More specifically, while Congress had
authority to enact the DMCA pursuant to an enumerated power (Article
I, Section 8), it could only do so pursuant to the limitations
established in that enumerated power. Thus, for example, Congress
could not grant to the authors (or inventors) of CSS perpetual
exclusive rights to their discovery because such a grant would
violate the enumerated power’s strict requirement that the
exclusive rights be granted for only a limited time. Likewise,
Congress could provide such exclusive protection to the Plaintiffs
only to the extent that such protection acts to promote the progress
of science and useful arts.
Because the Appellant raised a Fair Use Defense, the
Court was obligated to inquire whether, under the facts of this case,
the Appellee’s rights were subordinate to the public’s
interest in the development of art, science and industry.
Conclusion
In the diverse arenas of science, scholarship, and the
arts, to be governed by the District Court’s version of the DMCA
is to be stripped of the right to make the valuable fair uses of
copyrighted materials upon which new contributions to the field are
so often based. Had it recognized this and correctly applied the
fair use doctrine, the District Court would have had no alternative
but to hold that in this case the Plaintiffs’ rights in the CSS
technology are subordinate to the public’s interests in the
development of art, science, and scholarship. By failing to do so,
the District Court not only ran afoul of basic constitutional
principles, it seriously threatened scientific, academic and artistic
advancement. For these reasons, the District Court’s Judgment
must be reversed.
Dated: Austin, Texas
January 26, 2001
Respectfully submitted,
_______________________
Edward A. Cavazos
Texas Bar Number:00787223
Gavino Morin
Texas Bar Number: 00788077
Cavazos, Morin, Langenkamp & Ferraro L.L.P
9020-I Capital of Texas Highway, Suite 250
Austin, Texas 78759
(512) 340-1330
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. Pro. 29(d) and 32(a)(7)(B), the
undersigned certifies that this brief, exclusive of the exempted
portions, contains 4,428 words. The brief has been prepared in
proportionally spaced typeface using: Times New Roman, 14 point.
Dated:
January 26, 2001
_______________________
Edward A. Cavazos
CERTIFICATE OF SERVICE
I, Edward A. Cavazos, hereby certify that on this the
26th day of January, 2001, two correct copies of the Brief of Amici
Curiae were served via Federal Express, overnight delivery, upon
each of the following parties:
Martin Garbus, Esq.
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
Attorneys for Defendants-Appellants
Cindy A. Cohn, Esq.
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Attorneys for Defendants-Appellants
Leon P. Gold, Esq.
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036-8299
Attorneys for Plaintiffs-Appellees
On said date and by said manner, the original plus nine
(9) copies of said Brief will be delivered to the Clerk of the Court
for filing.
_______________________
Edward A. Cavazos
Footnotes
1
Affiliations are listed only to identify the amici, whose
views expressed herein do not necessarily coincide with those of
their respective universities or employers.
2
As one example, the Commissioner of the Texas
Education Agency has proposed a plan to replace all written
textbooks with e-books. A Phillips Brooks, Proposal: Replace
Textbooks with Computers, The Austin American-Statesman,
September 12, 1997, at B1.
3
Although the DMCA offers some exceptions for reverse engineering,
these exceptions are severely limited and offer protection only to
those seeking to achieve or enable interoperability of an
independently created program with other programs.
[end]
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