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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  16 personal website and a mailing list for developers of a Linux about DeCSS so they could develop a Linux-compatible DVD player. 53 Eric Corley, a defendant in the suit, was the publisher of magazine 2600: A Hacker Quarterly. Corley posted the DeCSS information on his website of 2600.com and provided links to other internet sites where the code for DeCSS was available. The major movie studio sent cease-and-desist letters to website operators who had the DeCSS information on their websites. 54 They also filed a suit against 2600.com and a couple of others. They filed a motion for preliminary injunction against 2600 on the argument that making the information available for downloading was a violation of the anti-trafficking ban of circumvention devices in section 1201 of DMCA. 55 They were able to obtain an injunction from the District Court for Southern District of New York that barred the defendants from posting DeCSS program on their websites. The defendants complied with the injunctions but Corley preserved a list of about 500 external links to DeCSS programs on the internet. 56 The plaintiffs sought and obtained an expanded preliminary injunction to prevent linking to DeCSS websites. 57 In November 2001, the Second Circuit affirmed the ruling of the District Court against the defendants. 58 Defendants did not seek relief from the Supreme Court. 59 The movie studios argue that the defendants’ actions made possible the easy piracy of their copyrighted works. Defendants argued that DeCSS was not designed for piracy but to help develop interoperability between DVD players and Linux. 60 The court stated as in the case of RealNetworks that the motivation of the developers of DeCSS is immaterial to the consideration of violation of the anti-trafficking provision of the DMCA. The court stated that “whether the development of a Linux DVD player motivated those who wrote DeCSS is immaterial to the question whether the defendants…violated the anti-trafficking provision of the DMCA.” 61 According to the court, section 1201 of DMCA is indifferent to actual use of the technology or 53 Id. 54 Id. at 312 55 MPAA Members’ Complaint in MPAA v. Reimerdes, Corley and Karza. Complaint for Violation of Provisions Governing Circumvention of Copyright Protection Systems, 17 U.S.C. 1201 et seq., Universal, available at http://www.eff.org/IP/MPAA_DVD_cases/20000114_ny_mpaa_complaint.html (visited on October 26, 2002) 56 Universal, 111 F. Supp. 2d. at 312-313. 57 Id. at 324 58 http://www.eff.org/IP/Video/MPAA_DVD_cases/20011128_ny_appeal_decision.html (visited on October 26, 2002) 59 http://www.eff.org/IP/Video/MPAA_DVD_cases/20020703_eff_2600_pr.html (visited on October 26, 2002) 60 Universal, 111 F. Supp. 2d. at 319 61 Id.

Authors: Abah, Adedayo.
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personal website and a mailing list for developers of a Linux about DeCSS so they could develop
a Linux-compatible DVD player.
53
Eric Corley, a defendant in the suit, was the publisher of magazine 2600: A Hacker
Quarterly. Corley posted the DeCSS information on his website of 2600.com and provided links
to other internet sites where the code for DeCSS was available. The major movie studio sent
cease-and-desist letters to website operators who had the DeCSS information on their websites.
54
They also filed a suit against 2600.com and a couple of others. They filed a motion for
preliminary injunction against 2600 on the argument that making the information available for
downloading was a violation of the anti-trafficking ban of circumvention devices in section 1201
of DMCA.
55
They were able to obtain an injunction from the District Court for Southern District
of New York that barred the defendants from posting DeCSS program on their websites. The
defendants complied with the injunctions but Corley preserved a list of about 500 external links
to DeCSS programs on the internet.
56
The plaintiffs sought and obtained an expanded
preliminary injunction to prevent linking to DeCSS websites.
57
In November 2001, the Second
Circuit affirmed the ruling of the District Court against the defendants.
58
Defendants did not seek
relief from the Supreme Court.
59
The movie studios argue that the defendants’ actions made possible the easy piracy of
their copyrighted works. Defendants argued that DeCSS was not designed for piracy but to help
develop interoperability between DVD players and Linux.
60
The court stated as in the case of
RealNetworks that the motivation of the developers of DeCSS is immaterial to the consideration
of violation of the anti-trafficking provision of the DMCA. The court stated that “whether the
development of a Linux DVD player motivated those who wrote DeCSS is immaterial to the
question whether the defendants…violated the anti-trafficking provision of the DMCA.”
61
According to the court, section 1201 of DMCA is indifferent to actual use of the technology or
53
Id.
54
Id. at 312
55
MPAA Members’ Complaint in MPAA v. Reimerdes, Corley and Karza. Complaint for Violation of Provisions
Governing Circumvention of Copyright Protection Systems, 17 U.S.C. 1201 et seq., Universal, available at
http://www.eff.org/IP/MPAA_DVD_cases/20000114_ny_mpaa_complaint.html
(visited on October 26, 2002)
56
Universal, 111 F. Supp. 2d. at 312-313.
57
Id. at 324
58
http://www.eff.org/IP/Video/MPAA_DVD_cases/20011128_ny_appeal_decision.html
(visited on October 26,
2002)
59
http://www.eff.org/IP/Video/MPAA_DVD_cases/20020703_eff_2600_pr.html
(visited on October 26, 2002)
60
Universal, 111 F. Supp. 2d. at 319
61
Id.


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