ACLU Urges Appeals Court to Protect Free Speech Rights In Landmark DVD Copyright Case

January 16, 2001 12:00 am

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NEW YORK–In a closely watched case that pits Hollywood’s control over its digital properties against free speech rights, the American Civil Liberties Union today filed a friend-of-the-court brief urging an appeals court to protect the longstanding balance between copyright law and the First Amendment.

“This case involves an unprecedented expansion of liability under copyright law,” said Ann Beeson, an attorney with the ACLU, which filed the case on behalf of itself and six other organizations including the American Library Association. “Our brief urges the appeals court to interpret copyright laws to accommodate free speech concerns.”

At issue is the distribution of software called DeCSS that allows users to bypass the security system of DVD movie disks. Last year, eight Hollywood movie studios sued Eric Corley, editor and publisher of a print and Web publication, for posting the software on his Web site and for linking to other Web sites that post it.

The movie studios claimed that Corley’s actions violated a provision of the Digital Millennium Copyright Act of 1998 (DMCA), which prohibits manufacturing or offering technology — such as DeCSS — that allows users to bypass measures that protect access to copyrighted works.

Corley argued that software like DeCSS should not be made illegal because it allows DVDs to be used in a variety of ways, some of which would traditionally be protected under “fair use” rules. The ACLU’s brief explains that the “fair use” doctrine has traditionally limited copyright liability by protecting the use of copyrighted works in criticism, parody, comment, news reporting, teaching and scholarship.

But under the District Court’s expansive ruling, “fair use” is abolished for technology like DeCSS. Thus, a film student who uses the decryption software to access a ten-minute clip of a movie for a class project would be liable under the new law, according to Beeson.

Remarkably, the court also imposed liability under the new copyright law for mere links on a Web site to another site containing DeCSS software. The ACLU’s brief argues that links are simply “digital footnotes.” Since a Web publisher has no control over the content on the linked site or the user’s decision to follow the link, liability for links violates the First Amendment.

The court’s interpretation also poses constitutional problems, the ACLU said, because people are held liable even if they have no connection to the person using the software and even though copyright law may not be infringed by a person’s use of a decrypted DVD.

Prior to the new law, these safeguards were required by courts before imposing liability on defendants who had not themselves committed copyright infringement.

Seeking to simplify a complicated issue, the ACLU brief illustrates its argument with three charts displaying the expansion of liability under the DMCA. The first chart shows liability to copyright holders before the statute was passed. The second chart shows that the District Court’s interpretation of the statute would dramatically expand liability without including free speech safeguards. The final chart illustrates an interpretation of the DMCA that accommodates the First Amendment.

The case is Universal Movie Studios, Inc. v. Eric Corley. ACLU lawyers in the case are Beeson and Senior Staff Attorney Christopher Hansen, working with volunteer attorneys Pamela Samuelson, a law professor at the University of California at Berkeley, Jessica Litman, a law professor at Wayne State University in Michigan, and Peter Jaszi, who teaches law at American University in Washington. The Electronic Frontier Foundation represents defendant Corley in the case.

ACLU clients in the case are the American Library Association, the Association of Research Libraries, Computer & Communications Industry Association, Electronic Privacy Information Center, Music Library Association and National Association of Independent Schools.

The ACLU’s brief in the case is online here.

Last year, the ACLU weighed in on the battle between giants in the record industry and the Internet service industry, urging a California district court to lift an injunction against the popular music-sharing site Napster. To read more about the case go to

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