Yes, it's true. After numerous consultations with our legal team and all kinds of internal debate, we have decided that we've gotten the DeCSS case as far as we can. We won't be bringing it to the Supreme Court.
While we share the disappointment many of you will feel, we think it's very important to understand why this is the proper course of action. Our chances of the case being taken up by the Supreme Court were very slim. And it was the nearly unanimous opinion of all of the legal experts we consulted that the current Supreme Court wouldn't take our side. Either of these results could have caused a setback to the overall fight that we're engaged in. To continue would have meant putting our egos ahead of the best legal strategy, something we're not about to do.
The DeCSS case may have focused on us but it was about so much more. That's why we had to look at the bigger picture when making this decision. The MPAA and their cronies went out of their way to choose a defendant (us) that the court system would be prejudiced against. That's the one part of the case they got right. But what they didn't count on was the massive amount of support that came our way from all kinds of communities - support that continues to this day. In a way, the MPAA has brought a lot of us together. And that has made us stronger as a group.
While it's tempting to think of this as a defeat, we must look at the good that has come out of it. People the world over know all about the DMCA and are committed to overturning it. The amount of education that has occurred in the last two and a half years is simply phenomenal. There are many other combatants now in the fight and we have never been more convinced that we will ultimately prevail.
The war has not ended. Only the frontlines have changed. We are convinced that when all is said and done, this will be seen as the best strategy.
The Electronic Frontier Foundation has released the following statement:
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
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.