A decision has come down in our DMCA appeal in the 2nd Circuit Court of Appeals. We lost.

An HTML version of the decision is now available. A much larger PDF version is also available. Judge Kaplan's original decision of August 2000 is also available here.

In the coming days we'll be conferring with our legal team to decide what the best strategy is at this point. We will keep you posted. And we want to thank everyone who has continued to support us in this long and difficult battle.

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In a separate case, the lawsuit filed by the Electronic Frontier Foundation and Professor Edward Felten against the Recording Industry Association of America was thrown out of court earlier Wednesday. This case was filed as a reaction to the threat issued against Felten by the RIAA after he found flaws in the SDMI watermarking scheme last year. As a result of the threat, an academic presentation on the flaws was cancelled. The lawsuit was an attempt to challenge the validity of such threats against academic research.

The following press release has just been issued by the EFF:

Electronic Frontier Foundation Media Release

For Immediate Release: November 28, 2001

Contacts:

Robin Gross
Intellectual Property Attorney
Electronic Frontier Foundation
robin@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

+1 415 436-9333

Judge Denies Scientists' Free Speech Rights

Electronic Frontier Foundation Argues Digital Music Case

Trenton, NJ - The Electronic Frontier Foundation (EFF) today represented a team led by Princeton Professor Ed Felten in the first skirmish of a case challenging the Digital Millennium Copyright Act (DMCA). Without addressing important First Amendment considerations and after less than 25 minutes of debate, a plainly hostile Judge Garrett Brown of the Federal District Court in Trenton, New Jersey, dismissed the case. EFF intends to appeal.

"This judge apparently believes that the fact that hundreds of scientists are currently afraid to publish their work and that scientific conferences are relocating overseas isn't a problem," noted Robin Gross, EFF Intellectual Property Attorney. "This decision is clearly contrary to settled First Amendment law, and we're confident that the 3rd Circuit Court will reverse it on appeal."

The court granted two separate motions to dismiss the case, one brought by the Department of Justice (DOJ) and the second by private defendants led by the Recording Industry Association of America (RIAA).

"Since the government and industry could not even agree on what the DMCA means, it is not surprising that scientists and researchers are deciding not to publish research for fear of prosecution under the DMCA," said EFF Legal Director Cindy Cohn. "Scientists should not have to ask permission from the entertainment industry before publishing their work."

Professor Felten and a team of researchers from Princeton University, Rice University, and Xerox discovered that digital watermark technology under development to protect music sold by the recording industry has significant security vulnerabilities. The recording industry, represented by the Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) Foundation, threatened to file suit in April 2001 if Felten and his team published their research at a conference. They subsequently issued a press release denying having threatened the researchers. On behalf of the research team, EFF then filed a lawsuit seeking a clear determination that publication and presentation of this and other related research is speech protected under the US Constitution both at this conference and at other conferences in the future.

Together with USENIX, an association of over 10,000 technologists that publishes such scientific research, Princeton Professor Edward Felten and his research team had asked the court to declare that they have a First Amendment right to discuss and publish their work, even if it may discuss weaknesses in the technological systems used to control digital music. The DMCA, passed in 1998, outlaws providing technology and information that can be used to gain access to a copyrighted work.

For all of the motions and declarations in the case: http://www.eff.org/sc/felten/