Just Like Old Times in Berkeley
by Y. Peter Kang
1:50 p.m. Jul. 11, 2000 PDT
It looked like a nostalgic scene from the past, but a gathering of free
speech advocates and a
songwriter for the Grateful Dead, along with some conventional suits, were
looking toward the future.
Specifically, the Internet's impact on the First Amendment.
Thursday night, the Electronic Frontier Foundation sponsored a rally at
UC-Berkeley's Boalt Hall School of Law to garner support in defense of a
landmark court case involving the DVD-descrambling utility called DeCSS.
"We will either have a world where people will speak freely through songs
and films or we will have a world where very few industry powers will own
it and control it," Grateful Dead lyricist and EFF co-founder John Perry
Barlow told the standing-room only crowd.
The rally came on the eve of the trial that begins Monday in New York. The
trial pits the Motion Picture Association of America against the hacker
newsletter 2600, which has supported DeCSS by making it available for
The MPAA is suing 2600 under the Digital Millennium Copyright Act, which
prohibits the distribution of any technology that bypasses copy protection
The defendants are 2600 and its publisher, Eric Corley, aka Emmanuel
Goldstein. They are being defended by Martin Garbus.
The plaintiffs in the case are eight major film studios, including
Universal, Paramount, and Disney. They are suing to stop the publication of
and linking to DeCSS software, which breaks the encrypted code on DVDs.
So far, the movie studios have had the upper hand after winning a
preliminary injunction in January that forced Corley and 2600 to remove
DeCSS from its website.
"After I read the initial ruling I was depressed, it was as if the judge
didn't hear anything," cyberlaw and intellectual property professor Pamela
"We have a big education job ahead of us to make everyone realize the
implications of this case, so I think it's very profound."
Samuelson said she was "optimistic" about the defendants' chances in the
case, despite U.S. District Judge Lewis Kaplan's January ruling, and
believes that the real battle will be fought in the court of appeals.
"I don't hope for a lot from the trial judge," she said. "I think the
Second Circuit will take a closer look at ... the speech issue."
Samuelson discussed the ambiguous nature of the controversial DMCA, which
is at the heart of the plaintiffs' suit, and emphasized the free speech
aspect of the case.
While Samuelson addressed the legal implications, Barlow focused on the
bigger picture, expressing fears that the recent DVD and MP3 lawsuits will
result in a threat to artistic creativity and a "crippling" of the new
Sporting an all-black outfit, the former scrivener for the Dead was the
crowd favorite. Barlow mingled one-liners with serious comments about free
"The expression of the idea is something that we can all take credit for
and we can't let people lay claim to it. You cannot own free speech."
Barlow poked fun at Congress, in addition to chastising Al Gore as the
so-called "father of the Internet." "But I guess the Internet is based on
Al-Gore-rithms," Barlow quipped to a combination of groans and laughter
from the audience.
Barlow called for "fundamental change" in the current legislation that
deals with cyberspace. "There is an effort underway to see that the stuff
they own is not digitized. If it's not digitized, it will be lost. We have
an enormous responsibility to see that these works are not lost."
"If (artistic) creation is going to expand, we have to understand (that) we
have to fertilize creativity; that means fair use."
But Barlow thinks that legal complexities and fine print, in addition to
the roguish nature of the defendants, Corley and 2600, will prove to be
difficult in the trial.
"One of the problems that we have is dealing with a gray zone," he said,
referring to the lack of precedents and the legislation that is still in
Barlow agreed with Samuelson that the real battle will most likely be
fought in the court of appeals. "It will be much easier to win this case
on appeals, that's where it really counts," he said.
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