2600 loses DMCA appeal

[Greg Newby]

>From http://www.2600.com/news/display.shtml?id=852

2600 DMCA APPEAL LOST - FELTEN LAWSUIT THROWN OUT
Posted 28 Nov 2001 22:39:50 UTC

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

The text of the decision is now available and Judge Kaplan's decision
of August 2000 was upheld.

We will update this story as we continue to learn more. And we want to
thank everyone who has continued to support us in this long and
difficult battle.
...

The decision is linked at 
http://www.2600.com/news/112801-files/UniversalBrief_3.pdf


I've read through it (71 pages).  The Court of Appeals seems
to have done a thorough job of considering the arguments of
both sides.  They want to take a narrow interpretation of the
1st ammendment, in order to allow new developments of law
concerning electronic media to emerge.  

They were thoroughly convinced that computer code is speech,
whether in object form, source code or something else.  They
devoted many pages to defending this position.  But they
also distinguished the functional from the speech elements of
a run-able program (following Judge Kaplan), and believe that
the functional component, which essentially can break the law
without a user doing much other than running it, lessens
1st ammendment protection.  

Like Kaplan, they think providing a clickable hyperlink to download
a file on another site is the same as providing that file on
your site.

They don't seem to think that fair use implies any particular ability
to copy in a way the customer chooses - seeming to say that the
copyright owners can dictate what constitutes fair use.

I'm looking forward to seeing a more complete analysis by
someone with better credentials than I have...the above
are just a few things I noticed.

  -- gbn