FC: MPAA's lead attorney replies to Politech post on DeCSS case

[Declan McCullagh <declan () well com>]

Recently I sent a note to Politech with my description of the oral 
arguments before the appeals court:
http://www.politechbot.com/p-01986.html

Attached below is a reply from Chuck Sims of Proskauer Rose, the lead 
attorney representing the Motion Picture Assocation of America in this 
litigation. Chuck didn't want his email address included, and I've agreed 
to remove it.

More on Proskauer Rose's filing yesterday, 2600's filing, and photographs:
http://www.politechbot.com/p-02083.html

-Declan

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Date: Thu, 03 May 2001 19:08:39 -0400
From: "Charles Sims"
To: declan () well com
Subject: Re: FC: U.S. government says DeCSS is terrorware
MIME-Version: 1.0

Declan:

Your comments on the arguments made by AUSA Dan Alter are unaccountably 
snide and inaccurate.  Alter's point, which is entirely correct, is that 
the arguments lodged by Corley's attorneys in this matter are so 
preposterously overbroad that they would require the invalidation of not 
only the DMCA but also any federal statutes barring the public distribution 
of harmful or unlawful devices or technologies via the Internet - whether 
circumvention devices or gambling paraphernalia or software to steal cable 
or satellite transmissions or computer viruses or "terrorware that could 
crash airplanes, disrupt hospital equipment and imperil human lives."

Before he decamped to represent the Mitchell estate in its fight against a 
first amendment/fair use claim, Martin Garbus argued - and so has his 
successor and the various amici supporting Corley - that every piece of 
software is speech protected by the most demanding first amendment tests 
known to the law, no matter the purpose of the regulation or its character, 
and therefore effectively immune from governmental regulation.  Corley's 
argument has been, if it's code, it's fully protected, and the fact that 
the code may also be functional is irrelevant, That's the argument  to 
which Alter was reponding.   As the Court noted, the argument is inaccurate 
and absurd, and contradicted by a wide range of caselaw.

To tell your readers that Alter said that DeCSS was as dangerous as 
"terrorware that could crash airplanes, disrupt hospital equipment and 
imperil human lives" is just bad reporting.  He didn't say it was the same 
as terrorware; he said that Corley's argumment  makes it legally the same, 
and would prevent Congress from barring terrorware or any other unlawful 
conduct or device so long as it was configured as software, and so the 
Court should reject that argument.

Mischaracterizing the very strong arguments against Corley and shielding 
your readers from the weakness of the arguments made in his defense doesn't 
advance the debate; doesn't inform your readers of what's at stake; 
deprives them of a point of view and analysis that might actually change 
some minds, or provoke some thought; and misportrays the strength of the 
position taken by creators and the creative community in the DVD 
litigation.  What is gained by failing to convey the weakness of the 
arguments made by the DMCA's opponents? 




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