321 Studios: DMCA Unconstitutional

(Forwarded from DMCA Discussion list)

-------- Original Message --------
Subject: [DMCA_Discuss]321 Studios Files Appeals and Emergency Stay Requests
in Californiaand New York
Date: Fri, 2 Apr 2004 12:37:38 +0400
From: Vladimir Katalov <[email protected]>
Reply-To: Vladimir Katalov <[email protected]>
Organization: ElcomSoft Co.Ltd.
To: [email protected]


321 Studios Files Appeals and Emergency Stay Requests in California and New
York
Thursday April 1, 10:46 am ET 

http://biz.yahoo.com/prnews/040401/cgth025_1.html

ST. LOUIS, April 1 /PRNewswire/ -- 321 Studios has filed appeals and
emergency stay requests to both the United States Court of Appeals for
the Ninth Circuit and the United States Court of Appeals for the
Second Circuit. In both cases, 321 Studios makes the following
arguments, among others:
 
-- DMCA is unconstitutional

If, as both Courts ruled, the Digital Millennium Copyright Act (DMCA)
allows consumers to copy DVDs based on fair use grounds but denies the
tools to do so, then the DMCA is unconstitutional as fair use rights
are constitutionally mandated. Even New York Judge Richard Owen
acknowledged at a March 15, 2004 hearing that if the DMCA effectively
denies consumers the tools to exercise their fair use rights, then 321
has "a beauty there."
       
-- New York injunction violates free speech

321 argues that the Southern District Court of New York, in styling
its preliminary injunction, imposed an unlawful prior restraint on 321
Studios' free speech rights by prohibiting 321 from speaking out about
its products or dealing with customers in jurisdictions where no DMCA-
like law is applicable.

-- Both courts ignored Chamberlain

Both district court opinions are inconsistent with Chamberlain Group,
Inc., v. Skylink, where another district court concluded that the
Digital Millennium Copyright Act (DMCA) did not prohibit the sale of a
universal garage-door-opener remote control, even though the remote
bypassed encryption. The Chamberlain Court upheld the garage owner's
right to open his own garage door, and 321 similarly argues that
lawful purchasers of DVDs have the inherent right to unlock their
DVD's encryption to access the DVD's contents.

-- DMCA unlawfully extends copyright protection

The opinions also sanction the CSS-encryption scheme by the Studios
even when public domain films and works of the U.S. Government are
involved. In effect, the rulings deny consumers the tools to make
digital copies of DVDs, thus preventing access to and copying of
public domain films and government works, all in violation of the
"limited times" provision of the Copyright Clause of the U.S.
Constitution.

-- The balance of harm is in 321's favor

The harm that 321 and its customers are suffering under the
injunctions issued by the California and New York district courts
dwarfs any harm the Studios might incur should the Courts of Appeal
grant stays. In fact, the threat of harm was so inconsequential to
Paramount and Fox that those Studios waited 18 months before filing
their case.

The next step in the Second Circuit case will be a hearing on a motion
for stay on April 13. Thereafter, the Second Circuit will set a
schedule for briefing and argument on the merits of the case.

The Ninth Circuit motion for stay is ripe for ruling without a public
hearing. The briefing schedule will begin with opening briefs on June
18. 321 Studios' legal filings are available in the press section of
the company's website, www.321studios.com .

About 321 Studios

321 Studios provides software tools to help consumers protect their
investment in digital media, and is the leading provider of DVD
backup, recovery, and creation software. Founded in 2001, 321 Studios'
premier DVD backup title, DVDXCOPY PLATINUM (no longer available), is
one of PC Magazine's 'Best Products of 2003'. The company is privately
headquartered in St. Louis, Missouri, with distributors and sales
offices throughout Asia-Pacific, Europe, and the United States. For
more information, please visit www.321studios.com .

     Press Contact: Julia Bishop-Cross
                    (636) 720-3925
                    [email protected]

_______________________________________________


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