UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION,

Plaintiffs,

-against-

ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and 2600 ENTERPRISES, INC.,

Defendants

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Case No.: 00 Civ. 0277 (LAK)


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PLEASE TAKE NOTICE that upon the annexed Affidavit of Charles R. Nesson, Esq., and the proposed brief amicus curiae annexed thereto, Charles R. Nesson shall move this Court, before the Honorable Lewis A. Kaplan, United States District Judge, at the United States Courthouse, 500 Pearl Street, New York, New York at a date and time to be determined by the Court, for leave to file the proposed brief amicus curiae.

Dated: New York, New York

May 10, 2000

___________________
Charles R. Nesson


TO: Leon P. Gold
William M. Hart
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attorneys for Plaintiffs
and


Martin Garbus
Frankfurt, Garbus, Klein & Selz, P.C.
488 Madison Avenue, New York, NY 10022
Attorneys for Defendants


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION,

Plaintiffs,

-against-

ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and 2600 ENTERPRISES, INC.,

Defendants

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Case No.: 00 Civ. 0277 (LAK)


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I, Charles R. Nesson, hereby declare:

I am the William F. Weld Professor of Law at Harvard Law School and Director of the Berkman Center for Internet & Society.

I submit this Declaration to provide the Court with a copy of the brief I propose to file as amicus curiae on behalf of defendants Eric Corley, a/k/a "Emmanuel Goldstein," and 2600 Enterprises, attached hereto as Exhibit A.

Pursuant to 28 U.S.C. 1746, I certify under penalty of perjury that the foregoing is true and correct.

Executed on May 10, 2000

___________________
Charles R. Nesson

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM CORPORATION,

Plaintiffs,

-against-

ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and 2600 ENTERPRISES, INC.,

Defendants

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Case No.: 00 Civ. 0277 (LAK)


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MEMORANDUM OF LAW OF PROFESSOR CHARLES R. NESSON
IN SUPPORT OF MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

Professor Charles Nesson respectfully submits this memorandum of law in support of his motion to for leave to file a brief amicus curiae in the above captioned matter.

Interests of Proposed Amicus

I submit that in this case of first impression, I may be able to help the Court to cut through the complex issues raised by the anticircumvention provision of the Digital Millennium Copyright Act. I am William F. Weld Professor of Law at Harvard Law School and Director of the Berkman Center for Internet & Society. I have no connection with any of the parties in this case. My interest in the matter stems from my role as an educator and my concern for the preservation of fair use rights in new media.

I frequently use multimedia in my teaching, adding audio and video to my classroom presentations to help tell the full story of a case or question. For example, in my Evidence class I use clips from "The Verdict" to illustrate closing argument, from "The Accused" to give a sense of the difficulty rape victims face on the witness stand, and from "My Cousin Vinny" to raise a variety of trial and ethical issues. Currently, I can assemble a series of selections from videotape to present at the time and in the order most effective for my lesson. I can store other segments on a computer for quick access if they become relevant to a discussion. If new works are made available only in DVD format, access controls such as those the studios seek to enforce here will prevent me from using such works as an effective teaching tool. I believe this is only one example among many fair uses that would be extinguished if plaintiffs’ reading of anticircumvention were adopted.

Argument

"Federal courts have discretion to permit participation of amici where such participation will not prejudice any party and may be of assistance to the court." Strougo v. Scudder, Stevens & Clark, Inc., 1997 WL 473566 (S.D.N.Y. Aug. 18, 1997) (citing Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Service Comm’n, 490 F.2d 387, 391 (2d Cir. 1973)). See also Zell/Merrill Lynch Real Estate Opportunity Partners Limited Partnership III v. Rockefeller Center Properties, Inc., 1996 WL 120672 (S.D.N.Y. March 19, 1996) (granting amicus leave to appear and argue, citing cases "uniform in support of a district court’s broad discretion to permit or deny amici appearances"); United States v. Gotti, 755 F.Supp. 1157, 1158 (E.D.N.Y 1991) (amici can "provide supplementary assistance to existing counsel and insur[e]a complete and plenary presentation of difficult issues so that the court may reach a proper decision").

Because this is a case of first impression in this Circuit, and one of the first cases across the country to interpret the Digital Millennium Copyright Act, it is particularly appropriate for the Court to hear from professors who have studied the law and its potential impact on their own teaching. With eight major motion picture studios against a media defendant, it is further clear that no party will be prejudiced by this submission.

Conclusion

For the foregoing reasons, I respectfully submit that the Court should grant leave to file the proposed brief amicus curiae.

Dated: May 10, 2000
Respectfully submitted,

___________________
Charles R. Nesson
THE BERKMAN CENTER FOR INTERNET & SOCIETY
AT HARVARD LAW SCHOOL
1563 Massachusetts Avenue,
Cambridge, Massachusetts 02138
(617) 495-7547