United States Court of Appeals,
Second Circuit.
UNIVERSAL CITY STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-
Mayer Studios Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc.,
Time Warner Entertainment Company, L.P., Disney Enterprises Inc., Twentieth
Century Fox Film Corporation, Plaintiffs-Appellees,
v.
Eric CORLEY, also known as Emmanuel Goldstein, and 2600 Enterprises Inc.,
Defendants-Appellants,
United States of America, Intervenor.
Docket No. 00-9185.
Argued: May 1, 2001
Finally Submitted: May 30, 2001
Decided: Nov. 28, 2001
Motion picture studios brought action under
Digital Millennium Copyright Act (DMCA)
to enjoin Internet web site owners from posting for downloading computer
software that decrypted digitally encrypted movies on digital versatile disks
(DVDs) and from including hyperlinks to other web sites that made decryption software available. The United States District
Court for the Southern District of New York, Lewis
A. Kaplan, J., granted injunction on behalf of studios,
111 F.Supp.2d 294, and 111
F.Supp.2d 346. Web site owners appealed. The
Court of Appeals, Jon
O. Newman, Circuit Judge, held that: (1) software
program qualified as "speech" for First Amendment purposes; (2)
computer code combined nonspeech and speech elements; (3) injunction was
content neutral restriction on owners' speech; (4) injunction did not burden
substantially more speech than necessary to further government's interest; and
(5) injunction did not unconstitutionally eliminate owners' "fair
use" of copyrighted materials.
Affirmed.
West Headnotes
[1] Copyrights and Intellectual Property 
67.3
Digital
Millennium Copyright Act (DMCA) targets the circumvention of digital walls
guarding copyrighted material, and trafficking in circumvention tools, but does
not concern itself with the use of those materials after circumvention has
occurred. 17
U.S.C.A. § 1201 et seq.
[2] Copyrights and Intellectual Property 67.3
Digital
Millennium Copyright Act (DMCA) does not prohibit the "fair use" of
information just because that information was obtained in a manner made illegal
by the DMCA. 17
U.S.C.A. § 1201(c)(1).
[3] Copyrights and Intellectual Property 67.3
Copyright
law that prohibits circumvention of protection systems frees an individual to
traffic in encryption technology designed or marketed to circumvent an
encryption measure if the owner of the material protected by the encryption
measure authorizes that circumvention. 17
U.S.C.A. § 1201(a)(3)(A).
[4] Copyrights and Intellectual Property 67.3
Those
persons who "decrypt" an encrypted digital versatile disk (DVD) with
the authority of a copyright owner are
exempted from liability under the Digital Millennium Copyright Act (DMCA); however, authority to "view" a DVD
does not create a right to decrypt a DVD.
17
U.S.C.A. § 1201(a)(3)(A).
[5] Federal Courts 915
Internet
web site owners waived their opportunity to argue on appeal that Digital
Millennium Copyright Act (DMCA) exceeded the constitutional authority of
Congress to grant authors copyrights for a limited time, on basis that it
empowered copyright owners to effectively secure perpetual protection by mixing
public domain works with copyrighted materials, locking up both with
technological protection measures;
although issue was adequately addressed in amicus brief, web site owners,
as appealing party and having been represented by counsel, only addressed issue
in footnote. U.S.C.A.
Const. Art. 1, § 8, cl. 8; 17
U.S.C.A. § 1201 et seq.
[6] Federal Courts 714
Arguments
presented to the Court of Appeals only in a footnote are not entitled to appellate consideration.
[7] Amicus Curiae 3
Although
an amicus brief can be helpful in elaborating issues properly presented by the
parties, it is normally not a method for injecting new issues into an appeal,
at least in cases where the parties are competently represented by counsel.
[8] Constitutional Law 2147
(Formerly 92k90.1(1))
In the
context of the First Amendment, communication does not lose constitutional
protection as "speech" simply because it is expressed in the language
of computer code. U.S.C.A.
Const.Amend. 1.
[9] Constitutional Law 1810
(Formerly 92k90.1(1))
"Orders" from one member of a
conspiracy to another member, or from a superior to a subordinate, might
resemble instructions but nonetheless warrant less or even no First Amendment
protection because their capacity to inform is meager, and because it is unlikely
that the recipient of the order will engage in the "intercession of mind
or will" characteristic of the sort of communication between two parties
protected by the Constitution. U.S.C.A.
Const.Amend. 1.
[10] Constitutional Law 1490
(Formerly 92k90(1))
In the
context of the First Amendment, protected speech may communicate, among other
things, ideas, emotions, or thoughts. U.S.C.A.
Const.Amend. 1.
[11] Constitutional Law 2147
(Formerly 92k90.1(1))
Computer
programs are not exempted from the category of First Amendment speech simply because their instructions require use of
a computer; the fact that a program has the capacity to direct the functioning
of a computer does not mean that it lacks the additional capacity to convey
information, and it is the conveying of information that renders instructions
"speech" for purposes of the First Amendment. U.S.C.A.
Const.Amend. 1.
[12] Constitutional Law 2147
(Formerly 92k90.1(1))
Software
programs qualify as "speech" for First Amendment purposes even though
they instruct computers.
[13] Constitutional Law 1517
(Formerly 92k90(3))
In the
context of the First Amendment, the scope of protection for speech generally
depends on whether the restriction is imposed because of the content of the
speech. U.S.C.A.
Const.Amend. 1.
[14]
Constitutional Law 1518
(Formerly 92k90(3))
In the
context of the First Amendment, content based restrictions on speech are
permissible only if they serve compelling state interests and do so by the
least restrictive means available. U.S.C.A.
Const.Amend. 1.
[15] Constitutional Law 1514
(Formerly 92k90(3))
In the
context of the First Amendment, a content neutral restriction is permissible if
it serves a substantial governmental interest, the interest is unrelated to the
suppression of free expression, and the regulation is narrowly tailored, which
in this context requires that the means chosen may not burden substantially
more speech than is necessary to further the government's legitimate
interests. U.S.C.A.
Const.Amend. 1.
[16]
Constitutional Law 1512
(Formerly 92k90(3))
In the
context of the First Amendment, government regulation of expressive activity is
"content neutral" if it is justified without reference to the content
of regulated speech. U.S.C.A.
Const.Amend. 1.
[17] Constitutional Law 1512
(Formerly 92k90(3))
In the
context of the First Amendment, the government's purpose for regulating
expressive activity is the controlling consideration of whether a regulation is
content neutral; a regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others. U.S.C.A.
Const.Amend. 1.
[18] Constitutional Law 2147
(Formerly 92k90.1(1))
To determine whether regulation of
computer code is content neutral, the initial inquiry must be whether the
regulated activity is sufficiently imbued with elements of communication to
fall within the scope of the First Amendment; once a speech component is
identified in the computer code, the inquiry then proceeds to whether the
regulation is justified without reference to the content of regulated
speech. U.S.C.A.
Const.Amend. 1.
[19] Constitutional Law 2147
(Formerly 92k90.1(1))
For the
purpose of First Amendment analysis, computer code combines nonspeech and
speech elements, i.e., functional and expressive elements. U.S.C.A.
Const.Amend. 1.
[20] Constitutional Law 2151
(Formerly 92k90.1(9))
Injunction
that prevented Internet web site owner from posting decryption code on its web site was content neutral restriction
on owners' speech, in lawsuit brought by motion picture studios under Digital
Millennium Copyright Act (DMCA); neither DMCA nor posting prohibition was
concerned with whatever capacity decryption code had for conveying information
to a human being, instead, DMCA and posting prohibition were applied to
decryption code solely because of its capacity to instruct a computer to
decrypt a digital versatile disks (DVD) without any "intercession of mind
or will" of a person. U.S.C.A.
Const.Amend. 1; 17
U.S.C.A. § 1201 et seq.
[21] Copyrights and Intellectual Property 85
Injunction
that prohibited Internet web site owners from posting decryption code on web
site did not burden substantially more speech than necessary to further
government's interest in preventing unauthorized access to copyrighted
materials, in lawsuit brought by motion picture studios under Digital
Millennium Copyright Act (DMCA);
although injunction prevented owners from conveying to other persons the
speech component of decryption code, owners did not establish that any other
technique was available that would have provided a lesser restriction on code's
speech component and yet have barred owners from making instantaneous worldwide
distribution of the code. U.S.C.A. Const.Amend.
1; 17
U.S.C.A. § 1201 et seq.
[22] Constitutional Law 1514
(Formerly 92k90(3))
In the
context of the First Amendment, a content neutral regulation, with an
incidental effect on speech component, must serve a substantial governmental
interest, the interest must be unrelated to the suppression of free expression,
and the incidental restriction on speech must not burden substantially more
speech than is necessary to further that interest. U.S.C.A.
Const.Amend. 1.
[23] Constitutional Law 1514
(Formerly 92k90(3))
In the
context of the First Amendment, a content neutral regulation need not employ
the least restrictive means of accomplishing the governmental objective; it
need only avoid burdening substantially more speech than is necessary to further the government's legitimate
interests. U.S.C.A.
Const.Amend. 1.
[24] Constitutional Law 2151
(Formerly 92k90.1(9))
[24]
Copyrights and Intellectual Property 85
Injunction,
which prevented Internet web site owners from providing hyperlinks to other web
sites that posted decryption code, was unrelated to suppression of free
expression, in lawsuit brought by motion picture studios under Digital
Millennium Copyright Act (DMCA); although hyperlink had speech component,
linking prohibition applied whether or not the hyperlink contained any
information, comprehensible to a human being, as to Internet address of web
page accessed. U.S.C.A.
Const.Amend. 1; 17
U.S.C.A. § 1201 et seq.
[25] Copyrights and Intellectual Property 85
Injunction
under Digital Millennium Copyright Act (DMCA), that barred Internet web site owner from trafficking in decryption
code that enabled unauthorized access to copyrighted materials, did not
unconstitutionally eliminate owners' "fair use" of copyrighted
materials; owners did not claim to be
making fair use of any copyrighted materials and nothing in injunction
prohibits them from making such fair use, and owners failed to establish that
anti-trafficking provisions of DMCA prevented other persons from copying
portions of DVD movies in order to make fair use of them. U.S.C.A.
Const. Art. 1, § 8, cl. 8; 17
U.S.C.A. § 1201 et seq.
[26] Copyrights and Intellectual Property 53.2
Supreme
Court has never held that fair use is constitutionally required under the
copyright clause. U.S.C.A.
Const. Art. 1, § 8, cl. 8.
[27] Copyrights and Intellectual Property 53.2
Fair use
has never been held to be a guarantee of access to copyrighted material in
order to copy it by the fair user's preferred technique or in the format of the
original. U.S.C.A.
Const. Art. 1, § 8, cl. 8.
[28] Copyrights and Intellectual Property 67.1
Digital
Millennium Copyright Act (DMCA) does not impose a limitation on the opportunity
of any person to make a variety of traditional fair uses of digital versatile
disk (DVD) movies, such as commenting on their content, quoting excerpts from
their screenplays, and even recording portions of the video images and sounds
on film or tape by pointing a camera, a camcorder, or a microphone at a monitor
as it displays the DVD movie; the fact
that the resulting copy will not be as perfect or as manipulable as a digital
copy obtained by having direct access to the DVD movie in its digital form,
provides no basis for a claim of unconstitutional limitation of fair use. U.S.C.A.
Const. Art. 1, § 8, cl. 8; 17
U.S.C.A. § 1201 et seq.
*433 Kathleen
Sullivan, Stanford, Cal. (Martin
Garbus, Edward
Hernstadt, Frankfurt Garbus Kurnit Klein &
Selz, New York, N.Y.; Cindy
A. Cohn, Lee
Tien, Robin Gross, Elec. Frontier Found., San
Francisco, Cal., on the brief), for Defendants-Appellants.
Charles
S. Sims, New York, N.Y. (Leon
P. Gold, Jon
A. Baumgarten,
Carla
M. Miller, Matthew
J. Morris, Proskauer Rose, New York, N.Y., on the
brief), for Plaintiffs-Appellees.
Daniel
S. Alter, Asst. U.S. Atty., New York, N.Y. (Mary
Jo White, U.S. Atty., Marla
Alhadeff, Asst. U.S. Atty., New York, N.Y., on
the brief), for Intervenor United States of America.
(Prof. Peter Jazsi, Wash. College of Law,
American Univ., Wash., D.C.; Prof.
Jessica Litman, Wayne State Univ., Detroit, Mich.; Prof. Pamela Samuelson, Univ. of Cal. at
Berkeley, Berkeley, Cal.; Ann Beeson,
Christopher Hansen, American Civil Liberties Union Foundation, New York, N.Y.,
submitted a brief in support of Defendants-Appellants, for amici curiae
American Civil Liberties Union et al.).
(Andrew
Grosso, Wash., D.C., submitted a brief in support
of Defendants-Appellants for amicus curiae ACM Committee on Law and Computing
Technology).
(James
S. Tyre, Culver City, Cal., submitted a brief in
support of Defendants-Appellants, for amici curiae Dr. Harold Abelson et al.).
(Edward
A. Cavazos, Gavino
Morin, Cavazos, Morin, Langenkamp & Ferraro,
Austin, Tex., submitted a brief in support of Defendants-Appellants, for amici
curiae Ernest Miller et al.).
(Arnold G. Reinhold, Cambridge, Mass.,
submitted a brief amicus curiae in support of Defendant-Appellant 2600
Enterprises, Inc.).
*434 (Prof. Julie E. Cohen, Georgetown
Univ. Law Center, Wash., D.C., submitted a brief in support of
Defendants-Appellants, for amici curiae intellectual property law professors).
(Jennifer
S. Granick, Stanford, Cal., submitted a brief in
support of Defendants-Appellants, for amici curiae Dr. Steven Bellovin et al.).
(Prof. Yochai
Benkler, N.Y. Univ. School of Law, New York,
N.Y.; Prof. Lawrence Lessig, Stanford
Law School, Stanford, Cal., submitted a brief amici curiae in support of
Defendants-Appellants).
(David A. Greene, First Amendment Project,
Oakland, Cal.; Jane E. Kirtley, Erik F.
Ugland, Silha Center for the Study of Media Ethics and Law, Univ. of Minn.,
Minneapolis, Minn.; Milton
Thurm, Thurm & Heller, New York, N.Y.,
submitted a brief in support of Defendants-Appellants, for amici curiae Online
News Ass'n et al.).
(Prof. Rodney
A. Smolla, Univ. of Richmond School of Law,
Richmond Va., submitted a brief in support of Plaintiffs-Appellees, for amici
curiae Prof. Erwin Chemerinsky et al.).
(David
E. Kendall, Paul
B. Gaffney, Williams & Connolly, Wash.,
D.C.; David
M. Proper, National Football League and NFL
Properties, New York, N.Y.; Thomas
J. Ostertag, Office of the Commissioner of
Baseball, New York, N.Y., submitted a brief in support of Plaintiff-Appellees,
for amici curiae Recording Ind. Ass'n of Am. et al.).
(Jeffrey
L. Kessler, Robert
G. Sugarman, Geoffrey
D. Berman, Weil, Gotshal & Manges LLP, New
York, N.Y., submitted a brief in support of Plaintiffs-Appellees, for amicus
curiae DVD Copy Control Ass'n, Inc.).
Before:
NEWMAN and CABRANES, Circuit Judges, and THOMPSON, [FN*] District Judge.
FN* Honorable Alvin
W. Thompson, United States District Court for the District of Connecticut,
sitting by designation.
JON
O. NEWMAN, Circuit Judge.
When the Framers of the First Amendment
prohibited Congress from making any law "abridging the freedom of
speech," they were not thinking about computers, computer programs, or the
Internet. But neither were they
thinking about radio, television, or movies.
Just as the inventions at the beginning and middle of the 20th century
presented new First Amendment issues, so does the cyber revolution at the end
of that century. This appeal raises
significant First Amendment issues concerning one aspect of computer
technology--encryption to protect materials in digital form from unauthorized
access. The appeal challenges the
constitutionality of the Digital Millennium Copyright Act ("DMCA"), 17
U.S.C. § 1201 et seq. (Supp. V 1999) and the validity of an injunction entered
to enforce the DMCA.
Defendant-Appellant Eric C. Corley and his
company, 2600 Enterprises, Inc., (collectively "Corley," "the
Defendants," or "the Appellants") appeal from the amended final
judgment of the United States District Court for the Southern District of New
York (Lewis A. Kaplan, District Judge), entered August 23, 2000, enjoining them
from various actions concerning a decryption program known as
"DeCSS." Universal
City Studios, Inc. v. Reimerdes,
111 F.Supp.2d 346 (S.D.N.Y.2000) ("Universal
II"). The injunction primarily
bars the Appellants from posting DeCSS on *435 their web site and from
knowingly linking their web site to any other web site on which DeCSS is
posted. Id. at 346-47. We affirm.
Introduction
Understanding the pending appeal and the
issues it raises requires some familiarity with technical aspects of computers
and computer software, especially software called "digital versatile
disks" or "DVDs," which are optical media storage devices
currently designed to contain movies. [FN1] Those lacking such familiarity will be greatly aided by
reading Judge Kaplan's extremely lucid opinion, Universal
City Studios, Inc. v. Reimerdes,
111 F.Supp.2d 294 (S.D.N.Y.2000) ("Universal
I"), beginning with his helpful section "The Vocabulary of this
Case," id.
at 305-09.
FN1. DVDs are similar
to compact disks (CDs), but differ, among other things, in that they hold far
more data. For detailed information concerning DVDs and CDs, see "Fast
Guide to CD/DVD" at http://
searchWindowsManageability.techtarget.co/sDefinition/0,,si d_gci514667,00.html
(last updated Aug. 3, 2001).
This appeal concerns the anti-trafficking
provisions of the DMCA, which Congress enacted in 1998 to strengthen copyright
protection in the digital age. Fearful
that the ease with which pirates could copy and distribute a copyrightable work
in digital form was overwhelming the capacity of conventional copyright
enforcement to find and enjoin unlawfully copied material, Congress sought to
combat copyright piracy in its earlier stages, before the work was even copied. The DMCA therefore backed with legal
sanctions the efforts of copyright owners to protect their works from piracy
behind digital walls such as encryption codes or password protections. In so doing, Congress targeted not only
those pirates who would circumvent these digital walls (the
"anti-circumvention provisions," contained in 17
U.S.C. § 1201(a)(1)), but also anyone who would traffic in a technology
primarily designed to circumvent a digital wall (the "anti-trafficking
provisions," contained in 17
U.S.C. § 1201(a)(2), (b)(1)).
Corley publishes a print magazine and
maintains an affiliated web site geared towards "hackers," a
digital-era term often applied to those interested in techniques for
circumventing protections of computers and computer data from unauthorized access. The so-called hacker community includes
serious computer-science scholars conducting research on protection techniques,
computer buffs intrigued by the challenge of trying to circumvent access-limiting
devices or perhaps hoping to promote security by exposing flaws in protection
techniques, mischief-makers interested in disrupting computer operations, and
thieves, including copyright infringers who want to acquire copyrighted
material (for personal use or resale) without paying for it.
In November 1999, Corley posted a copy of the
decryption computer program
"DeCSS" on his web site, http://www.2600.com
("2600.com"). [FN2] DeCSS is designed
to circumvent "CSS," the encryption *436 technology that
motion picture studios place on DVDs to prevent the unauthorized viewing and
copying of motion pictures. Corley also
posted on his web site links to other web sites where DeCSS could be found.
FN2. "2600"
has special significance to the hacker community. It is the hertz frequency ("a unit of
frequency of a periodic process equal to one cycle per second," Webster's
Third New International Dictionary 1061 (1993)) of a signal that some hackers
formerly used to explore the entire telephone system from "operator
mode," which was triggered by the transmission of a 2600 hertz tone across
a telephone line, Trial Tr. at 786-87, or to place telephone calls without
incurring long-distance toll charges, United
States v. Brady,
820 F.Supp. 1346, 1355 & n. 18 (D.Utah 1993). One such user reportedly discovered that the
sound of a toy whistle from a box of Cap'n Crunch cereal matched the telephone
company's 2600 hertz tone perfectly. Id.
at 1355 n. 18.
Plaintiffs-Appellees are eight motion picture
studios that brought an action in the Southern District of New York seeking
injunctive relief against Corley under the DMCA. Following a full non-jury
trial, the District Court entered a permanent injunction barring Corley from
posting DeCSS on his web site or from knowingly linking via a hyperlink to any
other web site containing DeCSS. Universal
II,
111 F.Supp.2d at 346-47. The District Court rejected Corley's
constitutional attacks on the statute and the injunction. Universal
I,
111 F.Supp.2d at 325-45.
Corley renews his constitutional challenges on
appeal. Specifically, he argues
primarily that: (1) the DMCA oversteps
limits in the Copyright Clause on the duration of copyright protection; (2) the DMCA as applied to his dissemination
of DeCSS violates the First Amendment because computer code is
"speech" entitled to full First Amendment protection and the DMCA
fails to survive the exacting scrutiny accorded statutes that regulate
"speech"; and (3) the DMCA
violates the First Amendment and the Copyright Clause by unduly obstructing the
"fair use" of copyrighted materials.
Corley also argues that the statute
is susceptible to, and should therefore be given, a narrow interpretation that
avoids alleged constitutional objections.
Background
For decades, motion picture studios have made
movies available for viewing at home in what is called "analog"
format. Movies in this format are
placed on videotapes, which can be played on a video cassette recorder
("VCR"). In the early 1990s,
the studios began to consider the possibility of distributing movies in digital
form as well. Movies in digital form
are placed on disks, known as DVDs, which can be played on a DVD player (either
a stand-alone device or a component of a computer). DVDs offer advantages over analog tapes,
such as improved visual and audio quality, larger data capacity, and greater
durability. However, the improved
quality of a movie in a digital format brings with it the risk that a virtually
perfect copy, i.e., one that will not lose perceptible quality in the
copying process, can be readily made at the click of a computer control and
instantly distributed to countless recipients throughout the world over the
Internet. This case arises out of the
movie industry's efforts to respond to this risk by invoking the
anti-trafficking provisions of the DMCA.
I. CSS
The movie studios were reluctant to release movies
in digital form until they were confident they had in place adequate safeguards
against piracy of their copyrighted
movies. The studios took several steps
to minimize the piracy threat. First,
they settled on the DVD as the standard digital medium for home distribution of
movies. The studios then sought an
encryption scheme to protect movies on DVDs. They enlisted the help of members
of the consumer electronics and computer industries, who in mid-1996 developed
the Content Scramble System ("CSS").
CSS is an encryption scheme that employs an algorithm configured by a
set of "keys" to encrypt a DVD's contents. The algorithm is a type of mathematical
formula for transforming the contents of the movie file into gibberish; the "keys" are in actuality strings
of 0's and 1's that serve as values for the mathematical formula. *437 Decryption in the case of CSS
requires a set of "player keys" contained in compliant DVD players,
as well as an understanding of the CSS encryption algorithm. Without the player keys and the algorithm, a
DVD player cannot access the contents of a DVD. With the player keys and the
algorithm, a DVD player can display the movie on a television or a computer
screen, but does not give a viewer the ability to use the copy function of the
computer to copy the movie or to manipulate the digital content of the DVD.
The studios developed a licensing scheme for
distributing the technology to manufacturers of DVD players. Player keys and other information necessary
to the CSS scheme were given to manufacturers of DVD players for an
administrative fee. In exchange for the
licenses, manufacturers were obliged to keep the player keys confidential. Manufacturers were also required in the
licensing agreement to prevent the transmission of "CSS data" (a term
undefined in the licensing agreement) from a DVD drive to any "internal
recording device," including, presumably, a computer hard drive.
With encryption technology and licensing
agreements in hand, the studios began releasing movies on DVDs in 1997, and
DVDs quickly gained in popularity, becoming a significant source of studio
revenue. [FN3] In 1998, the studios secured added protection
against DVD piracy when Congress passed the DMCA, which prohibits the
development or use of technology designed to circumvent a technological
protection measure, such as CSS. The pertinent provisions of the DMCA are
examined in greater detail below.
FN3. By the end of
1997, most if not all DVDs that were released were encrypted with CSS. Trial
Tr. at 409; Universal
I,
111 F.Supp.2d at 310. Moreover, DVD players were projected to be in
ten percent of United States homes by the end of 2000. Trial Tr. at 442; Universal
I,
111 F.Supp.2d at 310. In fact, as of 2000, about thirty-five
percent of one studio's worldwide revenues from movie distribution was
attributable to DVD sales and rentals.
Trial Tr. at 403; Universal
I,
111 F.Supp.2d at 310 n. 69.
In September 1999, Jon Johansen, a Norwegian
teenager, collaborating with two unidentified individuals he met on the
Internet, reverse-engineered a licensed DVD player designed to operate on the
Microsoft operating system, and culled from it the player keys and other
information necessary to decrypt CSS. The record suggests that Johansen was
trying to develop a DVD player operable on Linux, an alternative operating
system that did not support any licensed DVD players at that time. In order to accomplish this task, Johansen
wrote a decryption program executable on Microsoft's operating system. [FN4] That program was called, appropriately
enough, "DeCSS."
FN4. An operating
system works with the computer to perform the application's instructions. Generally, an executable application can be
played only on the operating system for which it is designed, although
interoperability has been improving. At
the time of the trial, DeCSS could be run only on the Microsoft Windows
operating system. Trial Tr. at 245
(Testimony of Robert W. Schumann).
If a user runs the DeCSS program (for example,
by clicking on the DeCSS icon on a Microsoft operating system platform) with a
DVD in the computer's disk drive, DeCSS will decrypt the DVD's CSS protection,
allowing the user to copy the DVD's files
and place the copy on the user's hard drive.
The result is a very large computer file that can be played on a
non-CSS-compliant player and copied, manipulated, and transferred *438
just like any other computer file. [FN5] DeCSS comes
complete with a fairly user-friendly interface that helps the user select from
among the DVD's files and assign the decrypted file a location on the user's
hard drive. The quality of the
resulting decrypted movie is "virtually identical" to that of the
encrypted movie on the DVD. Universal
I,
111 F.Supp.2d at 308, 313. And the file produced by DeCSS, while large,
can be compressed to a manageable size by a compression software called
"DivX," available at no cost on the Internet. This compressed file can be copied onto a
DVD, or transferred over the Internet (with some patience). [FN6]
FN5. An item of some
controversy, both in this litigation and elsewhere, is the extent to which
CSS-encrypted DVDs can be copied even without DeCSS. The record leaves largely unclear how CSS
protects against the copying of a DVD, as contrasted with the playing
of a DVD on an unlicensed player.
The Defendants' experts insisted that there is nothing about the way CSS
operates that prevents the copying of a DVD. Declaration of Frank Stevenson
¶ 23 ("Bit-for-bit copying, which
precisely duplicates the content of one DVD to another, results in a
fully-playable product."); Trial Tr. at
751 (Testimony of Professor Edward Felten) (CSS "could [not] have
prevented the encrypted content from being copied to somewhere
else"); Deposition of Barbara
Simons at 48-49, 77. Some of the
Plaintiffs' experts countered simply that "copying to a hard drive is
something that compliant DVD players are not allowed to do," without
explaining why. Trial Tr. at 37
(Testimony of Dr. Michael I. Shamos); see also Deposition of John J. Hoy
at 347-48; Deposition of Fritz Attaway
at 83. Another expert indicated that
while a DVD movie can be copied to a computer's hard drive in encrypted form,
the movie cannot be played without a DVD actually present in the DVD
drive. Deposition of Robert W. Schumann
at 153; Second Supplemental Declaration
of Robert W. Schumann ¶ 15. This expert did not identify the mechanism
that prevents someone from copying encrypted DVDs to a hard drive in the
absence of a DVD in the disk drive.
However, none of this detracts from these undisputed
findings: some feature of either CSS itself,
or another (unidentified) safeguard implemented by DVD manufacturers pursuant
to their obligations under the CSS licensing scheme, makes it difficult to copy
a CSS-encrypted DVD to a hard drive and then compress that DVD to the point
where transmission over the Internet is practical. See Universal
I,
111 F.Supp.2d at 338. Conversely, a DVD movie
file without CSS encryption is easily copied, manipulated, and
transferred. See id.
at 313.
In other words, it might very well be
that copying is not blocked by CSS itself, but by some other protection
implemented by the DVD player manufacturers.
Nonetheless, in decrypting CSS, the DeCSS program (perhaps incidentally)
sidesteps whatever it is that blocks copying of the files.
While there may be alternative means of extracting a
non-encrypted, copyable movie from a DVD--for example, by copying the movie
along with its encryption "bit-by-bit," or "ripping" a DVD
by siphoning movie file data after CSS has already been decrypted by a licensed
player--DeCSS is the superior means of acquiring easily copyable movies, see
id.
at 342, and in fact, is recommended by a DVD
compression web site as the preferred tool for obtaining a decrypted DVD
suitable for compression and transmission over the Internet, see id. We acknowledge the complexity and the
rapidly changing nature of the technology involved in this case, but it is
clear that the Defendants have presented no evidence to refute any of these
carefully considered findings by the District Court.
FN6. The District
Court determined that even at high speeds, typical of university networks,
transmission times ranged from three minutes to six hours. The Court noted, however, that "the
availability of high speed network connections in many businesses and
institutions, and their growing availability in homes, make Internet and other
network traffic in pirated copies a growing
threat." Universal
I,
111 F.Supp.2d at 315.
Johansen posted the executable object code,
but not the source code, for DeCSS on his web site. The distinction between source code and
object code is relevant to this case, so a brief explanation is warranted. A computer responds to electrical charges,
the presence or *439 absence of which is represented by strings of 1's
and 0's. Strictly speaking,
"object code" consists of those 1's and 0's. Trial Tr. at 759 (Testimony of Professor
Edward Felton). While some people can
read and program in object code, "it would be inconvenient, inefficient
and, for most people, probably impossible to do so." Universal
I,
111 F.Supp.2d at 306. Computer languages have been written to
facilitate program writing and reading.
A program in such a computer language--BASIC, C, and Java are
examples--is said to be written in "source code." Source code has the benefit of being much
easier to read (by people) than object code, but as a general matter, it must
be translated back to object code before it can be read by a computer. This task is usually performed by a program called
a compiler. Since computer languages
range in complexity, object code can be placed on one end of a spectrum, and
different kinds of source code can be arrayed across the spectrum according to
the ease with which they are read and understood by humans. See Trial Exhibits BBC (Declaration
of David S. Touretzky), BBE (Touretzky Article:
Source v. Object Code: A False Dichotomy). Within months of its appearance in
executable form on Johansen's web site, DeCSS was widely available on the Internet,
in both object code and various forms of source code. See Trial Exhibit CCN (Touretzky
Article: Gallery of CSS Descramblers).
In November 1999, Corley wrote and placed on
his web site, 2600.com, an article about the DeCSS phenomenon. His web site is an auxiliary to the print
magazine, 2600: The Hacker Quarterly,
which Corley has been publishing since 1984. [FN7] As the name
suggests, the magazine is designed for "hackers," as is the web
site. While the magazine and the web
site cover some issues of general interest to computer users--such as threats
to online privacy--the focus of the publications is on the vulnerability of computer
security systems, and more specifically, how to exploit that vulnerability in
order to circumvent the security systems.
Representative articles explain how to steal an Internet domain name and
how to break into the computer systems at Federal Express. Universal
I,
111 F.Supp.2d at 308-09.
FN7. Defendant 2600
Enterprises, Inc., is the company Corley incorporated to run the magazine,
maintain the web site, and manage related endeavors like merchandising.
Corley's article about DeCSS detailed how CSS
was cracked, and described the movie
industry's efforts to shut down web sites posting DeCSS. It also explained that DeCSS could be used
to copy DVDs. At the end of the article, the Defendants posted copies of the
object and source code of DeCSS. In Corley's
words, he added the code to the story because "in a journalistic world,
... [y]ou have to show your evidence ... and particularly in the magazine that
I work for, people want to see specifically what it is that we are referring
to," including "what evidence ... we have" that there is in fact
technology that circumvents CSS. Trial Tr. at 823. Writing about DeCSS without including the
DeCSS code would have been, to Corley, "analogous to printing a story
about a picture and not printing the picture." Id. at 825. Corley also added to the article links that
he explained would take the reader to other web sites where DeCSS could be
found. Id. at 791, 826, 827, 848.
2600.com was only one of hundreds of web sites
that began posting DeCSS near the end of 1999.
The movie industry tried to stem the tide by sending cease-and-desist
letters to many of these sites. These
efforts met with only partial success; a
number of sites refused to remove *440 DeCSS. In January 2000, the studios filed this
lawsuit. [FN8]
FN8. The lawsuit was
filed against Corley, Shawn C. Reimerdes, and Roman Kazan. 2600 Enterprises, Inc., was later added as a
defendant. At an earlier stage of the
litigation, the action was settled as to Reimerdes
and Kazan. See Universal II, 111
F.Supp.2d at 346.
III. The DMCA
The DMCA was enacted in 1998 to implement the
World Intellectual Property Organization Copyright Treaty ("WIPO
Treaty"), which requires contracting parties to "provide adequate
legal protection and effective legal remedies against the circumvention of effective
technological measures that are used by authors in connection with the exercise
of their rights under this Treaty or the Berne Convention and that restrict
acts, in respect of their works, which are not authorized by the authors
concerned or permitted by law."
WIPO Treaty, Apr. 12, 1997, art. 11, S. Treaty Doc. No. 105-17 (1997),
available at 1997
WL 447232.
Even before the treaty, Congress had been devoting attention to the
problems faced by copyright enforcement in the digital age. Hearings on the
topic have spanned several years. See,
e.g., WIPO Copyright Treaties Implementation Act and Online Copyright
Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 Before the
Subcomm. on Courts and Intellectual Property of the House Comm. on the
Judiciary, 105th Cong. (1997); NII Copyright Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on
Courts and Intellectual Property of the House Comm. on the Judiciary, 104th
Cong. (1996); NII Copyright Protection
Act of 1995: Joint Hearing on H.R. 2441
and S. 1284 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary
and the Senate Comm. on the Judiciary, 104th Cong. (1995); H.R.Rep.
No. 105-551 (1998) S.Rep.
No. 105-190 (1998). This legislative effort resulted in the
DMCA.
The Act contains three provisions targeted at
the circumvention of technological protections. The first is subsection 1201(a)(1)(A), the
anti-circumvention provision. [FN9] This provision
prohibits a person from "circumvent[ing] a technological measure that
effectively controls access to a work protected under [Title
17, governing copyright]." The Librarian of Congress is required to
promulgate regulations every three years exempting from this subsection
individuals who would otherwise be "adversely affected" in
"their ability to make noninfringing uses." 17
U.S.C. § 1201(a)(1)(B)-(E).
FN9. For convenience,
all references to the DMCA are to the United State Code sections.
The second and third provisions are
subsections 1201(a)(2) and 1201(b)(1), the "anti-trafficking
provisions." Subsection
1201(a)(2), the provision at issue in this case, provides:
No person shall manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product, service, device, component,
or part thereof, that--
(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls access to a
work protected under this title;
(B) has only limited commercially significant purpose or
use other than to circumvent a technological measure that effectively controls
access to a work protected under this title;
or
(C) is marketed by that person or another acting in concert
with that person with that person's knowledge for use in circumventing a
technological measure *441 that effectively controls access to a work
protected under this title.
Id.
§ 1201(a)(2). To "circumvent a technological
measure" is defined, in pertinent part, as "to descramble a scrambled
work ... or otherwise to ... bypass ... a technological measure, without the
authority of the copyright owner."
Id.
§ 1201(a)(3)(A).
Subsection 1201(b)(1) is similar to subsection
1201(a)(2), except that subsection 1201(a)(2) covers those who traffic in
technology that can circumvent "a technological measure that
effectively controls access to a work protected under" Title
17, whereas subsection 1201(b)(1) covers those
who traffic in technology that can circumvent "protection afforded by a
technological measure that effectively protects a right of a copyright owner
under" Title
17. Id.
§ 1201(a)(2), (b)(1) (emphases added).
In other words, although both
subsections prohibit trafficking in a circumvention technology, the focus of
subsection 1201(a)(2) is circumvention of technologies designed to prevent
access to a work, and the focus of subsection 1201(b)(1) is circumvention
of technologies designed to permit access to a work but prevent
copying of the work or some other act that infringes a copyright. See S.Rep.
No. 105-190, at 11-12 (1998). Subsection 1201(a)(1) differs from both of
these anti-trafficking subsections in that it targets the use of a
circumvention technology, not the trafficking in such a technology.
The DMCA contains exceptions for schools and
libraries that want to use circumvention technologies to determine whether to
purchase a copyrighted product, 17
U.S.C. § 1201(d); individuals using
circumvention technology "for the sole purpose" of trying to achieve
"interoperability" of computer programs through reverse-engineering, id.
§ 1201(f); encryption research aimed at identifying
flaws in encryption technology, if the research is conducted to advance the
state of knowledge in the field, id.
§ 1201(g);
and several other exceptions not relevant here.
The DMCA creates civil remedies, id.
§ 1203, and criminal sanctions, id.
§ 1204.
It specifically authorizes a court to "grant temporary and
permanent injunctions on such terms as it deems reasonable to prevent or
restrain a violation." Id.
§ 1203(b)(1).
IV. Procedural History
Invoking subsection 1203(b)(1), the Plaintiffs
sought an injunction against the Defendants, alleging that the Defendants
violated the anti-trafficking provisions of the statute. On January 20, 2000, after a hearing, the
District Court issued a preliminary injunction barring the Defendants from
posting DeCSS. Universal
City Studios, Inc. v. Reimerdes,
82 F.Supp.2d 211 (S.D.N.Y.2000).
The Defendants complied with the preliminary
injunction, but continued to post links to other web sites carrying DeCSS, an
action they termed "electronic civil disobedience." Universal
I,
111 F.Supp.2d at 303, 312. Under the heading "Stop the MPAA
[(Motion Picture Association of America)]," Corley urged other web sites
to post DeCSS lest "we ... be forced into submission." Id.
at 313.
The Plaintiffs then sought a permanent
injunction barring the Defendants from both posting DeCSS and linking to sites
containing DeCSS. After a trial on the
merits, the Court issued a comprehensive opinion, Universal I, and
granted a permanent injunction, Universal II.
The Court explained that the Defendants'
posting of DeCSS on their web site clearly falls within section
1201(a)(2)(A) of the DMCA, rejecting as spurious
their claim that CSS is not a technological measure that "effectively
controls access to a *442 work" because it was so easily penetrated
by Johansen, Universal
I,
111 F.Supp.2d at 318, and as irrelevant their contention that DeCSS was designed to create a
Linux-platform DVD player, id.
at 319.
The Court also held that the Defendants cannot avail themselves of any
of the DMCA's exceptions, id.
at 319-22, and that the alleged importance of
DeCSS to certain fair uses of encrypted copyrighted material was immaterial to
their statutory liability, id.
at 322-24.
The Court went on to hold that when the Defendants "proclaimed on
their own site that DeCSS could be had by clicking on the hyperlinks" on
their site, they were trafficking in DeCSS, and therefore liable for their
linking as well as their posting. Id.
at 325.
Turning to the Defendants' numerous
constitutional arguments, the Court first held that computer code like DeCSS is
"speech" that is "protected" (in the sense of
"covered") by the First Amendment, id.
at 327, but that because the DMCA is targeting
the "functional" aspect of that speech, id.
at 328-29, it is "content neutral," id.
at 329,
[FN10] and the intermediate scrutiny of United
States v. O'Brien,
391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), applies, Universal
I,
111 F.Supp.2d at 329-30. The Court concluded that the DMCA survives
this scrutiny, id.
at 330-33, and also rejected prior restraint,
overbreadth, and vagueness challenges, id.
at 333- 39.
FN10. In a
supplemental Order, the Court corrected a typographical error in its opinion in Universal I by
changing the first sentence of the first full paragraph at 111
F.Supp.2d at 328 to read "Restrictions on
the nonspeech elements of expressive conduct fall into the content-neutral
category." Universal City
Studios, Inc. v. Reimerdes, No. 00 Civ. 0277(LAK) (S.D.N.Y. Aug. 17, 2001).
The Court upheld the constitutionality of the
DMCA's application to linking on similar grounds: linking, the Court concluded, is
"speech," but the DMCA is content-neutral, targeting only the
functional components of that speech. Therefore, its application to linking is
also evaluated under O'Brien, and, thus evaluated, survives intermediate
scrutiny. However, the Court concluded
that a blanket proscription on linking would create a risk of chilling
legitimate linking on the web. The
Court therefore crafted a restrictive test for linking liability (discussed
below) that it believed sufficiently mitigated that risk. The Court then found its test satisfied in
this case. Id. at 339-41.
Finally, the Court concluded that an
injunction was highly appropriate in this case. The Court observed that DeCSS was harming
the Plaintiffs, not only because they were now exposed to the possibility of
piracy and therefore were obliged to develop costly new safeguards for DVDs,
but also because, even if there was only indirect evidence that DeCSS
availability actually facilitated DVD
piracy, [FN11] the threat
of piracy was very real, particularly as Internet transmission speeds continue
to increase. Id. at 314-15,
342. Acknowledging that DeCSS was (and
still is) widely available on the Internet, the Court expressed confidence in
FN11. For example,
advertisements for pirated DVDs rose dramatically in number after the release
of DeCSS on the web, and DVD file compression web sites recommend the use of
DeCSS. Universal
I,
111 F.Supp.2d at 342.
the likelihood ... that this decision will serve notice on
others that "the strong right arm of equity" may be brought to bear
against them absent a change in their conduct and thus contribute to a climate
of appropriate respect for intellectual property rights in an age in which the
excitement of ready access to *443 untold quantities of information has
blurred in some minds the fact that taking what is not yours and not freely
offered to you is stealing.
Id. at 345.
The Court's injunction barred the Defendants
from: "posting on any Internet web
site" DeCSS; "in any other way
... offering to the public, providing, or otherwise trafficking in DeCSS"; violating the anti-trafficking provisions of
the DMCA in any other manner, and finally "knowingly linking any Internet
web site operated by them to any other web
site containing DeCSS, or knowingly maintaining any such link, for the purpose
of disseminating DeCSS." Universal
II,
111 F.Supp.2d at 346-47.
The Appellants have appealed from the
permanent injunction. The United States
has intervened in support of the constitutionality of the DMCA. We have also
had the benefit of a number of amicus curiae briefs, supporting and
opposing the District Court's judgment.
After oral argument, we invited the parties to submit responses to a
series of specific questions, and we have received helpful responses.
Discussion
I. Narrow Construction to Avoid Constitutional
Doubt
The Appellants first argue that, because their
constitutional arguments are at least substantial, we should interpret the
statute narrowly so as to avoid constitutional problems. They identify three different instances of
alleged ambiguity in the statute that they claim provide an opportunity for
such a narrow interpretation.
[1][2] First, they contend that subsection 1201(c)(1), which
provides that "[n]othing in this section shall affect rights, remedies,
limitations or defenses to copyright infringement, including fair use, under
this title," can be read to allow the circumvention of encryption technology
protecting copyrighted material when the material will be put to "fair
uses" exempt from copyright liability. [FN12] We disagree that
subsection 1201(c)(1) permits such a reading.
Instead, it simply clarifies that the DMCA targets the circumvention
of digital walls guarding copyrighted material (and trafficking in
circumvention tools), but does not concern itself with the use of those
materials after circumvention has occurred.
Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the
"fair use" of information just because that information was obtained
in a manner made illegal by the DMCA. The Appellants' much more expansive
interpretation of subsection 1201(c)(1) is not only outside the range of
plausible readings of the provision, but is also clearly refuted by the
statute's legislative history. [FN13] See *444Commodity
Futures Trading Commission v. Schor,
478 U.S. 833, 841, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (constitutional doubt canon "does not give a court
the prerogative to ignore the legislative will").
FN12. In Part IV, infra,
we consider the Appellants' claim that the DMCA is unconstitutional because of
its effect on opportunities for fair use of copyrighted materials.
FN13. The
legislative history of the enacted bill makes quite clear that Congress
intended to adopt a "balanced" approach to accommodating both piracy
and fair use concerns, eschewing the quick fix of simply exempting from the statute all circumventions for fair
use. H.R.Rep.
No. 105- 551, pt. 2, at 25 (1998). It sought to achieve this goal principally
through the use of what it called a "fail-safe" provision in the
statute, authorizing the Librarian of Congress to exempt certain users from the
anti-circumvention provision when it becomes evident that in practice, the
statute is adversely affecting certain kinds of fair use. See 17
U.S.C. § 1201(a)(1)(C); H.R.Rep.
No. 105-551, pt. 2, at 36 ("Given the threat
of a diminution of otherwise lawful access to works and information, the
Committee on Commerce believes that a 'fail-safe' mechanism is required. This mechanism would ... allow the ...
[waiver of the anti-circumvention provisions], for limited time periods, if
necessary to prevent a diminution in the availability to individual users of a
particular category of copyrighted materials.").
Congress also sought to implement a balanced approach
through statutory provisions that leave limited areas of breathing space for
fair use. A good example is subsection
1201(d), which allows a library or educational institution to circumvent a
digital wall in order to determine whether it wishes legitimately to obtain the
material behind the wall. See H.R.Rep.
No. 105-551, pt. 2, at 41. It would be strange for Congress to open
small, carefully limited windows for circumvention to permit fair use in
subsection 1201(d) if it then meant to exempt in subsection 1201(c)(1) any circumvention necessary
for fair use.
Second, the Appellants urge a narrow
construction of the DMCA because of subsection 1201(c)(4), which provides that
"[n]othing in this section shall enlarge or diminish any rights of free
speech or the press for activities using consumer electronics,
telecommunications, or computing products." This language is clearly precatory: Congress could not "diminish"
constitutional rights of free speech even if it wished to, and the fact that
Congress also expressed a reluctance to "enlarge" those rights cuts
against the Appellants' effort to infer a narrowing construction of the Act
from this provision.
[3][4] Third, the Appellants argue that an individual who buys a
DVD has the "authority of the copyright owner" to view the DVD, and
therefore is exempted from the DMCA pursuant to subsection 1201(a)(3)(A) when
the buyer circumvents an encryption technology in order to view the DVD on a
competing platform (such as Linux). The
basic flaw in this argument is that it misreads subsection 1201(a)(3)(A). That provision exempts from liability those
who would "decrypt" an encrypted DVD with the authority of a
copyright owner, not those who would "view" a DVD with the authority
of a copyright owner. [FN14] In any event, the
Defendants offered no evidence that the Plaintiffs have either explicitly or
implicitly authorized DVD buyers to circumvent encryption technology to support
use on multiple platforms. [FN15]
FN14. This is
actually what subsection 1201(a)(3)(A) means when read in conjunction with the anti-circumvention
provisions. When read together with the
anti-trafficking provisions, subsection 1201(a)(3)(A) frees an
individual to traffic in encryption technology designed or marketed to
circumvent an encryption measure if the owner of the material protected by the
encryption measure authorizes that circumvention.
FN15. Even if the
Defendants had been able to offer such evidence, and even if they could have
demonstrated that DeCSS was "primarily designed ... for the purpose
of" playing DVDs on multiple platforms (and therefore not for the purpose
of "circumventing a technological measure"), a proposition questioned
by Judge Kaplan, see Universal
I,
111 F.Supp.2d at 311 n. 79, the Defendants would
defeat liability only under subsection 1201(a)(2)(A). They would still be vulnerable to liability
under subsection 1201(a)(2)(C), because they "marketed" DeCSS for the
copying of DVDs, not just for the playing of DVDs on multiple platforms. See, e.g., Trial Tr. at 820.
We conclude that the anti-trafficking and
anti-circumvention provisions of the DMCA
are not susceptible to the narrow interpretations urged by the Appellants. We therefore proceed to consider the
Appellants' constitutional claims.
II. Constitutional Challenge Based on the
Copyright Clause
[5] In a footnote to their brief, the Appellants appear to
contend that the DMCA, as construed by the District Court, exceeds the
constitutional authority *445 of Congress to grant authors copyrights
for a "limited time," U.S.
Const. art. I, § 8, cl. 8, because it "empower[s] copyright owners to
effectively secure perpetual protection by mixing public domain works with
copyrighted materials, then locking both up with technological protection
measures." Brief for Appellants at
42 n.30. This argument is elaborated in the amici curiae brief filed by
Prof. Julie E. Cohen on behalf of herself and 45 other intellectual property
law professors. See also David
Nimmer, A
Riff on Fair Use in the Digital Millennium Copyright Act,
148 U. Pa. L. Rev. 673, 712 (2000). For two reasons, the argument provides no
basis for disturbing the judgment of the District Court.
[6][7] First, we have repeatedly ruled that arguments presented
to us only in a footnote are not entitled to appellate consideration. Concourse
Rehabilitation & Nursing Center Inc. v. DeBuono,
179 F.3d 38, 47 (2d Cir.1999); United
States v. Mapp,
170 F.3d 328, 333 n. 8 (2d Cir.1999); United
States v. Restrepo,
986 F.2d 1462, 1463 (2d Cir.1993). Although an amicus
brief can be helpful in elaborating issues properly presented by the parties,
it is normally not a method for injecting new issues into an appeal, at least
in cases where the parties are competently represented by counsel. See,
e.g., Concourse
Center,
179 F.3d at 47.
Second, to whatever extent the argument might
have merit at some future time in a case with a properly developed record, the
argument is entirely premature and speculative at this time on this record. There is not even a claim, much less
evidence, that any Plaintiff has sought to prevent copying of public domain
works, or that the injunction prevents the Defendants from copying such
works. As Judge Kaplan noted, the
possibility that encryption would preclude access to public domain works
"does not yet appear to be a problem, although it may emerge as one in the
future." Universal
I,
111 F.Supp.2d at 338 n. 245.
III. Constitutional Challenges Based on the
First Amendment
A. Applicable Principles
Last year, in one of our Court's first forays
into First Amendment law in the digital age, we took an
"evolutionary" approach to the task of tailoring familiar
constitutional rules to novel technological circumstances, favoring
"narrow" holdings that would permit the law to mature on a
"case-by-case" basis. See Name.Space,
Inc. v. Network Solutions, Inc.,
202 F.3d 573, 584 n. 11 (2d Cir.2000). In that spirit, we proceed, with appropriate
caution, to consider the Appellants' First
Amendment challenges by analyzing a series of preliminary issues the resolution
of which provides a basis for adjudicating the specific objections to the DMCA
and its application to DeCSS. These
issues, which we consider only to the extent necessary to resolve the pending
appeal, are whether computer code is speech, whether computer programs are
speech, the scope of First Amendment protection for computer code, and the scope
of First Amendment protection for decryption code. Based on our analysis of these issues, we
then consider the Appellants' challenge to the injunction's provisions
concerning posting and linking.
1. Code as Speech
[8] Communication does not lose constitutional protection as
"speech" simply because it is expressed in the language of computer
code. Mathematical formulae and musical
scores are written in "code," i.e., symbolic notations not
comprehensible to the uninitiated, and yet both are covered by the First
Amendment. If someone *446 chose
to write a novel entirely in computer object code by using strings of 1's and
0's for each letter of each word, the resulting work would be no different for
constitutional purposes than if it had been written in English. The "object code" version would be
incomprehensible to readers outside the programming community (and tedious to
read even for most within the community), but it would be no more
incomprehensible than a work written in Sanskrit for those unversed in that
language. The undisputed evidence reveals that even pure object code can
be, and often is, read and understood by experienced programmers. And source code (in any of its various
levels of complexity) can be read by many more. See Universal
I,
111 F.Supp.2d at 326. Ultimately, however, the ease with which a
work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from
conventional speech for First Amendment purposes, it is not because it is
written in an obscure language. See Junger
v. Daley,
209 F.3d 481, 484 (6th Cir.2000).
2. Computer Programs as Speech
Of course, computer code is not likely to be
the language in which a work of literature is written. Instead, it is primarily the language for
programs executable by a computer.
These programs are essentially instructions to a computer. In general, programs may give instructions
either to perform a task or series of tasks when initiated by a single (or
double) click of a mouse or, once a program is operational
("launched"), to manipulate data that the user enters into the
computer. [FN16] Whether computer code that gives a computer
instructions is "speech" within the meaning of the First Amendment
requires consideration of the scope of the Constitution's protection of speech.
FN16. For example, a
program (or part of a program) will give a computer
the direction to "launch" a word-processing program like WordPerfect
when the icon for WordPerfect is clicked;
a program like WordPerfect will give the computer directions to display
letters on a screen and manipulate them according to the computer user's
preferences whenever the appropriate keys are struck.
The First Amendment provides that
"Congress shall make no law ... abridging the freedom of
speech...." U.S.
Const. amend. I. "Speech" is an elusive
term, and judges and scholars have debated its bounds for two centuries. Some would confine First Amendment
protection to political speech. E.g.,
Robert Bork, Neutral Principles and Some First Amendment Problems, 47
Ind. L.J. 1 (1971). Others would extend
it further to artistic expression. E.g.,
Marci A. Hamilton, Art
Speech,
49 Vand. L. Rev. 73 (1996).
Whatever might be the merits of these and
other approaches, the law has not been so limited. Even dry information, devoid of advocacy,
political relevance, or artistic expression, has been accorded First Amendment
protection. See Miller
v. California,
413 U.S. 15, 34, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ("The First Amendment protects works which, taken as
a whole, have serious literary, artistic, political, or scientific value
...." (emphasis added)); Roth
v. United States,
354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (First Amendment embraces "[a]ll ideas having even
the slightest redeeming social
importance," including the " 'advancement of truth, science,
morality, and arts in general.' " (quoting 1 Journals of the Continental
Congress 108 (1774))); Board
of Trustees of Leland Stanford Junior University v. Sullivan,
773 F.Supp. 472, 474 (D.D.C.1991) ("It is
... settled ... that the First Amendment protects scientific expression and
debate just *447 as it protects political and artistic
expression."); see also
Kent Greenawalt, Speech, Crime and the Uses of Language 85 (1989) (
"[A]ssertions of fact generally fall within a principle of freedom of
speech ...."); cf. Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 763, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ("prescription drug price information" is
"speech" because a consumer's interest in "the free flow of
commercial information" may be "keener by far" than "his
interest in the day's most urgent political debate").
[9] Thus, for example, courts have subjected to First
Amendment scrutiny restrictions on the dissemination of technical scientific
information, United
States v. Progressive, Inc.,
467 F.Supp. 990 (W.D.Wis.1979), and scientific
research, Stanford
University,
773 F.Supp. at 473, and attempts to regulate the
publication of instructions, [FN17] see,
e.g., United
States v. Raymond,
228 F.3d 804, 815 (7th Cir.2000) (First Amendment
does not protect instructions for violating the tax laws); United
States v. Dahlstrom,
713 F.2d 1423, 1428 (9th Cir.1983) (same); Herceg
v. Hustler Magazine,
Inc.,
814 F.2d 1017, 1020-25 (5th Cir.1987) (First
Amendment protects instructions for engaging in a dangerous sex act); United
States v. Featherston,
461 F.2d 1119, 1122-23 (5th Cir.1972) (First
Amendment does not protect instructions for building an explosive device); see also Bernstein
v. United States Department of State,
922 F.Supp. 1426, 1435 (N.D.Cal.1996) (
"Instructions, do-it-yourself manuals, [and] recipes" are all
"speech"). [FN18]
FN17. We note that
instructions are of varied types. See
Vartuli, 228 F.3d at 111.
"Orders" from one member of a conspiracy to another member, or
from a superior to a subordinate, might resemble instructions but nonetheless
warrant less or even no constitutional protection because their capacity to
inform is meager, and because it is unlikely that the recipient of the order
will engage in the "intercession of ... mind or ... will"
characteristic of the sort of communication between two parties protected by
the Constitution, see id. at 111-12 (noting that statements in the form
of orders, instructions, or commands cannot claim "talismanic immunity
from constitutional limitations" but "should be subjected to careful
and particularized analysis to ensure that no speech entitled to First Amendment
protection fails to receive it"); Kent Greenawalt, Speech and Crime,
Am. B. Found. Res. J. 645, 743-44 (1980).
FN18. These cases
almost always concern instructions on how to commit illegal acts. Several courts have concluded that such
instructions fall outside the First Amendment.
However, these conclusions never rest on the fact that the speech took
the form of instructions, but rather on the fact that the instructions
counseled the listener how to commit illegal acts. See, e.g., Rice
v. Paladin Enterprises, Inc.,
128 F.3d 233, 247-49 (4th Cir.1997); United
States v. Barnett,
667 F.2d 835, 842 (9th Cir.1982). None of these
opinions even hints that instructions are a form of speech categorically
outside the First Amendment.
[10][11] Computer programs are not exempted from the category of
First Amendment speech simply because their instructions require use of a
computer. A recipe is no less
"speech" because it calls for the use of an oven, and a musical score
is no less "speech" because it specifies performance on an electric
guitar. Arguably distinguishing
computer programs from conventional language instructions is the fact that
programs are executable on a computer.
But the fact that a program has the capacity to direct the functioning
of a computer does not mean that it lacks the additional capacity to convey
information, and it is the conveying of information that renders instructions "speech" for purposes of
the First Amendment. [FN19] The information *448 conveyed by most
"instructions" is how to perform a task.
FN19. Of course, we
do not mean to suggest that the communication of "information" is a
prerequisite of protected "speech."
Protected speech may communicate, among other things, ideas, emotions,
or thoughts. We identify
"information" only because this is what computer programs most often
communicate, in addition to giving directions to a computer.
[12] Instructions such as computer code, which are intended to
be executable by a computer, will often convey information capable of
comprehension and assessment by a human being. [FN20] A programmer
reading a program learns information about instructing a computer, and might
use this information to improve personal programming skills and perhaps the
craft of programming. Moreover,
programmers communicating ideas to one another almost inevitably communicate in
code, much as musicians use notes. [FN21] Limiting
First Amendment protection of programmers to descriptions of computer code (but
not the code itself) would impede discourse among computer scholars, [FN22] just as
limiting protection for musicians to descriptions of musical scores (but not
sequences of notes) would impede their exchange of ideas and expression. Instructions that communicate information
comprehensible to a human qualify as speech
whether the instructions are designed for execution by a computer or a human
(or both).
FN20. However, in
the rare case where a human's mental faculties do not intercede in executing
the instructions, we have withheld protection. See Vartuli, 228 F.3d at
111.
FN21. Programmers
use snippets of code to convey their ideas for new programs; economists and other creators of computer
models publish the code of their models in order to demonstrate the models'
vigor. Brief of Amici Curiae Dr.
Harold Abelson et al. at 17;
Brief of Amici Curiae Steven Bellovin et al. at
12-13; see also Bernstein
v. United States Department of Justice,
176 F.3d 1132, 1141 (9th Cir.) (concluding that
computer source code is speech because it is "the preferred means" of
communication among computer programmers and cryptographers), reh'g in banc
granted and opinion withdrawn, 192
F.3d 1308 (9th Cir.1999).
FN22. Reinforcing
the conclusion that software programs qualify as "speech" for First
Amendment purposes--even though they instruct computers--is the accelerated
blurring of the line between "source code" and conventional
"speech." There already exist
programs capable of translating English
descriptions of a program into source code.
Trial Tr. at 1101-02 (Testimony of Professor Andrew Appel). These programs are functionally
indistinguishable from the compilers that routinely translate source code into
object code. These new programs (still
apparently rudimentary) hold the potential for turning "prose"
instructions on how to write a computer program into the program itself. Even if there were an argument for exempting
the latter from First Amendment protection, the former are clearly protected
for the reasons set forth in the text.
As technology becomes more sophisticated, instructions to other humans
will increasingly be executable by computers as well.
Vartuli is not to the contrary. The defendants in Vartuli marketed a
software program called "Recurrence," which would tell computer users
when to buy or sell currency futures contracts if their computers were fed
currency market rates. The Commodity
Futures Trading Commission charged the defendants with violating federal law
for, among other things, failing to register as commodity trading advisors for
their distribution of the Recurrence software. The defendants maintained that
Recurrence's cues to users to buy or sell were protected speech, and that the
registration requirement as applied to Recurrence was a constitutionally
suspect prior restraint. We rejected
the defendants' constitutional claim, holding that Recurrence "in the form
it was sold and marketed by the
defendants" did not generate speech protected by the First Amendment. Vartuli, 228 F.3d at 111.
*449 Essential to our ruling in Vartuli
was the manner in which the defendants marketed the software and
intended that it be used: the defendants
told users of the software to follow the software's cues "with no
second-guessing," id., and intended that users follow Recurrence's
commands "mechanically" and "without the intercession of the
mind or the will of the recipient," id. We held that the values served by the First
Amendment were not advanced by these instructions, even though the instructions
were expressed in words. Id. We
acknowledged that some users would, despite the defendants' marketing, refuse
to follow Recurrence's cues mechanically but instead would use the commands as
a source of information and advice, and that, as to these users, Recurrence's
cues might very "well have been 'speech.' " Id. at
111-12. Nevertheless, we concluded that
the Government could require registration for Recurrence's intended use because
such use was devoid of any constitutionally protected speech. Id. at 112.
Vartuli considered two ways in which a
programmer might be said to communicate through code: to the user of the program (not necessarily
protected) and to the computer (never protected). [FN23] However, this does not mean that Vartuli
denied First Amendment protection to all computer programs. Since Vartuli limited its
constitutional scrutiny to the code "as
marketed," i.e., as an automatic trading system, it did not have
occasion to consider a third manner in which a programmer might communicate
through code: to another programmer.
FN23. Vartuli
reasoned that the interaction between "programming commands as triggers
and semiconductors as a conduit," even though communication, is not
"speech" within the meaning of the First Amendment and that the
communication between Recurrence and a customer using it as intended was
similarly not "speech." Vartuli,
228 F.3d at 111.
For all of these reasons, we join the other
courts that have concluded that computer code, and computer programs
constructed from code can merit First Amendment protection, see Junger,
209 F.3d at 484; [FN24] Bernstein,
922 F.Supp. at 1434-36; see also Bernstein,
176 F.3d at 1140-41; Karn
v. United States Department of State,
925 F.Supp. 1, 9-10 (D.D.C.1996) (assuming,
without deciding, that source code with English comments interspersed
throughout is "speech"), although the scope of such protection
remains to be determined.
FN24. The reasoning
of Junger has recently been criticized.
See Orin S. Kerr, Are We
Overprotecting Code? Thoughts on First-Generation Internet
Law,
57 Wash. & Lee L. Rev. 1287 (2000). Prof. Kerr apprehends that if encryption
code is First Amendment speech because it conveys "ideas about
cryptography," Junger,
209 F.3d at 484, all code will be protected
"because code will always convey information about itself." Kerr, supra,
at 1291. That should not suffice, he
argues, because handing someone an object, for example, a padlock, is a good
way of communicating how that object works, yet a padlock is not speech. Id. at 1291-92. However, code does not cease to be speech
just because some objects that convey information are not speech. Both code and a padlock can convey
information, but only code, because it uses a notational system comprehensible
by humans, is communication that qualifies as speech. Prof. Kerr might be right that making the
communication of ideas or information the test of whether code is speech
provides First Amendment coverage to many, perhaps most, computer programs, but
that is a consequence of the information-conveying capacity of the programs,
not a reason for denying them First Amendment coverage.
3. The Scope of First
Amendment Protection for Computer Code
[13][14][15] Having concluded that computer code conveying information
is "speech" *450 within the meaning of the First Amendment, we
next consider, to a limited extent, the scope of the protection that code enjoys.
As the District Court recognized, Universal
I,
111 F.Supp.2d at 327, the scope of protection for
speech generally depends on whether the restriction is imposed because of the
content of the speech. Content-based
restrictions are permissible only if they serve compelling state interests and
do so by the least restrictive means available. See Sable
Communications of California, Inc. v. FCC,
492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). A content-neutral
restriction is permissible if it serves a substantial governmental interest,
the interest is unrelated to the suppression of free expression, and the
regulation is narrowly tailored, which "in this context requires ... that
the means chosen do not 'burden substantially more speech than is necessary to
further the government's legitimate interests.' " Turner
Broadcasting System, Inc. v. FCC,
512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (quoting Ward
v. Rock Against Racism,
491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). [FN25]
FN25. The Supreme
Court has used slightly different formulations to express the narrow tailoring
requirement of a content-neutral regulation. In O'Brien, the formulation
was "if the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest." 391
U.S. at 377, 88 S.Ct. 1673. In Ward, the formulation was "
'so long as the ... regulation promotes a substantial
government interest that would be achieved less effectively absent the
regulation.' " 491
U.S. at 799, 109 S.Ct. 2746 (quoting United
States v. Albertini,
472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). Ward
added, however, that the regulation may not "burden substantially more
speech than is necessary to further the government's legitimate
interests." Id. (emphasis
added). Turner Broadcasting
quoted both the "no greater than is essential" formulation from O'Brien,
see Turner
Broadcasting,
512 U.S. at 662, 114 S.Ct. 2445, and the
"would be achieved less effectively" formulation from Ward, see id.
Turner Broadcasting made clear that the narrow tailoring requirement
is less demanding than the least restrictive means requirement of a
content-specific regulation, id., and appears to have settled on the
"substantially more" phrasing from Ward as the formulation
that best expresses the requirement, id. That is the formulation we will apply.
[16][17] "[G]overnment regulation of expressive activity is
'content neutral' if it is justified without reference to the content of
regulated speech." Hill
v. Colorado,
530 U.S. 703, 720, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). "The
government's purpose is the controlling consideration. A regulation that serves purposes unrelated
to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but
not others." Ward,
491 U.S. at 791, 109 S.Ct. 2746. The Supreme Court's approach to determining
content-neutrality appears to be applicable whether what is regulated is
expression, see id.
at 791-93, 109 S.Ct. 2746 (regulation of volume
of music), conduct, see O'Brien,
391 U.S. at 377, 88 S.Ct. 1673, or any
"activity" that can be said to combine speech and non-speech
elements, see Spence
v. Washington,
418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (applying O'Brien to "activity" of
displaying American flag hung upside down and decorated with a peace symbol).
[18] To determine whether regulation of computer code is
content-neutral, the initial inquiry must be whether the regulated activity is
"sufficiently imbued with elements of communication to fall within the
scope of the First ... Amendment[]."
Id.
at 409, 94
S.Ct. 2727;
see also Name.Space,
202 F.3d at 585.
Computer code, as we have noted, often conveys information
comprehensible to human beings, even as it also directs a computer to perform
various functions. Once a speech
component *451 is identified, the inquiry then proceeds to whether the
regulation is "justified without reference to the content of regulated
speech." Hill,
530 U.S. at 720, 120 S.Ct. 2480.
[19] The Appellants vigorously reject the idea that computer
code can be regulated according to any different standard than that applicable
to pure speech, i.e., speech that
lacks a nonspeech component. Although
recognizing that code is a series of instructions to a computer, they argue
that code is no different, for First Amendment purposes, than blueprints that
instruct an engineer or recipes that instruct a cook. See Supplemental Brief for Appellants
at 2, 3. [FN26] We
disagree. Unlike a blueprint or a
recipe, which cannot yield any functional result without human comprehension of
its content, human decision-making, and human action, computer code can
instantly cause a computer to accomplish tasks and instantly render the results
of those tasks available throughout the world via the Internet. The only human action required to achieve
these results can be as limited and instantaneous as a single click of a mouse. These realities of what code is and what its
normal functions are require a First Amendment analysis that treats code as
combining nonspeech and speech elements, i.e., functional and expressive
elements. See Red
Lion Broadcasting Co. v. FCC,
395 U.S. 367, 386, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) ("[D]ifferences in the characteristics of new media
justify differences in the First Amendment standards applied to them."
(footnote omitted)).
FN26. This argument
is elaborated by some of the amici curiae. "In the absence of human intervention,
code does not function, it engages in no conduct. It is as passive as a cake
recipe." Brief of Amici Curiae
Dr. Harold Abelson et al. at 26.
We recognize, as did Judge Kaplan, that the
functional capability of computer code cannot yield a result until a human
being decides to insert the disk containing the code into a computer and causes
it to perform its function (or programs a computer to cause the code to perform
its function). Nevertheless, this
momentary intercession of human action does not diminish the nonspeech
component of code, nor render code entirely speech, like a blueprint or a
recipe. Judge Kaplan, in a passage that
merits extensive quotation, cogently explained why this is especially so with
respect to decryption code:
[T]he focus on functionality in order to determine the
level of scrutiny is not an inevitable consequence of the speech-conduct
distinction. Conduct has immediate
effects on the environment. Computer
code, on the other hand, no matter how functional, causes a computer to perform
the intended operations only if someone uses the code to do so. Hence, one commentator, in a thoughtful
article, has maintained that functionality is really "a proxy for effects
or harm" and that its adoption as a determinant of the level of scrutiny
slides over questions of causation that intervene between the dissemination of
a computer program and any harm caused by its use.
The characterization of functionality as a proxy for the
consequences of use is accurate. But
the assumption that the chain of causation is too attenuated to justify the use of functionality
to determine the level of scrutiny, at least in this context, is not.
Society increasingly depends upon technological means of
controlling access to digital files and systems, whether they are military
computers, bank records, academic records, copyrighted works or something else
entirely. There are far too many who,
given any opportunity, will bypass security measures, *452 some for the
sheer joy of doing it, some for innocuous reasons, and others for more
malevolent purposes. Given the
virtually instantaneous and worldwide dissemination widely available via the
Internet, the only rational assumption is that once a computer program capable
of bypassing such an access control system is disseminated, it will be
used. And that is not all.
There was a time when copyright infringement could be dealt
with quite adequately by focusing on the infringing act. If someone wished to make and sell high
quality but unauthorized copies of a copyrighted book, for example, the
infringer needed a printing press. The
copyright holder, once aware of the appearance of infringing copies, usually
was able to trace the copies up the chain of distribution, find and prosecute
the infringer, and shut off the infringement at the source.
In principle, the digital world is very different. Once a decryption program like DeCSS is written,
it quickly can be sent all over the world. Every
recipient is capable not only of decrypting and perfectly copying plaintiffs'
copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling
every recipient to do the same. They
likewise are capable of transmitting perfect copies of the decrypted DVD. The
process potentially is exponential rather than linear.
. .
. . .
These considerations drastically alter consideration of the
causal link between dissemination of computer programs such as this and their
illicit use. Causation in the law ultimately involves practical policy
judgments. Here, dissemination itself
carries very substantial risk of imminent harm because the mechanism is so
unusual by which dissemination of means of circumventing access controls to
copyrighted works threatens to produce virtually unstoppable infringement of
copyright. In consequence, the causal
link between the dissemination of circumvention computer programs and their
improper use is more than sufficiently close to warrant selection of a level of
constitutional scrutiny based on the programs' functionality.
Universal
I,
111 F.Supp.2d at 331-32 (footnotes omitted). The functionality of computer code properly
affects the scope of its First Amendment protection.
4. The Scope of First Amendment Protection for Decryption Code
In considering the scope of First Amendment
protection for a decryption program like
DeCSS, we must recognize that the essential purpose of encryption code is to
prevent unauthorized access. Owners of
all property rights are entitled to prohibit access to their property by
unauthorized persons. Homeowners can install locks on the doors of their
houses. Custodians of valuables can
place them in safes. Stores can attach
to products security devices that will activate alarms if the products are
taken away without purchase. These and
similar security devices can be circumvented.
Burglars can use skeleton keys to open door locks. Thieves can obtain the combinations to
safes. Product security devices can be
neutralized.
Our case concerns a security device, CSS
computer code, that prevents access by unauthorized persons to DVD movies. The CSS code is embedded in the DVD
movie. Access to the movie cannot be
obtained unless a person has a device, a licensed DVD player, equipped with
computer code capable of decrypting the CSS encryption code. In its basic function, *453 CSS is
like a lock on a homeowner's door, a combination of a safe, or a security
device attached to a store's products.
DeCSS is computer code that can decrypt CSS.
In its basic function, it is like a skeleton key that can open a locked door, a
combination that can open a safe, or a device that can neutralize the security
device attached to a store's products. [FN27] DeCSS enables
anyone to gain access to a DVD movie without using a DVD player.
FN27. More dramatically, the Government calls DeCSS "a
digital crowbar." Brief for
Intervenor United States at 19.
The initial use of DeCSS to gain access to a
DVD movie creates no loss to movie producers because the initial user must
purchase the DVD. However, once the DVD is purchased, DeCSS enables the initial
user to copy the movie in digital form and transmit it instantly in virtually
limitless quantity, thereby depriving the movie producer of sales. The advent of the Internet creates the
potential for instantaneous worldwide distribution of the copied material.
At first glance, one might think that Congress
has as much authority to regulate the distribution of computer code to decrypt
DVD movies as it has to regulate distribution of skeleton keys, combinations to
safes, or devices to neutralize store product security devices. However, despite the evident legitimacy of
protection against unauthorized access to DVD movies, just like any other
property, regulation of decryption code like DeCSS is challenged in this case
because DeCSS differs from a skeleton key in one important respect: it not only
is capable of performing the function of unlocking the encrypted DVD movie, it
also is a form of communication, albeit written in a language not understood by
the general public. As a communication,
the DeCSS code has a claim to being "speech," and as
"speech," it has a claim to being protected by the First Amendment. But just as the realities of what any
computer code can accomplish must inform the scope of its constitutional
protection, so the capacity of a decryption program like DeCSS to accomplish
unauthorized--indeed, unlawful--access to materials in which the Plaintiffs have
intellectual property rights must inform and limit the scope of its First
Amendment protection. Cf. Red
Lion,
395 U.S. at 386, 89 S.Ct. 1794
("[D]ifferences in the characteristics of new media justify differences in
the First Amendment standards applied to them.").
With all of the foregoing considerations in
mind, we next consider the Appellants' First Amendment challenge to the DMCA as
applied in the specific prohibitions that have been imposed by the District
Court's injunction.
B. First Amendment Challenge
The District Court's injunction applies the
DMCA to the Defendants by imposing two types of prohibition, both grounded on
the anti-trafficking provisions of the DMCA. The first prohibits posting DeCSS
or any other technology for circumventing CSS on any Internet web site. Universal
II,
111 F.Supp.2d at 346-47, ¶ 1(a), (b). The second
prohibits knowingly linking any Internet web site to any other web site
containing DeCSS. Id. at 347,
¶ 1(c).
The validity of the posting and linking prohibitions must be considered
separately.
1. Posting
[20][21] The initial issue is whether the posting prohibition is content-neutral, since, as we have explained,
this classification*454 determines the applicable constitutional
standard. The Appellants contend that
the anti-trafficking provisions of the DMCA and their application by means of
the posting prohibition of the injunction are content-based. They argue that the provisions
"specifically target ... scientific expression based on the particular
topic addressed by that expression--namely, techniques for circumventing
CSS." Supplemental Brief for Appellants at 1. We disagree. The Appellants' argument fails to recognize
that the target of the posting provisions of the injunction--DeCSS--has both a
nonspeech and a speech component, and that the DMCA, as applied to the
Appellants, and the posting prohibition of the injunction target only the
nonspeech component. Neither the DMCA
nor the posting prohibition is concerned with whatever capacity DeCSS might
have for conveying information to a human being, and that capacity, as
previously explained, is what arguably creates a speech component of the
decryption code. The DMCA and the
posting prohibition are applied to DeCSS solely because of its capacity to
instruct a computer to decrypt CSS. That functional capability is not speech
within the meaning of the First Amendment. The Government seeks to
"justif[y]," Hill,
530 U.S. at 720, 120 S.Ct. 2480, both the
application of the DMCA and the posting prohibition to the Appellants solely on
the basis of the functional capability of DeCSS to instruct a computer to
decrypt CSS, i.e., "without reference to the content of the regulated speech," id. This type of regulation is therefore
content-neutral, just as would be a restriction on trafficking in skeleton keys
identified because of their capacity to unlock jail cells, even though some of
the keys happened to bear a slogan or other legend that qualified as a speech
component.
[22] As a content-neutral regulation with an incidental effect
on a speech component, the regulation must serve a substantial governmental
interest, the interest must be unrelated to the suppression of free expression,
and the incidental restriction on speech must not burden substantially more
speech than is necessary to further that interest. Turner
Broadcasting,
512 U.S. at 662, 114 S.Ct. 2445. The Government's interest in preventing
unauthorized access to encrypted copyrighted material is unquestionably
substantial, and the regulation of DeCSS by the posting prohibition plainly
serves that interest. Moreover, that interest is unrelated to the suppression
of free expression. The injunction regulates the posting of DeCSS, regardless
of whether DeCSS code contains any information comprehensible by human beings
that would qualify as speech. Whether
the incidental regulation on speech burdens substantially more speech than is
necessary to further the interest in preventing unauthorized access to copyrighted
materials requires some elaboration.
[23] Posting DeCSS on the Appellants' web site makes it
instantly available at the click of a mouse to any person in the world with
access to the Internet, and such person can
then instantly transmit DeCSS to anyone else with Internet access. Although the prohibition on posting prevents
the Appellants from conveying to others the speech component of DeCSS, the
Appellants have not suggested, much less shown, any technique for barring them
from making this instantaneous worldwide distribution of a decryption code that
makes a lesser restriction on the code's speech component. [FN28] It is true that the
*455 Government has alternative means of prohibiting unauthorized access
to copyrighted materials. For example,
it can create criminal and civil liability for those who gain unauthorized
access, and thus it can be argued that the restriction on posting DeCSS is not
absolutely necessary to preventing unauthorized access to copyrighted
materials. But a content-neutral
regulation need not employ the least restrictive means of accomplishing the
governmental objective. Id. It
need only avoid burdening "substantially more speech than is necessary to
further the government's legitimate interests." Id. (internal quotation marks and
citation omitted). The prohibition on
the Defendants' posting of DeCSS satisfies that standard. [FN29]
FN28. Briefs of some
of the amici curiae discuss the possibility of adequate protection
against copying of copyrighted materials by adopting the approach of the Audio
Home Recording Act of 1992, 17
U.S.C. § 1002(a), which requires digital audio tape recorders to include a
technology that prevents serial copying, but permits making a single copy. See,
e.g., Brief of Amici Curiae Benkler and Lessig at 15. However, the Defendants did not present
evidence of the current feasibility of a similar solution to prevent serial
copying of DVDs over the Internet. Even
if the Government, in defending the DMCA, must sustain a burden of proof in
order to satisfy the standards for content-neutral regulation, the Defendants
must adduce enough evidence to create fact issues concerning the current
availability of less intrusive technological solutions. They did not do so in the District
Court. Moreover, we note that when
Congress opted for the solution to serial copying of digital audio tapes, it
imposed a special royalty on manufacturers of digital audio recording devices
to be distributed to appropriate copyright holders. See 17
U.S.C. § § 1003-1007. We doubt if the
First Amendment required Congress to adopt a similar technology/royalty scheme
for regulating the copying of DVDs, but in any event the record in this case
provides no basis for invalidating the anti-trafficking provisions of the DMCA
or the injunction for lack of such an alternative approach.
FN29. We have
considered the opinion of a California intermediate appellate court in DVD
Copy Control Ass'n v. Bunner,
93 Cal.App.4th 648, 113
Cal.Rptr.2d 338 (2001), declining, on First
Amendment grounds, to issue a preliminary injunction under state trade secrets
law prohibiting a web site operator from posting DeCSS. To the extent that DVD Copy Control
disagrees with our First Amendment analysis, we decline to follow it.
2. Linking
[24] In considering linking, we need to clarify the sense in
which the injunction prohibits such activity.
Although the injunction defines several terms, it does not define
"linking." Nevertheless, it
is evident from the District Court's opinion that it is concerned with
"hyperlinks," Universal
I,
111 F.Supp.2d at 307; see id.
at 339.
[FN30] A
hyperlink is a cross-reference (in a distinctive font or color) appearing on
one web page that, when activated by the point-and-click of a mouse, brings
onto the computer screen another web page.
The hyperlink can appear on a screen (window) as text, such as the
Internet address ("URL") of the web page being called up or a word or
phrase that identifies the web page to be called up, for example, "DeCSS
web site." Or the hyperlink can
appear as an image, for example, an icon depicting a person sitting at a
computer watching a DVD movie and text stating "click here to access DeCSS
and see DVD movies for free!" The
code for the web page containing the hyperlink includes a computer instruction
that associates the link with the URL of the web page to be accessed, such that clicking on the hyperlink
instructs the computer to enter the URL of the desired web page and thereby
access that page. With a hyperlink on a
web page, the linked web site is just one click away. [FN31]
FN30.
"Hyperlinks" are also called "hypertext links" or
"active links."
FN31.
"Linking" not accomplished by a hyperlink would simply involve the
posting of the Internet address ("URL") of another web page. A "link" of this sort is sometimes
called an "inactive link."
With an inactive link, the linked web page would be only four clicks away,
one click to select the URL address for copying, one click to copy the address,
one click to "paste" the address into the text box for URL addresses,
and one click (or striking the "enter" key) to instruct the computer
to call up the linked web site.
*456 In applying the DMCA to linking
(via hyperlinks), Judge Kaplan recognized, as he had with DeCSS code, that a
hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address
of the linked web page, and has the functional capacity to bring the content of
the linked web page to the user's computer screen (or, as Judge Kaplan put it,
to "take one almost instantaneously to
the desired destination." Id.). As he had ruled with respect to DeCSS code,
he ruled that application of the DMCA to the Defendants' linking to web sites
containing DeCSS is content-neutral because it is justified without regard to
the speech component of the hyperlink. Id.
The linking prohibition applies whether or not the hyperlink contains any
information, comprehensible to a human being, as to the Internet address of the
web page being accessed. The linking
prohibition is justified solely by the functional capability of the hyperlink.
Applying the O'Brien/Ward/Turner
Broadcasting requirements for content-neutral regulation, Judge Kaplan then
ruled that the DMCA, as applied to the Defendants' linking, served substantial
governmental interests and was unrelated to the suppression of free
expression. Id. We agree. He then carefully considered the
"closer call," id., as to whether a linking prohibition would
satisfy the narrow tailoring requirement.
In an especially carefully considered portion of his opinion, he
observed that strict liability for linking to web sites containing DeCSS would
risk two impairments of free expression.
Web site operators would be inhibited from displaying links to various
web pages for fear that a linked page might contain DeCSS, and a prohibition on
linking to a web site containing DeCSS would curtail access to whatever other
information was contained at the accessed site.
Id. at 340.
To avoid applying the DMCA in a manner that
would "burden substantially more speech
than is necessary to further the government's legitimate interests," Turner
Broadcasting,
512 U.S. at 662, 114 S.Ct. 2445 (internal
quotation marks and citation omitted), Judge Kaplan adapted the standards of New
York Times Co. v. Sullivan,
376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to fashion a limited prohibition against linking to web
sites containing DeCSS. He required
clear and convincing evidence
that those responsible for the link (a) know at the
relevant time that the offending material is on the linked-to site, (b) know
that it is circumvention technology that may not lawfully be offered, and (c)
create or maintain the link for the purpose of disseminating that technology.
Universal
I,
111 F.Supp.2d at 341. He then found that the evidence satisfied
his three-part test by his required standard of proof. Id.
In response to our post-argument request for
the parties' views on various issues, including specifically Judge Kaplan's
test for a linking prohibition, the Appellants replied that his test was
deficient for not requiring proof of intent to cause, or aid or abet, harm, and
that the only valid test for a linking prohibition would be one that could
validly apply to the publication in a print medium of an address for obtaining
prohibited material. Supplemental Brief
for Appellants at 14. The Appellees and
the Government accepted*457 Judge Kaplan's criteria for purposes of
asserting the validity of the injunction as applied to the Appellants, with the
Government expressing reservations as to the
standard of clear and convincing evidence.
Supplemental Brief for Appellees at 22-23; Supplemental Brief for Government at 19-21.
Mindful of the cautious approach to First
Amendment claims involving computer technology expressed in Name.Space,
202 F.3d at 584 n. 11, we see no need on this
appeal to determine whether a test as rigorous as Judge Kaplan's is required to
respond to First Amendment objections to the linking provision of the
injunction that he issued. It suffices
to reject the Appellants' contention that an intent to cause harm is required
and that linking can be enjoined only under circumstances applicable to a print
medium. As they have throughout their
arguments, the Appellants ignore the reality of the functional capacity of
decryption computer code and hyperlinks to facilitate instantaneous
unauthorized access to copyrighted materials by anyone anywhere in the world.
Under the circumstances amply shown by the record, the injunction's linking
prohibition validly regulates the Appellants' opportunity instantly to enable
anyone anywhere to gain unauthorized access to copyrighted movies on DVDs. [FN32]
FN32. We acknowledge
that the prohibition on linking restricts more than Corley's ability to
facilitate instant access to DeCSS on linked web sites; it also restricts his ability to facilitate
access to whatever protected speech is available on those sites. However, those who maintain the linked sites can instantly make their
protected material available for linking by Corley by the simple expedient of
deleting DeCSS from their web sites.
At oral argument, we asked the Government
whether its undoubted power to punish the distribution of obscene materials
would permit an injunction prohibiting a newspaper from printing addresses of
bookstore locations carrying such materials.
In a properly cautious response, the Government stated that the answer
would depend on the circumstances of the publication. The Appellants' supplemental papers
enthusiastically embraced the arguable analogy between printing bookstore
addresses and displaying on a web page links to web sites at which DeCSS may be
accessed. Supplemental Brief for
Appellants at 14. They confidently
asserted that publication of bookstore locations carrying obscene material
cannot be enjoined consistent with the First Amendment, and that a prohibition
against linking to web sites containing DeCSS is similarly invalid. Id.
Like many analogies posited to illuminate
legal issues, the bookstore analogy is helpful primarily in identifying
characteristics that distinguish it from the context of the pending
dispute. If a bookstore proprietor is
knowingly selling obscene materials, the evil of distributing such materials
can be prevented by injunctive relief against the unlawful distribution (and similar distribution by others can be deterred
by punishment of the distributor). And
if others publish the location of the bookstore, preventive relief against a
distributor can be effective before any significant distribution of the
prohibited materials has occurred. The
digital world, however, creates a very different problem. If obscene materials are posted on one web
site and other sites post hyperlinks to the first site, the materials are
available for instantaneous worldwide distribution before any preventive
measures can be effectively taken.
This reality obliges courts considering First
Amendment claims in the context of the pending case to choose between two
unattractive alternatives: either
tolerate some impairment of communication in order *458 to permit
Congress to prohibit decryption that may lawfully be prevented, or tolerate
some decryption in order to avoid some impairment of communication. Although the parties dispute the extent of
impairment of communication if the injunction is upheld and the extent of
decryption if it is vacated, and differ on the availability and effectiveness
of techniques for minimizing both consequences, the fundamental choice between
impairing some communication and tolerating decryption cannot be entirely
avoided.
In facing this choice, we are mindful that it
is not for us to resolve the issues of public policy implicated by the choice
we have identified. Those issues are
for Congress. Our task is to determine
whether the legislative solution adopted by
Congress, as applied to the Appellants by the District Court's injunction, is
consistent with the limitations of the First Amendment, and we are satisfied
that it is.
IV. Constitutional Challenge Based on Claimed
Restriction of Fair Use
[25] Asserting that fair use "is rooted in and required by
both the Copyright Clause and the First Amendment," Brief for Appellants
at 42, the Appellants contend that the DMCA, as applied by the District Court,
unconstitutionally "eliminates fair use" of copyrighted
materials, id. at 41 (emphasis added).
We reject this extravagant claim.
[26] Preliminarily, we note that the Supreme Court has never
held that fair use is constitutionally required, although some isolated
statements in its opinions might arguably be enlisted for such a
requirement. In Stewart
v. Abend,
495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990), cited by the Appellants, the Court merely noted that fair use "
'permits courts to avoid rigid application of the copyright statute when, on
occasion, it would stifle the very creativity which that law is designed to foster,'
" id. (quoting Iowa
State University Research Foundation, Inc. v. American Broadcasting Cos.,
621 F.2d 57, 60 (2d Cir.1980)); see also Harper
& Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (noting "the First Amendment protections already
embodied in the Copyright Act's distinction between copyrightable expression
and uncopyrightable facts and ideas, and the
latitude for scholarship and comment traditionally afforded by fair
use"). In Campbell
v. Acuff-Rose Music, Inc.,
510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), the Court observed, "From the infancy of copyright protection,
some opportunity for fair use of copyrighted materials has been thought necessary
to fulfill copyright's very purpose, '[t]o promote the Progress of Science and
useful Arts....' " [FN33] Id.
at 575, 114 S.Ct. 1164 (citation omitted); see generally William F. Patry, The
Fair Use Privilege in Copyright Law 573-82 (2d ed. 1995) (questioning First
Amendment protection for fair use).
FN33. Although we
have recognized that the First Amendment provides no entitlement to use
copyrighted materials beyond that accorded by the privilege of fair use, except
in "an extraordinary case," Twin
Peaks Productions, Inc. v. Publications International, Ltd.,
996 F.2d 1366, 1378 (2d Cir.1993), we have not
ruled that the Constitution guarantees any particular formulation or minimum
availability of the fair use defense.
We need not explore the extent to which fair
use might have constitutional protection, grounded on either the First
Amendment or the Copyright Clause, because whatever validity a constitutional
claim might have as to an application of the DMCA that impairs fair use of
copyrighted materials, such matters are far
beyond the *459 scope of this lawsuit for several reasons. In the first place, the Appellants do not
claim to be making fair use of any copyrighted materials, and nothing in the
injunction prohibits them from making such fair use. They are barred from trafficking in a
decryption code that enables unauthorized access to copyrighted materials.
Second, as the District Court properly noted,
to whatever extent the anti-trafficking provisions of the DMCA might prevent
others from copying portions of DVD movies in order to make fair use of them,
"the evidence as to the impact of the anti-trafficking provision[s] of the
DMCA on prospective fair users is scanty and fails adequately to address the
issues." Universal
I,
111 F.Supp.2d at 338 n. 246.
[27][28] Third, the Appellants have provided no support for their
premise that fair use of DVD movies is constitutionally required to be made by
copying the original work in its original format. [FN34] Their examples of
the fair uses that they believe others will be prevented from making all
involve copying in a digital format those portions of a DVD movie amenable to
fair use, a copying that would enable the fair user to manipulate the digitally
copied portions. One example is that of
a school child who wishes to copy images from a DVD movie to insert into the
student's documentary film. We know of
no authority for the proposition that fair use, as protected by the Copyright
Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the
original. Although the Appellants
insisted at oral argument that they should not be relegated to a "horse
and buggy" technique in making fair use of DVD movies, [FN35] the DMCA does not impose even an arguable limitation on
the opportunity to make a variety of traditional fair uses of DVD movies, such
as commenting on their content, quoting excerpts from their screenplays, and
even recording portions of the video images and sounds on film or tape by
pointing a camera, a camcorder, or a microphone at a monitor as it displays the
DVD movie. The fact that the resulting
copy will not be as perfect or as manipulable as a digital copy obtained by
having direct access to the DVD movie in its digital form, provides no basis
for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by
quoting selected lines of dialogue has no constitutionally valid claim that the
review (in print or on television) would be technologically superior if the
reviewer had not been prevented from using a movie camera in the theater, nor
has an art student a valid constitutional claim to fair use of a painting by
photographing it in a museum. Fair use
has never been held to be a guarantee of access to copyrighted material in
order to copy it by the fair user's preferred technique or in the format of the
original.
FN34. As expressed
in their supplemental papers, the position of the Appellants is that "fair use extends to
works in whatever form they are offered to the public," Supplemental Brief
for Appellants at 20, by which we understand the Appellants to contend not
merely that fair use may be made of DVD movies but that the fair user must be
permitted access to the digital version of the DVD in order to directly copy
excerpts for fair use in a digital format.
FN35. In their
supplemental papers, the Appellants contend, rather hyperbolically, that a
prohibition on using copying machines to assist in making fair use of texts
could not validly be upheld by the availability of "monks to scribe the
relevant passages." Supplemental
Brief for Appellants at 20.
Conclusion
We have considered all the other arguments of
the Appellants and conclude that *460 they provide no basis for
disturbing the District Court's judgment.
Accordingly, the judgment is affirmed.
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY,
also known as Emmanuel Goldstein and 2600 Enterprises Inc.,
Defendants-Appellants, Shawn C. REIMERDES and Roman Kazan, Defendants., 2000 WL
33988810 (Appellate Brief) (C.A.2 2000), Brief
for Plaintiffs-Appellees
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, A/K/A Emmanuel
Goldstein and 2600 Enterprises Inc., Defendants-Appellants, Shawn C. REIMERDES
and Roman Kazan, Defendants., 2001 WL 34106428
(Appellate Brief) (C.A.2 January 26, 2001), Brief of Amici Curiae Professor
Yochai Benkler and Professor Lawrence Lessig In Support of Appellants and
Reversal of the Judgment Below
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, a/k/a Emmanuel
Goldstein and 2600 Enterprises, Inc. Defendants-Appellants, Shawn C. REIMERDES,
Roman Kazan, Defendants., 2001 WL 34106429 (Appellate
Brief) (C.A.2 January 26, 2001), Brief of Amici Curiae Ernest Miller; Dr. Siva
Vaidhy anathan; Mary Wallace Davidson; Christina Olson Spiesel In Support of
Appellants and Reversal of the Judgment Below
•UNIVERSAL
CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, also known as Emmanuel
Goldstein and 2600 Enterprises Inc., Defendants-Appellants, Shawn C. REIMERDES and
Roman Kazan, Defendants., 2001 WL 34106430
(Appellate Brief) (C.A.2 January 26, 2001), Brief of Amici Curiae Dr. Steven
Bellovin; Dr. Matt Blaze; Dr. Dan Boneh; Mr. Dave Del Torto; Dr. Ian Goldberg;
Dr. Bruce Schneier; Mr. Frank Andrew Stevenson; Dr. David Wagner in Support of
Appellants and Reversal of the Judgment Below
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, also known as Emmanuel
Goldstein and 2600 Enterprises Inc., Defendants-Appellants, Shawn C. REIMERDES
and Roman Kazan, Defendants., 2001 WL 34105192
(Appellate Brief) (C.A.2 January 27, 2001), Brief of DVD Copy Control
Association, Inc., As Amicus Curiae, in Support of Appellees and Affirmation of
Judgment Below
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY aka Emmanuel Goldstein
and 2600 Enterprises, Inc., Defendants-Appellants, Shawn C. REIMERDES, Roman
Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL 34105194 (Appellate Brief) (C.A.2 February 1, 2001), Brief Amicus
Curiae of Intellectual Property Law Professors in Support of
Defendants-Appellants, Supporting Reversal
•UNIVERSAL CITY
STUDIOS, INC.; Paramount Pictures Corporation; Metro-Goldwyn-Mayer Studios
Inc.; Tri-Star Pictures, Inc.; Columbia Picture Industries, Inc.; Time Warner
Entertainment Co., L.P.; Disney Enterprises, Inc.; and Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, a/k/a Emmanuel
Goldstein and 2600 Enterprises, Inc., Defendants-Appellants; Shawn C.
REIMERDES, Roman Kazan, Defendants., 2001 WL 34105522 (Appellate Brief)
(C.A.2 February 1, 2001), Brief of Amici Curiae American Civil Liberties Union,
American Library Association, Association for Research Libraries, Music Library
Association, National Association of Independent Schools, Electronic Privacy
Information Center, and Computer and Co
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiff - Appellees, v. Eric CORLEY, also known as Emmanuel
Goldstein and 2600 Enterprises Inc., Defendant - Appellants, Shawn C.
REIMERDES, Roman Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL 34106437 (Appellate Brief) (C.A.2 February 1, 2001), Brief Amicus
Curiae of Arnold G. Reinhold, an Author and Cryptographer, in Support of
Defendant-Appellant 2600 Enterprises and Reversal of the Judgement Below
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, A/K/A Emmanuel
Goldstein and 2600 Enterprises, Inc., Defendants-Appellants, Shawn C.
REIMERDES, Roman Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL 34106438 (Appellate Brief) (C.A.2 February 1, 2001), Brief of Amici Curiae Dr. Harold Abelson; Dr. Andrew
W. Appel; Dr. Dan Boneh; Dr. Edward W. Felten; Dr. Robert Harper; Mr. Andy
Hertzfeld; Dr. Brian Kernighan; Dr. Marvin Minsky; Dr. James Morris; Dr. P.J.
Plauger; Dr. John C. Reynolds; Dr. Ronald Ri
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios,
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company L.P., Disney Enterprises Inc., Twentieth Century Fox Film
Corporation, Plaintiffs-Appellees, v. Eric CORLEY, also known as Emmanuel
Goldstein, and 2600 Enterprises Inc., Defendants-Appellants, Shawn C.
REIMERDES, Roman Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL 34124772 (Appellate Brief) (C.A.2 February 19, 2001), Brief for
Intervenor United States of America
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro-Goldwyn-Mayer Studios
Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century Fox
Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, also known as Emmanuel
Goldstein and 2600 Enterprises Inc., Defendants-Appellants, Shawn C. REIMERDES
and Roman Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL 34108902 (Appellate Brief) (C.A.2 February 20, 2001), Brief for
Plaintiffs-Appellees
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro- Goldwyn-Mayer
Studios Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time
Warner Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century
Fox Film Corporation, Plaintiff-Appellees, v. Eric CORLEY, a/k/a Emmanuel
Goldstein and 2600 Enterprises, Inc., Defendants-Appellants, Shawn C.
REIMERDES, Roman Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL 34106441 (Appellate Brief) (C.A.2 February 27, 2001), Brief Amicus
Curiae In Support of Plaintiff-Appellees and Affirmance of Law Professors
Rodney A. Smolla, Erwin Chemerinsky, Kenneth L. Karst, and Marcy Strauss
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corp., Metro-Goldwyn-Mayer Studios, Inc.,
Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time Warner
Entertainment Company, L(2)27P., Disney Enterprises Inc., Twentieth Century Fox
Film Corp., Plaintiffs/Appellees, v. Eric CORLEY, a/k/a Emmanuel Goldstein and
2600 Enterprises, Inc., Defendants/Appellants, Shawn C. Reimerdes, Roman Kazan,
Defendants, United States of America,, 2001 WL 34105523 (Appellate Brief) (C.A.2 March 2, 2001), Brief of Amici
Curiae Recording Industry Association of America (RIAA); American Federation of
Musicians of the United States and Canada (AFM); American Federation of
Television and Radio Artists (AFTRA); American Film Marketing Association
(AFMA); A
•UNIVERSAL CITY
STUDIOS, INC., Paramount Pictures Corporation, Metro- Goldwyn-Mayer
Studios Inc., Tristar Pictures, Inc., Columbia Pictures Industries, Inc., Time
Warner Entertainment Company, L.P., Disney Enterprises Inc., Twentieth Century
Fox Film Corporation, Plaintiffs-Appellees, v. Eric CORLEY, also known as
Emmanuel Goldstein and 2600 Enterprises Inc., Defendants-Appellants, Shawn C.
REIMERDES and Roman Kazan, Defendants, UNITED STATES OF AMERICA,, 2001 WL
34105529 (Appellate Brief) (C.A.2 March 19,
2001), Reply Brief for Defendants-Appellants
273 F.3d 429, 2001 Copr.L.Dec. P 28,345, 2002
Copr.L.Dec. P 28,381, 60 U.S.P.Q.2d 1953
END OF
DOCUMENT