March 7, 2000
VIA HAND DELIVERY
The Honorable Robert N. Chatigny
United States District Court
District of Connecticut
450 Main Street
Hartford, Connecticut 06103Re: Universal City Studios, Inc. et al. v. Hughes
Case No. 300CV72 RNC
This office represents the defendant Jeraimee Hughes. Pursuant to § (b) of the Court’s Standing Order on Pretrial Deadlines, Mr. Hughes hereby respectfully submits this prefiling letter requesting a conference prior to the filing of F.R.C.P. 17 and F.R.C.P. 12(b) motions by Mr. Hughes. The nature of the proposed motions and a brief summary of the basis for each motion are set forth below. We ask that the Court kindly note that in several cases, there is more than one basis for a motion under the same Rule.
The complaint in this matter was filed by plaintiffs on or about January 14, 2000. Defendant filed a Motion for Extension of Time to file an answer or otherwise reply on February 3, 2000, which Motion was granted by the Court on February 7, 2000.
The plaintiffs in this action are the eight major motion picture studios in the United States. Mr. Hughes is alleged to be an operator and content provider of the ct2600 website. Complaint at ¶ 6. Plaintiffs allege that defendant posted the decryption code to DVD discs on his website in violation of the the Digital Millenium Copyright Act ("DMCA") 12 U.S.C. § 1201 et seq., and more specifically, 17 U.S.C. § 1201(a)(2). Plaintiffs engage in the business of producing, manufacturing and distributing motion pictures. The relevant medium within which the motions pictures are distributed is digital versatile discs ("DVDs"). The plaintiffs claim that they adopted a technological measure, the contents scramble system ("CSS") in order to provide "security" to the copyrighted contents of DVD discs. The DVD discs contain encryption "keys" that can only be unlocked or decrypted by licensed DVD playback devices. It should be noted that such devices can be found not only free-standing, as in a home entertainment system, but also in personal computers. Plaintiffs further aver that "all members of the DVD industry, including software and hardware manufactures of DVD players, DVD replicators and the content providers -- the motion picture studios -- adopted CSS as direct licensees or by contracting CSS through direct licensees." Compliant at ¶ 18. To license the CSS technology, the members of the DVD industry created the DVD Copy Control Association, Inc. ("DVD CCA") to be the owner of the CSS license.
In October of 1999, a Norwegian individual decrypted the CSS encryption scheme. He did so, as is more fully described herein, in order to allow his lawfully purchased DVD disc to play on his "Linux"-run computer. "Linux" is a computer operating system that has been independently developed openly on the Internet by individuals seeking an alternative to the "Windows" computer operating system, which many feel is full of operating flaws or "bugs." When DVD discs began to enter commerce, however, Linux operators found they could not fully "play" the DVD discs on their Linux computers. This was an "interoperability" problem -- one type of technology introduced into commerce could not communicate with another technology. Ultimately, a portion of the CSS encryption technology was reverse-engineered to allow Linux-based system users to play DVD discs. That solution was called "DeCSS" for decryption of CSS. There has been no piracy or unauthorized copying of DVD discs, and indeed, plaintiffs allege none.
The Norwegian individual then posted his solution to the interoperability problem on the Internet, and that information was eventually picked up by website operators and other individuals in the United States. The DVD CCA and later the eight plaintiffs herein subsequently brought two suits, captioned below, in California and New York, seeking to prevent the posting of DeCSS on Internet sites.
Mr. Hughes therefore objects to the complaint on various grounds, including but not limited to the fact that the DMCA does not apply to DeCSS, there is a reverse engineering exception to the DMCA, plaintiffs are misusing their copyright, plaintiffs invoke the wrong section of the DMCA, the DMCA is an unconstitutional prior restrain on free speech, and the alleged posting of the DeCSS is protected political speech. Mr. Hughes further objects to the standing of the plaintiffs to bring the within action, and argues that the complaint is deficient on a number of grounds, including, but not limited to failure to bring an action by the real party in interest, failure to join a party needed for a just adjudication, and numerous failures to state a claim upon which relief can be granted.
II. Proposed Motions and Basis for Each Motion:
Plaintiffs, however, have chosen to bring their action under the Digital Millennium Copyright Act ("DMCA") 12 U.S.C. § 1201 et seq., and more specifically, 17 U.S.C. § 1201(a)(2), claiming that by "offering to the public, providing, or otherwise trafficking in DeCSS, defendant has violated the provisions governing circumvention of copyright protection systems" as set forth in the DMCA. Complaint at ¶ 27. Putting aside the issue whether the alleged actions of Mr. Hughes are a violation of any provisions of the DMCA vel non, the fact remains that by bringing an action alleging circumvention of the CSS system, plaintiffs have attempted to bring an action for the benefit of the DVD Copy Control Association, Inc. ("DVD CCA"), the holder of the CSS licence, which is the real party in interest and whose presence is necessary for a just adjudication.
The DVD CCA, organized under § 501(c)(3) of the Internal Revenue Code, is a voluntary organization created by the computer hardware, consumer electronics and motion picture industries to create technological standards for DVD technology. The DVD CCA is the owner of the CSS technology and licenses that technology to the various industries and manufacturers supplying product to those industries. The eight named plaintiffs in the within action are not the owners of the CSS technology they claim has been circumvented, nor are they the only members of the entity owning and licensing the CSS technology. Therefore it is only the DVD CCA which has the arguably protestable interest which plaintiffs allege was affected by Mr. Hughes. It is the DVD CCA that owns the license rights to CSS technology, and the motion picture industry therefore cannot seek to prosecute the rights or another.
The party invoking federal jurisdiction bears the burden of establishing that it has standing, and must "clearly ... allege facts demonstrating that it is a proper party to invoke judicial resolution of the dispute." United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (internal quotation marks and citations omitted). Plaintiffs cannot sustain this burden.
DeCSS is fair use of CSS and the copyright material it protects -- to obtain interoperability for Linux users; it certainly does not constitute copyright infringement. This is consistent with Sony v. Universal City Studios, 464 U.S. 417 (1984) (sale of copying equipment for video tapes does not constitute contributory copyright infringement if the product is widely used for legitimate purposes), and analogous to Sega v. Accolade, 977 F.2d 510, 527-28 (9th Cir. 1993) (the disassembly of copyrighted object code is fair use of copyrighted work if such disassembly provides the only means of access to that copyrighted code and copier has a legitimate for seeking access). This fair use argument we make here is also strongly analogous to Sony Computer Entertainment, Inc. v. Connectix Corp., No. 99-15852 (9th Cir. Feb 10, 2000) (reverse engineering by copying functional elements of programming to create alternative playback platform for computer game constitutes fair use).
Defendant’s reading of "fair use" is likewise consistent with the DMCA framers’ expressed intent, to wit: 17 U.S.C. § 1201(c)(1) provides that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." See also S.Rep.No. 105-190 at 25 (1998): "[The provisions of subsection (d)] are intended to ensure that none of the provisions in section 1201 affect the existing legal regime established by the Copyright Act and case law interpreting that statute." For this reason as well, plaintiffs fail to state a claim upon which relief can be granted.
DeCSS was developed by a user of the "Linux" computer operating system, a consumer co computer operating system developed on the Internet and effectively "owned" by the community of its users, many of whom contributed towards its development. Linux was independently developed as an alternative the omnipresent "Windows" operating system owned and licensed by Microsoft Corporation, which Windows program, in the opinion of many, contains many errors and "bugs" making it undesirable. With the advent of DVD technology, however, Linux users discovered that they could not fully "play" lawfully obtained DVD discs, which they had purchased in commerce, on their computers operating under the Linux system. The CSS technology of the DVD discs would not operate in the Linux environment. This posed a classic interoperability problem -- the manufactures and distributors, in international as well as United States commerce, of a consumer product had not provided for the operation of that product in any operating system but "Windows." The Linux community eventually sought to remedy that problem, and DeCSS was created. Because "[t]he purpose of [1201(f)] is to foster competition and innovation in the computer and software industry" S.Rep.No. 105-190 at 28 (1998), and the DMCA expressly provides for an exception for reverse engineering to solve interoperabilty problems, plaintiffs fail to state a cause of action.
The U.S. Supreme Court has noted that the Internet is one of the most egalitarian mediums invented and one of the greatest democratic tools for the 21st century. Reno v. American Civil Liberties Union, 521 U.S. 844, 851 (1997). The Internet is "the most participatory form of mass speech yet developed - [and] is entitled to the highest protection from governmental intrusion." Id. at 883, 884. The Supreme Court recognized in Reno that the Internet is a "unique and wholly new medium of worldwide human communication" which disseminates "content as diverse as human thought." Id. at 852. Recognizing the need for the highest level of protection from governmental restraints on speech, the Supreme Court likened expression in on-line chat rooms to town criers with voices resonating far from the soap box, and likened expression in newsgroups having characteristics similar to traditional street pamphleteers. Id. at 2344.
In the instant case, plaintiffs seek to protect only private interests, and have not narrowly tailored their requested relief. As such, plaintiff cannot overcome the presumption that the requested prior restraint is unconstitutional. As well, plaintiffs cannot point to any damage caused by defendant’s protected speech. The requested relief therefore has no legitimate purpose, and would serve only to have a chilling effect on free speech in cyberspace.
Further as the hard and soft technology of cyberspace continues to grow exponentially, interoperability issues will continue to proliferate. Consequently, the necessity to decrypt technology and offer solutions to interoperability problems increases as well. Plaintiffs’ requested relief would chill the ability of Internet users to actively pursue, discuss and distribute interoperabilty solutions. This requested relief is not what the framers of the DMCA intended. Furthermore, individuals who do not have the resources to rule out any potential complaints of infringement or misappropriation will be forced to refrain from posting, linking or discussing interoperability problems and solutions on the Internet for fear of lawsuits. Additionally, the removal of links to other web sites (through the injunction) will also effectively restrain any additional speech contained on the linked web site, regardless of whether or not it relates to DeCSS.
The Supreme Court has implied that the doctrine of "patent misuse" applies to copyright infringement actions, approving a lower court's borrowing of the patent misuse doctrine to invalidate a "block-booking" arrangement whereby the holder of copyrights in certain films conditioned the granting of licenses to show the film upon the purchase or rental of other non- copyrighted films. U.S. v. Paramount Pictures, 68 S.Ct. 915, 92 L.Ed. 1260, 77 U.S.P.Q. 243 (1948). Defendant’s argument is therefore consistent with the principle that a copyright holder cannot seek to artificially enlarge its copyright by conditioning use of its copyrighted materials (the motion picture itself) on the purchase of other copyrighted materials (CSS), for that reason that it "adds to the monopoly of a single copyrighted picture that of another copyrighted picture which must be taken and exhibited in order to secure the first. That enlargement of the monopoly of the copyright was condemned below in Paramount, in reliance on that principle. See Ethyl Gasoline Corporation v. United States, 309 U.S. 436, 459, 60 S.Ct. 618, 626, 84 L.Ed. 852; Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 491, 62 S.Ct. 402, 404, 86 L.Ed. 363; Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 665, 64 S.Ct. 268, 271, 88 L.Ed. 376. In following this reasoning, the Court below in U.S. v. Paramount, supra, enjoined defendants from performing or entering into any license in which the right to exhibit one feature is conditioned upon the licensee's taking one or more other features.
Defendant’s argument here is further supported by the legislative history of the DMCA’s precursor proposed legislation, H.R. 2271. "In its original version, H.R. 2281 contained a provision that would have made it unlawful to circumvent technological protection measures that effectively control access to a work, for any reason. In other words, the bill, if passed, unchanged, would habe given copyright owners the legislative muscle to "lock up" their works in perpetuity unless each and every one of us separately negotiated for access. In short, this provision converted an unobstructed marketplace that tolerates "free access" in some circumstances to a "pay-per-access" system, no exceptions permitted .... In our opinion, this not only stands copyright law on its head, it makes a mockery of our Constitution." 105 H.Rpt. 551, Prt. 2 (July 2, 1998). For this reason as well, Mr. Hughes submits the complaint must be dismissed.
Therefore, defendant Jeraimee Hughes respectfully requests that this Court schedule a prefiling conference, and that after such conference, he be permitted to file the aforesaid motions on the articulated grounds together with more fully developed legal memoranda on the matter.
We thank Your Honor in advance for your courtesies and look forward to working with the Court.
Very truly yours,
CHAPMAN & ASSOCIATES, LLC
AVERY S. CHAPMAN
cc: Robert P. Dolian, Esq., counsel for plaintiffs.