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 90.1(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 90.1(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 90(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 90.1(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 90.1(1)
Software programs qualify as
"speech" for First Amendment purposes even though they instruct
computers.
[13] Constitutional
Law 90(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 90(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 90(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 90(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 90(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 90.1(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 90.1(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 90.1(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 90(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 90(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 90.1(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. Rheinhold, 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 their web site and from knowingly linking *435
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
technology *436 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.
Decryption in the case of CSS requires a set of "player *437
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.
II.
DeCSS
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 just like any *438 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 absence of which *439
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).
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 aclimate 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.
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
clearly and 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'nv. 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 contains 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.
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