29 November 2001
Source: Electronic files of the Court of Appeals for the Second Circuit, via PACER.

Note: The Court's digital file did not include 36 footnotes which have been derived from the PDF version, inserted and appended here; however, the PDF version has numerous typgraphical errors not in this version:

http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.pdf  (594KB)
http://www.2600.com/news/112801-files/UniversalBrief_3.pdf  (594KB)

See related case files:


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                             August Term 2000

   Argued:  May 1, 2001                    Decided: November 28, 2001

   Finally Submitted: May 30, 2001
                            Docket No. 00-9185
   - - - - - - - - - - - - - - - - - - - - - - - - - -

   ERIC CORLEY, also known as Emmanuel Goldstein,
   and 2600 ENTERPRISES INC.,

   - - - - - - - - - - - - - - - - - - - - - - - - - -

   Before: NEWMAN and CABRANES, Circuit Judges, and THOMPSON,       
           District Judge.
             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
   Appellants from posting on their web site a computer program that
   decrypts the encryption code limiting access to DVD movies, and from
   linking to other web sites containing the decryption program.


                       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
                       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
                       (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, Christo
                         pher 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
                       (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
                       (Arnold G. Rheinhold, Cambridge, Mass.,
                         submitted a brief amicus curiae in support of
                         Defendant-Appellant 2600 Enterprises, Inc.).
                       (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, Stan
                         ford Law School, Stanford, Cal., submitted a
                         brief amici curiae in support of Defendants-
                       (David A. Greene, First Amendment Project,
                         Oakland, Cal.; Jane E. Kirtley, Erik F. Ug-
                         land, 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, Na
                         tional 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, Geoff-  
                         rey 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.).
   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 their web site to any other web site on which
   DeCSS is posted.  Id. at 346-47.  We affirm.


            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.1  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.

            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").2  DeCSS is designed to circumvent "CSS," the encryption
   technology that motion picture studios place on DVDs to prevent the
   unauthorized viewing and copying of motion pictures.  Corley also
   posted on his web site links to other web sites where DeCSS could be

            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.


            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 distribu
   tion 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 encryp
   tion scheme that employs an algorithm configured by a set of "keys"
   to encrypt a DVD's contents.  The algorithm is a type of mathemati
   cal 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 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

            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.3 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.

   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.4 That program was called, appropri-
   ately enough, "DeCSS." 

            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 other computer file.5
   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

            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 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 1984.7 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

            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 DeCSS.  In January 2000, the studios filed
   this lawsuit.8

   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 Limita
   tion Act:  Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on
   Courts and Intellectual Property of the House Comm. on the Judi
   ciary, 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.9 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).

            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 signifi
            cant 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 that effectively controls
            access to a work protected under this title.
   Id. § 1201(a)(2).  To "circumvent a technological measure" is
   defined, in pertinent part, as "to descramble a scrambled work . . .
   or otherwise to . . . bypass . . . a technological measure, without
   the authority of the copyright owner." Id.  1201(a)(3)(A).

            Subsection 1201(b)(1) is similar to subsection 1201(a)(2),
   except that subsection 1201(a)(2) covers those who traffic in
   technology that can circumvent "a technological measure that
   effectively controls access to a work protected under" Title 17,
   whereas subsection 1201(b)(1) covers those who traffic in technology
   that can circumvent "protection afforded by a technological measure
   that effectively protects a right of a copyright owner under" Title
   17. Id. § 1201(a)(2), (b)(1) (emphases added).  In other words,
   although both subsections prohibit trafficking in a circumvention
   technology, the focus of subsection 1201(a)(2) is circumvention of
   technologies designed to prevent access to a work, and the focus of
   subsection 1201(b)(1) is circumvention of technologies designed to
   permit access to a work but prevent copying of the work or some
   other act that infringes a copyright. See S. Rep. No. 105-190, at
   11-12 (1998).  Subsection 1201(a)(1) differs from both of these
   anti-trafficking subsections in that it targets the use of a
   circumvention technology, not the trafficking in such a technology.

            The DMCA contains exceptions for schools and libraries
   that want to use circumvention technologies to determine whether to
   purchase a copyrighted product, 17 U.S.C.  1201(d); individuals
   using circumvention technology "for the sole purpose" of trying to
   achieve "interoperability" of computer programs through reverse-
   engineering, id.  1201(f); encryption research aimed at identifying
   flaws in encryption technology, if the research is conducted to
   advance the state of knowledge in the field, id.  1201(g); and
   several other exceptions not relevant here. 

            The DMCA creates civil remedies, id. § 1203, and criminal
   sanctions, id. § 1204.  It specifically authorizes a court to "grant
   temporary and permanent injunctions on such terms as it deems
   reasonable to prevent or restrain a violation." Id. § 1203(b)(1).

   IV.  Procedural History

            Invoking subsection 1203(b)(1), the Plaintiffs sought an
   injunction against the Defendants, alleging that the Defendants
   violated the anti trafficking provisions of the statute.  On January
   20, 2000, after a hearing, the District Court issued a preliminary
   injunction barring the Defendants from posting DeCSS.  Universal
   City  Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y.

            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 technolog
   ical measure that "effectively controls access to a 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 329,10 and the intermediate scrutiny of
   United States v. O'Brien, 391 U.S. 367, 377 (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-

            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,11 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

            the likelihood . . . that this decision will
            serve notice on others that "the strong right
            arm of equity" may be brought to bear against
            them absent a change in their conduct and thus
            contribute to a climate of appropriate respect
            for intellectual property rights in an age in
            which the excitement of ready access to untold
            quantities of information has blurred in some
            minds the fact that taking what is not yours and
            not freely offered to you is stealing.
    Id. at 345. 

            The Court's injunction barred the Defendants from:
   "posting on any Internet web site" DeCSS; "in any other way . . .
   offering to the public, providing, or otherwise trafficking in
   DeCSS"; violating the anti trafficking provisions of the DMCA in any
   other manner, and finally "knowingly linking any Internet web site
   operated by them to any other web site containing DeCSS, or
   knowingly maintaining any such link, for the purpose of disseminat
   ing DeCSS." Universal II, 111 F. Supp. 2d at 346 47.

            The Appellants have appealed from the permanent injunc-
   tion.   The United States has intervened in support of the constitu-
   tionality 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.   

   I.  Narrow Construction to Avoid Constitutional Doubt

            The Appellants first argue that, because their constitu
   tional 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

            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.13 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.14 See Commodity Futures Trading
   Commission v. Schor, 478 U.S. 833, 841 (1986) (constitutional doubt
   canon "does not give a court the prerogative to ignore the legisla
   tive will").

            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.

            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.15 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.16

            We conclude that the anti-trafficking and anti-circumven
   tion 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

            In a footnote to their brief, the Appellants appear to
   contend that the DMCA, as construed by the District Court, exceeds
   the constitutional authority 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.

            First, we have repeatedly ruled that arguments presented
   to us only in a footnote are not entitled to appellate consider
   ation.  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

            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 uniniti
   ated, and yet both are covered by the First Amendment.  If someone
   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.17 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.

            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 ap
   proaches, 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 (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 (1957) (First Amendment embraces "[a]ll ideas
   having even the slightest redeeming social importance," including
   the "'advancement of truth, science, morality, and arts in gen-
   eral.'" (quoting 1 Journals of the Continental Congress 108
   (1774))); Board of Trustees of Stanford 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 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 (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").

            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,18 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. Dahl-
   strom, 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").19

            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 distin
   guishing 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.20 
   The information conveyed by most "instructions" is how to perform a

            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.21 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.22 Limiting First Amendment
   protection of programmers to descriptions of computer code (but not
   the code itself) would impede discourse among computer scholars,
   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).23

            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 Amend
   ment. Vartuli, 228 F.3d at 111.

            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).24 
   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.

            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;25 Bernstein, 922 F. Supp. at 1434-36; see
   also Bernstein, 176 F.3d at 1140-41; Karn v. United States Depart-
   ment 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.  

            3.  The Scope of First Amendment Protection for Computer

            Having concluded that computer code conveying information
   is "speech" 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 (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 inter
   ests.'" Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662
   (1994) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799

            "[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
   (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. 
   The Supreme Court's approach to determining content-neutrality
   appears to be applicable whether what is regulated is expression,
   see id. at 791-93 (regulation of volume of music), conduct, see
   O'Brien, 391 U.S. at 377, or any "activity" that can be said to
   combine speech and non-speech elements, see Spence v. Washington,
   418 U.S. 405, 410-11 (1974) (applying O'Brien to "activity" of
   displaying American flag hung upside down and decorated with a peace

            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;
   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 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.

            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 instruc
   tions 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, 3.27  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 (1969) ("[D]ifferences in the characteristics of new media
   justify differences in the First Amendment standards applied to
   them." (footnote omitted)).

            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 com
            puter 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 func
            tionality to determine the level of scrutiny, at
            least in this context, is not.
            Society increasingly depends upon techno
            logical 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 opportu
            nity, will bypass security measures, some for
            the sheer joy of doing it, some for innocuous
            reasons, and others for more malevolent pur
            poses.  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 infringe
            ment could be dealt with quite adequately by
            focusing on the infringing act.  If someone
            wished to make and sell high quality but unau
            thorized copies of a copyrighted book, for
            example, the infringer needed a printing press. 
            The copyright holder, once aware of the appear
            ance 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 dissem
            ination of computer programs such as this and
            their illicit use.  Causation in the law ulti
            mately involves practical policy judgments. 
            Here, dissemination itself carries very substan
            tial 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 circum
            vention 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

            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, 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.28 DeCSS enables
   anyone to gain access to a DVD movie without using a DVD player.

            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

            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 constitu
   tional 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 ("[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

	    1. Posting

            The initial issue is whether the posting prohibition is
   content-neutral, since, as we have explained, this classification
   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, 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.

            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. 
   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.

            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 decryp
   tion code that makes a lesser restriction on the code's speech
   component.29 It is true that the 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.30

            2. Linking

            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 339.31  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.32

            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, comprehensi
   ble 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 govern
   ment's legitimate interests," Turner Broadcasting, 512 U.S. at 662
   (internal quotation marks and citation omitted), Judge Kaplan
   adapted the standards of New York Times Co. v. Sullivan, 376 U.S.
   254, 283 (1964), to fashion a limited prohibition against linking to
   web sites containing DeCSS.  He required clear and convincing

            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 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

            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 Appel
   lants' 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.  Supplemen
   tal 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 character
   istics 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 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

            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.

            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 (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 (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 (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 . . . .'"34 Id.
   at 575 (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).

            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 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

            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.

            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.35 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,36 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 techno
   logically 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.


            We have considered all the other arguments of the
   Appellants and conclude that they provide no basis for disturbing
   the District Court's judgment.  Accordingly, the judgment is


  [Endnotes added; derived from footnotes of PDF version.]
  1 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.com/sDefinition/0,,sid33_gci514667,00.html (last updated Aug. 3, 

  2 "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.

  3 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 revenue from movie distribution was attributable to DVD sales and
  rentals. Trial Tr. at 403; Universal I, 111 F. Supp. 2d at 310

  4 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. Schuman).

  5 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 <U>playing of a DVD on an unlicensed
  player. The Defendants' experts insisted that there is nothing about
  the way CSS operates that revents the copying of a DVD. Declaration of Frank
  Stevenson ¶ 23 ("Bit-for-bit copying, which precisely duplicates the
  content of ne 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-
  8; 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
  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.

  6 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.

  7 Defendant 2600 Enterprises, Inc., is the company Corley incorporated to
  run the magazine, maintain the web site, and manage related endeavors like

  8 The lawsuit was filed against Corley, Shawn C. Reimerdes, and Roman Kazan.
  2600 Enterprises, Inc., was later added as 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.

  9 For convenience, all references to the DMCA are to the United State Code

  10 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 28 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).

  11 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.

  [12 Not used.]

  13 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.

  14 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) a circumvention necessary for
  fair use.

  15 This is actually what subsection 1201(a)(3)(A) means when read in conjunction
  with the anti-circumvention provision. 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.
  16 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., Tria1 Tr. at 82.0.

  17 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.

  18 We note that instructions are of varied types. See Vartuli, 228 F.3d at 111. 
  "Orders" from one member of a conspirary 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 t careful and particularized analysis to ensure that no speech 
  emitted to First Amendment protection fails to receive it"); Kent Greenawalt, 
  Speech and Crime, Am. B. Found. Res. J. 645, 743-44 (1980).

  19 These cases almost always concern instruction on how to commit illegal acts. 
  Several courts have conclude 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. , Ric v. Paladin
  Enterprises, Inc. , 128 F.3d 233, 247-49 (4th Cir. 1 97); 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.

  20 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.

  21 However, in the rare case where a human's mental aculties do not intercede 
  in executing the instructions, we have withheld protection. See Vartuli, 228 
  F.3d at 111.

  22 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), reviewed in banc granted and opinion withdrawn, 192 F.3d 
  1308 (9th Cir. 1999).

  23 Reinforcing the conclusion that software program 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. A technology becomes more sophisticated, 
  instructions to other humans will increasingly be executable by computers 
  as well.

  24 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.2d at 111.

  25 The reasoning of Junger has recently been criticized. See Orin S. Kerr, 
  Are We Over Protecting Code? Thought on First-Generation Internet Law, 57 
  Wash. & Lee L. Rev. 1287 (2 00). 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 wi11 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, or example, a 
  padlock, is a good way of communicating how that object works, yet a padlock 
  is not speech. Id. a t 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 
  for 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.

  26 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 .S. at 377. 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 99 (quoting United States v. 
  Albertini , 472 U.S. 675, 689 (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
  Brim, see Turner Broadcasting , 512 U.S. at 662, 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.

  27 This argument is elaborated by some of the amici uriae. "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.

  28 More dramatically, the Government calls DeCSS "a digital crowbar." Brief 
  for Intervenor United States at 19.

  29 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 requirres 
  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 
  Benkle 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 Defendant 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.

  30 We have considered the opinion of a California intermediate appellate 
  court in DVD Copy Control Ass'n v. Bunner, o. H021153, 2001 WL 1340619 
  (Cal. Ct. App., 6th Dist. Nov. 1, 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.

  31 "Hyperlinks" are also called "hypertext links" or "active links."

  32 "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.

  33 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.

  34 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 

  35 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.

  36 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.

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