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:
http://www.eff.org/pub/Intellectual_property/Video/
http://www.2600.com/dvd/docs
http://cryptome.org/cryptout.htm#DVD-DeCSS
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
- - - - - - - - - - - - - - - - - - - - - - - - - -
UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES
CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC., COLUMBIA PICTURES
INDUSTRIES, INC., TIME WARNER ENTERTAINMENT
COMPANY, L.P., DISNEY ENTERPRISES INC., TWENTIETH
CENTURY FOX FILM CORPORATION,
Plaintiffs-Appellees,
v.
ERIC CORLEY, also known as Emmanuel Goldstein,
and 2600 ENTERPRISES INC.,
Defendants-Appellants,
UNITED STATES OF AMERICA,
Intervenor.
- - - - - - - - - - - - - - - - - - - - - - - - - -
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.
Affirmed.
Kathleen Sullivan, Stanford, Cal. (Martin Garbus,
Edward Hernstadt, Frankfurt Garbus Kurnit
Klein & Selz, New York, N.Y.; Cindy A. Cohn,
Lee Tien, Robin Gross, Elec. Frontier Found.,
San Francisco, Cal., on the brief), for
Defendants-Appellants.
Charles S. Sims, New York, N.Y. (Leon P. Gold,
Jon A. Baumgarten, Carla M. Miller, Matthew J.
Morris, Proskauer Rose, New York, N.Y., on the
brief), for Plaintiffs-Appellees.
Daniel S. Alter, Asst. U.S. Atty., New York, N.Y.
(Mary Jo White, U.S. Atty., Marla Alhadeff,
Asst. U.S. Atty., New York, N.Y., on the
brief), for Intervenor United States of
America.
(Prof. Peter Jazsi, Wash. College of Law,
American Univ., Wash., D.C.; Prof. Jessica
Litman, Wayne State Univ., Detroit, Mich.;
Prof. Pamela Samuelson, Univ. of Cal. at
Berkeley, Berkeley, Cal.; Ann Beeson, 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
Technology).
(James S. Tyre, Culver City, Cal., submitted a
brief in support of Defendants-Appellants, for
amici curiae Dr. Harold Abelson et al.).
(Edward A. Cavazos, Gavino Morin, Cavazos,
Morin, Langenkamp & Ferraro, Austin, Tex.,
submitted a brief in support of Defendants-
Appellants, for amici curiae Ernest Miller et
al.).
(Arnold G. Rheinhold, Cambridge, Mass.,
submitted a brief amicus curiae in support of
Defendant-Appellant 2600 Enterprises, Inc.).
(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-
Appellants).
(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.
Introduction
Understanding the pending appeal and the issues it raises
requires some familiarity with technical aspects of computers and
computer software, especially software called "digital versatile
disks" or "DVDs," which are optical media storage devices currently
designed to contain movies.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
found.
Plaintiffs-Appellees are eight motion picture studios that
brought an action in the Southern District of New York seeking
injunctive relief against Corley under the DMCA. Following a full
non-jury trial, the District Court entered a permanent injunction
barring Corley from posting DeCSS on his web site or from knowingly
linking via a hyperlink to any other web site containing DeCSS.
Universal II, 111 F. Supp. 2d at 346-47. The District Court
rejected Corley's constitutional attacks on the statute and the
injunction. Universal I, 111 F. Supp. 2d at 325-45.
Corley renews his constitutional challenges on appeal.
Specifically, he argues primarily that: (1) the DMCA oversteps
limits in the Copyright Clause on the duration of copyright
protection; (2) the DMCA as applied to his dissemination of DeCSS
violates the First Amendment because computer code is "speech"
entitled to full First Amendment protection and the DMCA fails to
survive the exacting scrutiny accorded statutes that regulate
"speech"; and (3) the DMCA violates the First Amendment and the
Copyright Clause by unduly obstructing the "fair use" of copyrighted
materials. Corley also argues that the statute is susceptible to,
and should therefore be given, a narrow interpretation that avoids
alleged constitutional objections.
Background
For decades, motion picture studios have made movies
available for viewing at home in what is called "analog" format.
Movies in this format are placed on videotapes, which can be played
on a video cassette recorder ("VCR"). In the early 1990s, the
studios began to consider the possibility of distributing movies in
digital form as well. Movies in digital form are placed on disks,
known as DVDs, which can be played on a DVD player (either a stand-
alone device or a component of a computer). DVDs offer advantages
over analog tapes, such as improved visual and audio quality, larger
data capacity, and greater durability. However, the improved
quality of a movie in a digital format brings with it the risk that
a virtually perfect copy, i.e., one that will not lose perceptible
quality in the copying process, can be readily made at the click of
a computer control and instantly distributed to countless recipients
throughout the world over the Internet. This case arises out of the
movie industry's efforts to respond to this risk by invoking the
anti-trafficking provisions of the DMCA.
I. CSS
The movie studios were reluctant to release movies in
digital form until they were confident they had in place adequate
safeguards against piracy of their copyrighted movies. The studios
took several steps to minimize the piracy threat. First, they
settled on the DVD as the standard digital medium for home 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
drive.
With encryption technology and licensing agreements in
hand, the studios began releasing movies on DVDs in 1997, and DVDs
quickly gained in popularity, becoming a significant source of
studio revenue.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
patience).6
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
308-09.
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.
2000).
The Defendants complied with the preliminary injunction,
but continued to post links to other web sites carrying DeCSS, an
action they termed "electronic civil disobedience." Universal I,
111 F. Supp. 2d at 303, 312. Under the heading "Stop the MPAA
[(Motion Picture Association of America)]," Corley urged other web
sites to post DeCSS lest "we . . . be forced into submission." Id.
at 313.
The Plaintiffs then sought a permanent injunction barring
the Defendants from both posting DeCSS and linking to sites
containing DeCSS. After a trial on the merits, the Court issued a
comprehensive opinion, Universal I, and granted a permanent
injunction, Universal II.
The Court explained that the Defendants' posting of DeCSS
on their web site clearly falls within section 1201(a)(2)(A) of the
DMCA, rejecting as spurious their claim that CSS is not a 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-
39.
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.
Discussion
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
interpretation.
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
task.
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
Code
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
(1989)).26
"[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
symbol).
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
Code
In considering the scope of First Amendment protection for
a decryption program like DeCSS, we must recognize that the
essential purpose of encryption code is to prevent unauthorized
access. Owners of all property rights are entitled to prohibit
access to their property by unauthorized persons. Homeowners can
install locks on the doors of their houses. Custodians of valuables
can place them in safes. Stores can attach to products security
devices that will activate alarms if the products are taken away
without purchase. These and similar security devices can be
circumvented. Burglars can use skeleton keys to open door locks.
Thieves can obtain the combinations to safes. Product security
devices can be neutralized.
Our case concerns a security device, CSS computer code,
that prevents access by unauthorized persons to DVD movies. The CSS
code is embedded in the DVD movie. Access to the movie cannot be
obtained unless a person has a device, a licensed DVD player,
equipped with computer code capable of decrypting the CSS encryption
code. In its basic function, 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
material.
At first glance, one might think that Congress has as much
authority to regulate the distribution of computer code to decrypt
DVD movies as it has to regulate distribution of skeleton keys,
combinations to safes, or devices to neutralize store product
security devices. However, despite the evident legitimacy of
protection against unauthorized access to DVD movies, just like any
other property, regulation of decryption code like DeCSS is
challenged in this case because DeCSS differs from a skeleton key in
one important respect: it not only is capable of performing the
function of unlocking the encrypted DVD movie, it also is a form of
communication, albeit written in a language not understood by the
general public. As a communication, the DeCSS code has a claim to
being "speech," and as "speech," it has a claim to being protected
by the First Amendment. But just as the realities of what any
computer code can accomplish must inform the scope of its 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
separately.
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
evidence
that those responsible for the link (a) know at
the relevant time that the offending material is
on the linked-to site, (b) know that it is
circumvention technology that may not lawfully
be offered, and (c) create or maintain the link
for the purpose of disseminating that technology.
Universal I, 111 F. Supp. 2d at 341. He then found that the
evidence satisfied his three-part test by his required standard of
proof. Id.
In response to our post-argument request for the parties'
views on various issues, including specifically Judge Kaplan's test
for a linking prohibition, the Appellants replied that his test was
deficient for not requiring proof of intent to cause, or aid or
abet, harm, and that the only valid test for a linking prohibition
would be one that could validly apply to the publication in a print
medium of an address for obtaining prohibited material. Supplemental
Brief for Appellants at 14. The Appellees and the Government
accepted Judge Kaplan's criteria for purposes of asserting the
validity of the injunction as applied to the Appellants, with the
Government expressing reservations as to the standard of clear and
convincing evidence. Supplemental Brief for Appellees at 22-23;
Supplemental Brief for Government at 19-21.
Mindful of the cautious approach to First Amendment claims
involving computer technology expressed in Name.Space, 202 F.3d at
584 n.11, we see no need on this appeal to determine whether a test
as rigorous as Judge Kaplan's is required to respond to First
Amendment objections to the linking provision of the injunction that
he issued. It suffices to reject the Appellants' contention that an
intent to cause harm is required and that linking can be enjoined
only under circumstances applicable to a print medium. As they have
throughout their arguments, the Appellants ignore the reality of the
functional capacity of decryption computer code and hyperlinks to
facilitate instantaneous unauthorized access to copyrighted
materials by anyone anywhere in the world. Under the circumstances
amply shown by the record, the injunction's linking prohibition
validly regulates the Appellants' opportunity instantly to enable
anyone anywhere to gain unauthorized access to copyrighted movies on
DVDs.33
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
Use
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
materials.
Second, as the District Court properly noted, to whatever
extent the anti-trafficking provisions of the DMCA might prevent
others from copying portions of DVD movies in order to make fair use
of them, "the evidence as to the impact of the anti-trafficking
provision[s] of the DMCA on prospective fair users is scanty and
fails adequately to address the issues." Universal I, 111 F. Supp.
2d at 338 n.246.
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.
Conclusion
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
affirmed.
_____________________
[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,
2001).
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
n.69.
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
files.
While there may be alternative means of extracting a non-encrypted, copyable
movie from a DVD -- for example, by copying the movie along with its encryption
"bit-by-bit," or "ripping" a DVD by siphoning movie file data after CSS has
already been decrypted by a licensed player -- DeCSS is the superior means
of acquiring easily copyable movies, see id. at 342, and in fact,
is recommended by a DVD compression web site as the preferred tool for obtaining
a decrypted DVD suitable for compression and transmission over the Internet,
see id. We acknowledge the complexity and the rapidly changing nature
of the technology involved in this case, but it is clear that the Defendants
have presented no evidence to refute any of these carefully considered findings
by the District Court.
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
merchandising.
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
sections.
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
defense.
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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