10 June 2000. Thanks to Anonymous.

See related files:

http://www.eff.org/pub/Intellectual_property/DVD/
http://cyber.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS

Contents

Reply Memorandum of Law in Further Support of Plaintiffs' Motion to Modify the January 20, 2000 Order of Preliminary Injunction

Reply Memorandum of Law in Opposition to Cross-Motion to Vacate the Preliminary Injunction

Declarations in Further Support of Plaintiffs' Motion to Modify, and in Opposition to Defendants' Cross-Motion to Vacate the Preliminary Injunction

Robert Schumann Declaration (separate file)

Leon Gold Declaration

Franklin Fisher Declaration

Daphne Gronich Declaration

John Hoy Declaration

Bruce Boyden Declaration

Exhibits

[14 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

ARGUMENT

POINT I -- THE RELIEF PLAINTIFFS SEEK IS NOT PROHIBITED BY THE FIRST AMENDMENT

A. Linking To Sites That Post DeCSS Is Unlawful Conduct That May Be Enjoined

B. An Injunction Restraining Providing DeCSS By Linking Does Not Burden Constitutionally-Protected Speech And Is Not Impermissibly Vague

POINT II -- PLAINTIFFS HAVE NOT UNDULY DELAYED THEIR REQUEST TO MODIFY THE EXISTING INJUNCTION

CONCLUSION

TABLE OF AUTHORITIES

CASES

City of Ladue v. Gilleo, 512 U.S. 43 (1994)

Dr. Seuss Enterprises, L.P. v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir.), cert dismissed, 521 U.S. 1146 (1997)

DVD Copy Control Ass'n, Inc. v. McLaughlin, No. VC 786804, 2000 WL 48512 (Sup. Ct. Santa Clara Co. Jan. 21, 2000)

E.G.L. Gem Lab Ltd. v. Gem Quality Institute, Inc., 90 F. Supp. 2d 277 (S.D.N.Y. 2000)

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949)

Hard Rock Cafe Int'l. (USA), Inc. v. Morton, 97 Civ. 9483 (RPP), 1999 WL 701388 (S.D.N.Y. September 9, 1999)

Hoffman Estates v. Flipside, 455 U.S. 489 (1982)

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999)

Jerri-Jo Knitwear, Inc. v. Club Italia, Inc., No. 98 CV 4270 (RO), 2000 WL 420550 (S.D.N.Y. Apr. 17, 2000)

King v. Sllied Vision, Ltd., 807 F. Supp. 300 (S.D.N.Y.) aff'd in part, rev'd in part on other grounds, 976 F.2d 824 (2d Cir. 1992)

Kraft Gen'l Foods, Inc. v. Allied Old English, Inc., 831 F. Supp. 123 (S.D.N.Y. 1993)

OBH, Inc. v. Spotlight Magazine, Inc., 86 F. Supp. 2d 176, 197 (W.D.N.Y. 2000)

Oral-B Labs., Inc. v. Mi-Lor Corp., 810 F.2d 20 (2d Cir. 1987)

Orth-O-Vision v. Home Box Office, 474 F. Supp. 672 (S.D.N.Y. 1979)

Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996)

Reno v. ACLU, 521 U.S. 844 (1997)

SAS Inst., Inc. v. S & H Computer Sys., Inc., 605 F. Supp. 816 (M.D. Tenn. 1985)

Sony Computer Entertainment Am., Inc. v. GameMasters, 87 F. Supp.2d 976, 988 (N.D. Cal. 1999)

Sporty's Farm LLC v. Sportsman's Market, Inc., 202 F.3d 489 (2d Cir. 2000)

Ticketmaster Corp. v. Tickets. Com, Inc., 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. Mar. 27, 2000)

Ty, Inc. v. Publications Int'l, Ltd., 81 F. Supp. 2d 899 (N.D. Ill. 2000)

UMG Recordings, Inc. v. MP3. Com, 92 F. Supp.2d 349 (S.D.N.Y. 2000) (Rakoff, J.)

United States v. Loew's, Inc., 371 U.S. 38 (1962)

United States v. O'Brien, 391 U.S. 367 (1968)

Universal City Studios v. Reimerdes, 82 F. Supp. 2d 211, 222 (S.D.N.Y. 2000)

MISCELLANEOUS

4 Melville B. Nimmer & David Nimmer, Nimmer in Copyright, §14.06[c]

PRELIMINARY STATEMENT

The essential facts entitling plaintiffs to injunctive relief against defendants' linking activities remain undisputed. Defendants do not offer any argument to refute plaintiffs' contentions that (1) linking under the circumstances of this case, to sites that post DeCSS, constitutes "offering to the public" or "providing" an unlawful circumvention device within the meaning of § 1202(a)(2); (2) linking to other sites which post DeCSS is just as effective a DeCSS delivery mechanism as posting, which this Court already has enjoined; and (3) defendants added 313 hyperlinks to their web site between January 20, the date of this Court's Preliminary Injunction Order, and the date of plaintiffs' motion to modify, and still more since then. The vast majority of these hyperlinks allow DeCSS to be downloaded via 2600.com's web site with just a few mouse clicks.¹

____________________

1 See Second Supp. Boyden Decl . ¶4.

These activities are a continuation of defendants' illegal trafficking in DeCSS and a patent attempt to effectively eviscerate the Court's Preliminary Injunction Order. Defendants are actively engaged in soliciting others on the Internet to post DeCSS on their own web sites and to submit those web site locations ("URLs") to the 2600.com web site so that they can then link to, and thereby continue to provide, DeCSS. Defendants are asking this Court to allow them to do through linking what they have been prohibited from doing through posting. The Court should decline the invitation and enforce the clear intent of its Preliminary Injunction Order by prohibiting defendants from offering, providing, or otherwise trafficking in DeCSS, whether through posting or linking.

Defendants seek to avoid injunctive relief on the sole grounds that (1) enjoining linking is an impermissible "restraint on 'pure speech,"' and (2) plaintiffs have unduly delayed bringing this motion (See Def. Mem. at 30). Neither contention has merit. Plaintiffs' motion to enjoin defendants' continued proliferation of DeCSS through linking should be granted.

ARGUMENT

POINT I

THE RELIEF PLAINTIFFS SEEK IS NOT
PROHIBITED BY THE FIRST AMENDMENT

A. Linking To Sites That Post DeCSS Is Unlawful Conduct That May Be Enjoined.²

Plaintiffs' motion to modify the preliminary injunction to enjoin defendants from linking must be viewed in the context of defendants' currently enjoined illegal activities in posting DeCSS. Linking to other sites containing DeCSS is a DeCSS delivery mechanism that is just as effective as posting. That is defendants' purpose. As the Second Circuit recently observed, by using hyperlinks, "[a]n internet user can move from one page to another with just the click of a mouse." Sporty's Farm LLC v. Sportsman 's Mkt., Inc., 202 F.3d 489, 492 (2d Cir. 2000). Moreover, recent case law in this District confirms that a defendant enjoined from engaging in specific conduct on the Internet should not be allowed to subvert a court order by accomplishing the same goal by "linking." See Jerri-Jo Knitwear, Inc. v. Club Italia, Inc., No. 98 CV 4270 (RO), 2000 WL 420550 (S.D.N.Y. Apr. 17, 2000). In Jerri-Jo, defendants had been enjoined from "promoting or advertising" apparel bearing the trademark ENERGIE in the United States, but not in Italy. Defendants maintained two registered web sites in the United States and a third registered in Italy (www.energie.it), which permitted users to view the ENERGIE mark. Although the two domestic sites did not themselves display the infringing matter, through a hyperlink to www.energie.it, the foreign site, defendants enabled users to view the infringing mark.

____________________

2 Defendants' First Amendment arguments are addressed extensively in plaintiffs' memorandum of law in opposition to defendants' cross-motion, filed contemporaneously herewith. See Memorandum of Law in Opposition to Cross-Motion to Vacate the Preliminary Injunction at 27-35. To the extent that defendants' First Amendment arguments are separable, plaintiffs address herein defendants' arguments relating specifically to linking.

Relying on Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996), the court in Jerri-Jo found that defendants' linking activities could be viewed as "advertising" in the United States in violation of the Consent Judgment. Accordingly, it ordered defendants immediately to disable the link from their domestic sites to www.energie.it. Similarly, here, defendants have invited hundreds of other web sites to provide their URLs to 2600.com so that they can continue to provide DeCSS to the public, through linking, in contravention of Section 1201 (a)(2), and in a willful attempt to evade the intent of the Court's injunction.³ This activity constitutes trafficking in or otherwise providing DeCSS to the public, within the meaning of the statute, and should be enjoined.

____________________

3 Defendants' reliance upon Ticketmaster Corp. v. Tickets.Com, Inc., 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. Mar. 27, 2000), in support of the assertion that linking is "permitted" under the Copyright Act, is misplaced. (See Def. Mem. at 29.) Ticketmaster merely held that linking from one site to another does not constitute making a "copy." Id. at $6. That Court did not address the legality of linking as part of an unlawful trafficking activity under the DMCA. Defendants fail to address Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999), where, as here, linking was enjoined as an attempt to sidestep a court order against posting copyrighted material on defendants' web site. Defendants likewise fail to address Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996), another case in which the defendant sought in vain to take advantage of the new Internet technology to circumvent an injunction. See also Hard Rock Cafe Int'l. (USA), Inc. v. Morton, 97 Civ. 9483 (RPP), 1999 WL 701388 (S.D.N.Y. September 9, 1999) (where defendant was previously enjoined from "framing" a third party web site because it violated defendants' licensing agreement with plaintiff, defendant would not be permitted to achieve the same result by linking to another third party site).

Contrary to defendants' assertion, DVD Copy Control Ass 'n, Inc. v. McLaughlin, No. VC 786804, 2000 WL 48512 (Sup. Ct. Santa Clara Co. Jan. 21, 2000), does not support defendants' position here. First, unlike McLaughlin, this case deals with the statutory interpretation of the DMCA's prohibitions against trafficking in circumvention devices or otherwise providing them to the public. Defendants have made no attempt to argue that their calculated linking scheme does not fall, like their posting activities, within the statutory prohibition. Second, although the McLaughlin court apparently believed an injunction against linking was unnecessary because all posting of DeCSS had been prohibited (thereby taking care of all sites posting DeCSS and leaving no sites to link to), id. at *4, the fallacy of such an assumption in the present context is now apparent. Unless enjoined, defendants will continue to traffic in DeCSS through linking, making DeCSS readily available through a convenient central location, and undermine the effectiveness of this Court's preliminary injunction order.⁴

____________________

4 Defendants' "futility" arguments are meritless. (See Def. Mem. at 17.) Obviously, the fact that the illegal decryption device may be obtained elsewhere on the Internet is not a defense to a trafficking violation. See Sony Computer Entertainment Am., Inc. v. GameMasters, 87 F. Supp.2d 976, 988 (N.D. Cal. 1999) (rejecting similar futility argument). Nor have defendants established that most readers' browser software automatically converts a plain text reference into a link. See Second Supp. Schumann Decl. ll 24. Since enjoining linking by these defendants in the United States does not implicate any extraterritorial issue, the Court need not determine whether it has jurisdiction over foreign sites. See Playboy Enters., 939 F. Supp. 1032.

Nor can defendants shield their blatant attempt to skirt the January 20 injunction by comparing themselves to the New York Times or other news-gathering organizations.⁵

____________________

5 In furtherance of this tactic, defendants submit declarations f om researchers (See Appel Decl. ¶¶ 7-11, 17), and even members of the press (see Meislin Decl. ¶¶ 2-4) attempting to establish the efficiency of using hyperlinking for stimulating discussion in the marketplace of ideas. Although Appel states that he has posted and linked to scientific papers and ideas, including a description of the ideas and methods underlying DeCSS (Appel Decl. ¶¶ 6-11)— activities plaintiffs do not seek to enjoin—Appel does not state that he posted DeCSS.

Whether an isolated instance of linking to DeCSS in the course of journalistic activity constitutes "providing" within the meaning of the statute is not in issue here. Fully mindful that this Court had enjoined them from posting DeCSS, defendants are flagrantly exhorting new postings of the utility with the express, stated purpose of getting others to do what this Court forbade. Defendants provide a convenient means for other "posters" to provide their URLs to defendants so that defendants can willfully link to those postings, thereby accomplishing through linking what they are prohibited from doing through posting. These activities constitute unlawful conduct which may be enjoined without running afoul of the First Amendment or the prior restraint doctrine. Universal City Studios v. Reimerdes, 82 F. Supp. 2d 211, 222 (S.D.N.Y. 2000); Hoffman Estates v. Flipside, 455 U.S. 489 (1982); United States v. O'Brien, 391 U.S. 367 (1968); Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949).

Although there is nothing illegal about linking as such, defendants activities do not stop there. To invite the public, as defendants have done here, to circumvent CSS by acquiring a circumvention device by means of a hyperlink on defendants' web site, is to illegally traffic in that device. See Supp. Boyden Decl. ¶ 6 & Ex. B ("Help us fight the MPAA by leafletting and mirroring DeCSS.... [I]t's especially important that as many of you as possible, all throughout the world, take a stand and mirror these files.") The injunction sought by plaintiffs bars—and the DMCA prohibits—only "offering to the public, providing or otherwise trafficking in" DeCSS, not discussion, criticism, conversation or other activities which do not involve providing DeCSS. The focus here is not on speech per se, but on the dissemination of an unlawful decryption device in violation of the DMCA.

The fact that an unlawful decryption device is constructed through elements of "expression" makes it no less enjoinable. Thus, cases relied upon by the defendants such as Reno v. ACLU, 521 U.S. 844 (1997) and City of Ladue v. Gilleo, 512 U.S. 43 (1994), do not advance defendants' cause. No matter how useful the Internet may be as a forum for the free exchange of ideas, unlawful conduct is not shielded from regulation merely because it takes place on line. See, e.g., UMG Recordings, Inc. v. MP3.Com, 92 F. Supp.2d 349 (S.D.N.Y. 2000) (Rakoff, J.) (providing "MP3" files to website users for distribution over the Internet through unauthorized copies of copyrighted recordings rendered defendants liable for copyright infringement). Defendants' reliance on the overall value of the Internet as a forum for discussion is no defense to trafficking in unlawful decryption devices. To the contrary, the ease with which protected material can be distributed on the Internet is the very reason that Congress enacted the DMCA and for courts to be vigilant in protecting intellectual property rights.

B. An Injunction Restraining Providing DeCSS By Linking Does Not Burden Constitutionally-Protected Speech And Is Not Impermissibly Vague.

Defendants' vagueness challenge also fails because their linking activities easily fall within the statutory prohibition of § 1202(a)(2). Universal, 82 F. Supp. 2d at 224; Hoffman Estates, 455 U.S. at 495 (a party who engages in some conduct that is clearly proscribed by the challenged statute cannot complain of the vagueness of the law as applied to the conduct of others). The modification of the injunction sought here will not prohibit any discussion about DeCSS, the DMCA, CSS, or any other type of communication, discussion, or debate; nor will it require any web site to remove commentary or discussion about DeCSS. It will, however, stop defendants' illegal trafficking activities by requiring them to remove links they provided to DeCSS as part of their illegal scheme to traffic in prohibited circumvention technology.

The distinction between enjoining speech and protecting intellectual property rights was recognized in OBH, Inc. v. Spotlight Magazine, Inc., 86 F. Supp. 2d 176, 197 (W.D.N.Y. 2000), in which the court rejected a defendant's argument that its infringing use of a newspaper's trademark as a domain name for the defendant's website was protected by the First Amendment. In enjoining the website operator from further infringement, that court observed:

Plaintiffs do not seek, in any way, to restrain defendants from speech that criticizes The Buffalo News. The sole purpose of the Court's inquiry is to determine whether the use of "The Buffalo News" mark as defendants' domain name for their web site constitutes an infringement of plaintiff's trademark.

Id. at 197. As in OBH, the plaintiffs do not seek to silence defendants or anyone else from discussing DeCSS or any other topic. Defendants' argument that an injunction against linking could expose others to liability "merely for referring to locations where more information may be acquired" (Def. Mem. at 29-30) (emphasis added), is misguided. Defendants' linking activity is not inadvertent, but part of a deliberate scheme. Moreover, defendants are not merely referring others to information, but to sites that contain DeCSS, the vast vast majority of which do not involve even arguable scholarship or research. (Second Supp. Boyden Decl. ¶¶ 4-6.) In any event, the injunction is limited to these defendants and those with notice in active concert and participation with them, and this Court has ample power to enjoin defendants' conduct and shape effective relief against defendants who are engaged in a pattern of evasive and unlawful behavior. As this Court has recently observed, "a court may require an infringer to keep a safe distance away from the margin line and proscribe activities that, standing alone, would have been unassailable."⁶

____________________

6 E.G.L. Gem Lab Ltd. v. Gem Quality Institute, Inc., 90 F. Supp. 2d 277, 309 (S.D.N.Y. 2000) (Kaplan, J.) (internal punctuation omitted), citing Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 705-06 (5th Cir. 1981). See also Oral-B Labs., Inc. v. Mi-Lor Corp., 810 F.2d 20 (2d Cir. 1987) (because district court already found defendant in violation of Lanham Act, the court could legitimately force infringer to keep a "safe distance" from the line drawn by an existing injunction). To ensure effective relief, "otherwise permissible practices connected with the acts found to be illegal must sometimes be enjoined." United States v. Loew 's, Inc., 371 U.S. 38, 53 (1962) (government entitled to enjoin practices under Sherman Act that may be entirely proper when viewed alone).

In addition, defendants' complaint that some links may contain material other than downloadable DeCSS is also misguided. "[S]o long as the injunction itself is narrowly tailored, the fact that the only way to comply with it is to withdraw the offensive work entirely should not give rise to First Amendment problems, to the extent that the defendant itself made the decision to mingle infringing expression inextricably with non-expressive speech."⁷ Having made the decision to solicit and link to hundreds of sites containing DeCSS, it is the burden of these defendants—not plaintiffs and not this Court—to separate out any protected speech activities from trafficking in an unlawful decryption device.⁸

____________________

7 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (hereinafter "Nimmer") § 14.06[c] at 14-124.2; Dr. Seuss Enters., L.P. v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir.), cert dismissed, 521 U.S. 1146 (1997); see also Nimmer at 14-123 ("a product . . . in which the infringement permeates the whole should be wholly enjoined."); Orth-O-Vision v. Home Box Office, 474 F. Supp. 672, 683 n.14 (S.D.N.Y. 1979) ("[W]hen, as here, it is technologically impossible to separate out the infringing material the copyright owner ought not go unprotected.").

8 See, e.g., SAS Inst., Inc. v. S & H Computer Sys., Inc., 605 F. Supp. 816 (M.D. Tenn. 1985).

POINT II

PLAINTIFFS HAVE NOT UNDULY DELAYED
THEIR REQUEST TO MODIFY THE EXISTING INJUNCTION

Defendants have been on notice since January 20 that plaintiffs object to their linking activities and fully expected that plaintiffs would move to have linking enjoined. See Supp. Boyden Decl. Ex. B (defendants' web site states that "we...will continue to update the links as long as we're able to" but must "face the possibility that we could be forced into submission").⁹ Moreover, any purported delay here is fully justified. At the conclusion of the January 20 hearing, the Court invited defendants to seek an early trial and, almost immediately thereafter, plaintiffs initiated a dialogue with each of the defendants' prior counsel in an effort to move the case forward.¹⁰ Plaintiffs' efforts resulted in two of the three defendants—Roman Kazan and Sean Reimerdes—entering into Consent Judgments with the plaintiffs. Those Consent Judgments prohibit Kazan, Reimerdes and their respective companies and web sites from, inter alia, posting DeCSS or linking to any other site posting DeCSS. See Consent Judgment Against Defendant Roman Kazan, so ordered March 17, 2000, ¶ 1; Consent Judgment Against Defendant Shawn C. Reimerdes and Leech Software, Inc., so ordered April 14, 2000, ¶ 1. The 2600 defendants, however, initially were unable to make any commitment about trial or settlement. See Gold Decl. ¶ 4. It was only on March 20, after the Court granted defendants' request to delay the trial until December 2000, that the necessity of a further motion addressing linking became apparent. In fact, at the March 20 conference, in response to defendants' opposition to an early trial date, plaintiffs' counsel raised the issue of defendants' linking activities. Thus, once it was clear that the remaining defendants would neither stop linking nor move forward with a speedy trial, plaintiffs filed this motion two weeks later.

____________________

9 See King v. Allied Vision, Ltd., 807 F. Supp. 300, 306 (S.D.N.Y.) (delay in filing suit did not bar preliminary injunction where defendants were placed on notice of plaintiff's objection to defendant's alleged infringing use of plaintiff's name, and where defendants continued with their course of conduct), aff'd in part, rev'd in part on other grounds, 976 F.2d 824 (2d Cir. 1992). In King, defendants "failed to show that they were prejudiced" by the delay, 807 F. Supp. at 306; here, defendants do not even attempt such a showing. (See Def. Mem. at 16- 17.)

10 See Kraft Gen'l Foods, Inc. v. Allied Old English, Inc., 831 F. Supp. 123, 136 n.12 (S.D.N.Y. 1993) (Leisure, J.) (plaintiff"should not be penalized for any delay arising out of settlement efforts."); see also Ty, Inc. v. Publications Int'l, Ltd., 81 F. Supp. 2d 899 (N.D. III. 2000) (fourteen month delay in seeking injunction was justified in light of on-going settlement discussions).

CONCLUSION

For these reasons, together with the reasons set forth in plaintiffs' moving brief, plaintiffs' motion to modify the injunction should be granted.

DATED: New York, New York
               June 2, 2000

PROSKAUER ROSE LLP By: [Leon Gold Signature] Leon P. Gold (LG-1434) William M. Hart (WH-1604) 1585 Broadway New York, New York 10036 (212) 969-3000 Telephone (212) 969-2900 Facsimile - and - Jon A. Baumgarten (JB-7091) PROSKAUER ROSE LLP 1233 20th Street, N.W., Suite 800 Washington, DC 20036-2396 (202) 416-6800 Telephone (202) 416-6899 Facsimile Attorneys for Plaintiffs

Conversion to HTML by Cryptome.

[43 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

ARGUMENT: DEFENDANTS HAVE NOT ESTABLISHED GROUNDS TO VACATE THE PRELIMINARY lNJUNCTION

I. DEFENDANTS' CROSS-MOTION TO VACATE SHOULD BE DENIED AS IMPERMISSABLE REARGUMENT

II. DEFENDANTS HAVE FAILED TO REBUT THE COURT'S FINDING OF A THREAT OF IRREPARABLE HARM

III. DEFENDANTS' CROSS-MOTION IS AN IMPERMISSIBLE ATTEMPT TO HAVE THIS COURT SUBSTITUTE ITS JUDGMENT ON MATTERS ALREADY CONSIDERED BY CONGRESS IN ITS ENACTMENT OF THE DMCA

IV. DEFENDANTS HAVE FAILED TO REBUT THE COURT'S FINDING OF LIKELIHOOD OF SUCCESS ON THE MERITS

A. Plaintiffs Have Established Prima Facie Violation Of § 1201(a)(2)

1. CSS Is A "Technological Measure That Effectively Controls Access To" Plaintiffs' Copyrighted Works

2. DeCSS Is "Primarily Designed Or Produced For The Purpose Of Circumventing" CSS

3. Defendants "Provided" DeCSS

B. Defendants' Conduct Does Not Fall Within The Express Exemptions Of Sections 1201, And Is Otherwise Indefensible

1. Defendants Cannot Rely On The Statutory "Reverse Engineering" Exception

2. Defendants' Provision Of DeCSS Cannot Be Excused Under The "Fair Use" Doctrine

3. Defendants' Reliance Upon The Sony "Betamax" Case Is Misplaced

4. Defendants' Reliance Upon The First Sale Doctrine Is Misplaced

V. APPLICATION OF THE DMCA TO PROHIBIT DEFENDANT'S UNLAWFUL CONDUCT DOES NOT VIOLATE THE FIRST AMENDMENT

A. The DMCA And This Court's Injunction Properly Prohibit Defendants' Actions As Integral To An Unlawful Course Of Conduct

B. This Court's Injunction Is Not An Unconstitutional Prior Restraint

1. The Prior Restraint Doctrine Does Not Prohibit Disseminating "Speech" If Integral To Unlawful Conduct

2. Defendants' Arguments Do Not Undermine The Analysis Already Undertaken By Congress And The Court

C. The DMCA Is Not Vague Or Overbroad

1. Defendants May Not Assert A "Vagueness" Challenge To The DMCA Because Their Own Conduct Is Clearly Proscribed

2. Defendants Have Failed To Show That The DMCA Prohibits A "Substantial" Amount Of Protected Conduct

CONCLUSION

TABLE OF AUTHORITIES

CASES

Atchison, T. & S. F. R. Co. v. Lennen, 640 F.2d 255 (10th Cir. 1981)

Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991)

Bronx Automobile Mall, Inc. v. American Honda Motor Co., 934 F.Supp. 596 (S.D.N.Y. 1996), aff'd, 113 F.3d 329 (1997)

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

Chicago School Reform Board of Trustees v. Substance, Inc., 79 F.Supp. 2d 919 (N.D. Ill. 2000)

Consolidated Gold Fields, PLC v. Anglo American Corp. of South Africa Ltd., 713 F.Supp. 1457 (S.D.N.Y. 1989)

Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252 (2d Cir. 1988)

Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir. 1979)

Donovan v. Brown Equipment & Service Tools, Inc., 666 F.2d 148 (5th Cir. 1982)

Dr. Seuss Enterprises L.P. v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997)

Fisher-Price, Inc. v. Well-Made Toy Mfg Corp., 25 F.3d 119 (2d Cir. 1994)

Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993)

Giboney v. Empire Storage & Ice Co., 336 U.S. 490(1949)

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

Hillard v. Medtronic, Inc., 910 F.Supp. 173 (M.D. Pa. 1995)

Huk-a-Poo Sportwear Inc. v. Little Lisa, Ltd., 74 F.R.D. 621 (S.D.N.Y. 1977)

Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992)

Illinois Bell Telegraph Co. v. Illinois Commerce Comm., 740 F.2d 566 (7th Cir. 1984)

Inflight Newspapers, Inc. v. Magazines In-Flight, LLC, 990 F.Supp. 119 (E.D.N.Y. 1997)

In re Chicago, Milwaukee, St. Paul & Pacific R. Co., 738 F.2d 209 (7th Cir. 1984)

In re Savers Federal S. & L. Associate, 872 F.2d 963 (11th Cir. 1989)

Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998)

Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)

Lisa B. Inc. v. Reilly Co., No.90 Civ.1583 (KMW), 1991 WL 66894 (S.D.N.Y. Apr.24, 1991)

Lish v. Harper's Magazine, 807 F.Supp. 1090 (S.D.N.Y. 1993)

Los Angeles New Service, Inc. v. Tullo, 973 F.2d 791 (9th Cir. 1992)

Los Angeles Police Department v. United Reporting Publishing Corp., _U.S. _,120 S.Ct. 483 (1999)

Lotus Development Corp. v. Borland International, Inc., 831 F. Supp. 223 (D. Mass. 1993), rev'd on othergrounds, 49 F.3d 807 (1st Cir. 1995), aff'd without op., 516 U.S. 233 (1996)

Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983)

Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505 (2d Cir. 1977)

New York Times Co. v. United States, 403 U.S. 713 (1971)

Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92 (1st Cir. 1997)

North American Specialty Insurance Co. v. Myers, 111 F.3d 1273 (6th Cir. 1997)

Northern Pac. R. Co. v. United States, 356 U.S. 1 (1958)

Peterson v. City of Plymouth, 60 F.3d 469 (8th Cir. 1995)

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973)

RealNetworks, Inc. v. Streambox, Inc., No. 2:99CV02070, 2000 WL 127311 (W.D. Wash. Jan. 18, 2000)

Sanitation and Recycling Industrial, Inc. v. City of New York, 107 F.3d 985 (2d Cir. 1997)

Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970)

Sony Computer Entertainment America, Inc. v. GameMasters, 87 F. Supp. 2d 976 (N.D. Cal. 1999)

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984)

Trailer Train Co. v. State Board of Equalization, 697 F.2d 860 (9th Cir. 1983)

UMG Recordings, 92 F.Supp.2d 349 (S.D.N.Y. 2000)

United States v. Barnett, 667 F.2d 835 (9th Cir. 1982)

United States v. Girard, 601 F.2d 69 (2d Cir. 1979)

United States v. Mendelsohn, 896 F.2d  1183 (9th Cir. 1990)

United States v. O'Brien, 391 U.S. 367 (1968)

United States v. Rowlee, II, 899 F.2d 1275 (2d C. 1990)

Universal City Studios, Inc. v. Reimerdes, 82 F.Supp.2d 211 (S.D.N.Y. 2000)

Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982)

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)

STATUTES

17 U.S.C.§107

17 U.S.C.§109

17 U.S.C.§501

17 U.S.C.§ 1002(a)

17 U.S.C.§ 1201

17 U.S.C. § 1201(a)

17 U.S.C. § 1201(a)(1)

17 U. S . C . § 1201 (a)(2)(a)

17 U.S.C. § 1201(a)(3)(B)

17 U.S.C. § 1201(c)-(j)

17 U.S.C. § 1201(c)

17 U.S.C. § 1201(f)

17 U.S.C. § 1201(f)(3)

17 U.S.C. § 1201(g)(2)

17 U.S.C. § 1203(b)(1)

18 U.S.C. § 642

28 U.S.C. § 1292(a)(1)

Conn. Gen. Stat. Ann. § 53a-106 (1999)

Fed. R. Evid. 702

N.Y. Pen. Law § 140.35

Or. Rev. Stat. § 164.235 (1998)

U.S. Const. Art. I § 8

MISCELLANEOUS

1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 12A. 18 [B]

1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 12A.17[B]

1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 12A.17[B][1]

4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1305[A][4]

144 Cong. Rec. H10615

144 Cong. Rec. H10618

144 Cong. Rec. H7096

144 Cong. Rec. H7097

Jane C. Ginsburg, Copyright Legislation for the "Digital Millennium " 23 Colum.-VLA J.L. & Arts (1999)

H.R. Rep. 105-551 (1998)

H.R. Rep. 106-216, 106th Cong. 1st Sess. (1999)

H.R. Rep. No. 105-796 (1998)

S. Rep. No. 105-190 (1998)

STAFF OF HOUSE OF REPRESENTATIVE COMM. ON THE JUDICIARY, 105TH CONG., 2D SESS., SECTION-BY-SECTION ANALYSIS OF H.R 2281 AS PASSED BY THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998 (Comm. Print 1998)

U.S. Copyright Office, Initial Comments, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 64 F.R. 226 Docket No. RM99-7

WIPO Copyright Treaties Implementation Act: Hearings on H.R. 2281

Wright, Miller & Kane, Federal Practice & Procedure § 6264 (1997 & 1999 Supp.)

PRELIMINARY STATEMENT

Defendants' cross-motion is not just a belated attempt to reargue the January 20 preliminary injunction. It depends on critical misrepresentations of fact and applicable law that are contradicted by the barrage of nineteen declarations on which defendants now rely.

Defendants claim that plaintiffs have not been harmed by the proliferation of DeCSS— particularly because, in defendants' view, there is no evidence of unlawful copying or "commercial piracy" resulting from the use of DeCSS. Defendants ignore that the anti-circumvention laws are intended to create a legal barrier to unauthorized access, as a separate and distinct right from copyright infringement. Irreparable harm should be presumed to result from trafficking in circumvention technology just as it is presumed when a copyright is infringed. Defendants also incorrectly assert that DeCSS does not result in unauthorized copying. In fact, as defendants admit, DeCSS, by its design and function, copies the decrypted DVD movie content onto computer hard drives, without the authority of the copyright owner.

In addition, although proof of copyright infringement is unnecessary to establish a violation of the anti-circumvention laws, defendants ignore the real threat of Internet transmission posed by DeCSS, which clearly constitutes irreparable harm. Inexplicably, defendants offer an interview with Jon Johansen, an alleged creator and poster of DeCSS, in which Johansen freely admits that DeCSS can be used for "piracy":

"Linux World: So, can DeCSS in fact in any way be used for pirating? I mean, realize that isn't the purpose for which it was written.

Jon Johansen: Well, yes, it can be used for pirating. Because you can decrypt a DVD disk and put it on your hard drive and then you can convert it, say, to VCD and then post it on the Internet."

(See DiBona Decl. ¶ 5, Ex. B) (attaching interview with Jon Johanssen).

Internet users are now taking advantage of new technologies, including high ratio compression software, increased Internet bandwidth and a host of"file-sharing utilities." Indeed, since the January 20 hearing, many of these technologies have been thrust into the mainstrearn and establish that the threat to plaintiffs' valuable copyrighted works is real. These new technologies, which are constantly improving, enable millions of computer users to engage in the widespread copying and Internet transmission of unauthorized movie content.¹ DeCSS is the first step in this process. See infra, 9-11. It is not necessary, or even desirable, to copy or "burn" movie content onto a portable disk, such as a DVD or a CD-ROM, to engage in so-called "filesharing." See Second Supplemental Schumann Decl. ¶ 14. All of defendants' arguments concerning the absence of "commercial piracy" and the alleged incompatibility of various disk copying and playback devices are thus beside the point.

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1 See, e.g., Movie pirates hitting prime time (thanks to new compression scheme, f lm piracy thrives on the Net), CNBC & the Wall Street Journal.Business May 10, 2000, Second Supplemental Schumann Decl., Ex. 3, ¶ 6; E-Power to the People; New Software Bypasses Internet Service Providers, Washington Post, May 18, 2000, A1, Second Supp. Schumann Decl., Ex. 6, ¶ 9; DVD "Ripping" Revisited, Toronto Star, May 4, 2000, Second Supp. Schumann Decl., Ex.7, ¶ 10; Cyberspace Programmers Confront Copyright Laws, N.Y. Times, May 10, 2000, A1, Second Supp. Schumann Decl., Ex.2, ¶ 9 As explained in these articles and elsewhere, file sharing is the unauthorized copying and transmission of digital material over the Internet, including copyrighted films.

Defendants' cross-motion revisits arguments and issues that were already presented to, and considered by, Congress in its enactment of the Digital Millennium Copyright Act ("DMCA"). Most of defendants' positions about the need to engage in reverse engineering, cryptographic or other study, or the right to make certain so-called "fair uses" of DVD movie content, were fully addressed before Congress. As this Court already found, defendants do not qualify for any of the statutory exceptions contained in the DMCA. In an effort to have this Court judicially nullify the anti-circumvention provisions of the DMCA, defendants ask this Court to disregard the careful balance already struck by Congress—a balance designed to protect copyrighted works in a digital environment where, as Congress recognized, such works can be copied and distributed worldwide instantaneously.

Ultimately, defendants' motion to vacate is merely a rehash of their earlier, unsuccessful arguments. Defendants' parade of new declarations not only fails to offer anything 'inew," but confirms the soundness of the Court's earlier grant of a preliminary injunction in this case. On the record now before the Court, there is no basis, constitutional or othernvise, for reconsidering defendants' continued proliferation of DeCSS as anything other than a plain violation of the federal prohibitions against trafficking in an unlawful circumvention device.

ARGUMENT

DEFENDANTS HAVE NOT ESTABLISHED GROUNDS
TO VACATE THE PRELIMINARY INJUNCTION

I. DEFENDANTS' CROSS-MOTION TO VACATE SHOULD BE DENIED AS IMPERMISSIBLE REARGUMENT

The Second Circuit has long "disapproved the practice of 'trying to relitigate on a fuller record preliminary injunction issues already decided."' Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1207 (2d Cir. 1970), citing American Optical Co. v. Rayex Corp., 394 F.2d 155 (2d Cir. 1968) (affirming denial of motion to vacate brought four and one-half months after entry of preliminary injunction). The appropriate procedures for challenging a preliminary injunction include appealing the order pursuant to 28 U.S.C. § 1292(a)(1) and proceeding to trial on the merits. 394 F.2d at 155. Additionally, under Local Civil Rule 6.3, a party may move for reargument within ten days.

Defendants have done none of these things. They did not make a timely motion for reargument. They did not file a timely appeal. And they declined the Court's offer of an immediate trial to minimize the duration of the preliminary injunction. (Transcript of Jan. 20, 2000 Hearing, ("Hearing Tr."), at 80.) Indeed, as the Court noted in its discovery-related May 12 Order, defendants did nothing for two months after entry of the preliminary injunction.

Despite their parade of declarations (permeated by impermissible hearsay, speculation and inadmissable legal argument), defendants' arguments are the same ones already rejected by this Court in granting the preliminary injunction.² A defendant may not seek to vacate a preliminary injunction "based on the same assertions as to the merits that it made or could have made before." Lisa B. Inc. v. Reilly Co., No. 90 Civ. 1583 (KMW), 1991 WL 66894 (S.D.N.Y. Apr. 24, 1991) (Wood, J.), citing Huk-A-Poo Sportswear Inc. v. Little Lisa, Ltd., 74 F.R.D. 621, 624 (S.D.N.Y. 1977) (Tenney, J.). A motion to vacate based on new evidence is proper only if the defendant has "truly new evidence" that it could not have found earlier. Semmes Motors, 429 F.2d at 1207 (affirming trial court's finding that defendant "failed to exercise due diligence in not presenting" its evidence earlier); Huk-a-Poo, 74 F.R.D. at 624-25 (denying motion to vacate injunction against copyright infringement). Defendants have no "truly new evidence."

____________________

2 Defendants' argument that Plaintiffs cannot demonstrate irreparable harm was made in their first preliminary injunction brief (at 17- 18) and at oral argument on that motion (Hearing Tr. at 26, 48) and rejected by the Court. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 215 (S.D.N.Y. 2000) (Kaplan, J.).

Defendants' "fair use" argument also was made in their initial preliminary injunction brief (at 12) and at oral argument (Hearing Tr. at 32-35). 82 F. Supp. 2d at 219. The Court found that "fair use" is not a defense to a Section 1201 (a)(2) violation. Id.

Defendants' argument that DeCSS falls within the statutory exception for reverse engineering likewise was made in their original brief opposing the preliminary injunction (at 8-9), and rejected by the Court. 82 F. Supp. 2d at 217-18.

The Court considered and rejected defendants' argument that the owners of copyrighted material on DVDs authorize the DVD owners' access to that material (Def. Mem. at 22-24), and that CSS does not "effectively control access" to the material (Def. Mem. at 24-26). 82 F. Supp. 2d at 216-17 & n.14 (noting, inter alia, that even a consumer authorized to play DVDs does not have authority to copy them).

Defendants' First Amendment arguments, likewise, were briefed, argued, and rejected in the initial preliminary injunction hearing. 82 F. Supp. 2d at 223-26 (discussing, among other cases, New York Times Co. v. United States. 403 U.S. 713 (1971)).

Defense counsel has already made it plain that the parties and the Court will be faced with a continuing series of motions attacking the preliminary injunction, resulting in endless litigation over the same issues. See Court's Order dated May 12, 2000 at 7. "Strong policy reasons" dissuade courts from letting a party "withhold its objections to a preliminary injunction until such time as it can present the strongest possible case." Huk-a-Poo, 74 F.R.D. at 624. Cf. Consolidated Gold Fields, PLC v. Anglo American Corp. of South Africa Ltd., 713 F. Supp. 1457, 1477 (S.D.N.Y. 1989) (Mukasey, J.) (refusing motion to reargue motion to modify injunction, where "nothing has been offered now that could not have been offered before," and observing that defendant "seeks a rule that would make the scope of a court's preliminary relief the subject of perpetual litigation"). Rather than reward these tactics, the Court should deny the motion to vacate.

II. DEFENDANTS HAVE FALLED TO REBUT THE COURT'S FINDING OF A THREAT OF IRREPARABLE HARM

As this Court held, defendants' trafficking in DeCSS poses the same threat to the plaintiffs' rights as direct copyright infringement. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 215 (S.D.N.Y. 2000) ("In this case, plaintiffs do not allege that defendants have infringed their copyrights, but rather that defendants' offer technology that circumvents their copyright protection system and thus facilitates infringement. For purposes of the irreparable injury inquiry, this is a distinction without a difference."). Thus, irreparable harm should be presumed to occur when the DMCA is violated, just as it is when a copyright is infringed. See 82 F. Supp. 2d at 215; see also Fisher-Price, Inc. v. Well-Made Toy Mfg Corp., 25 F.3d 119, 124 (2d Cir. 1994).³

____________________

3 RealNetworks, Inc. v. Streambox, Inc., No. 2:99CV02070, 2000 WL 127311 (W.D. Wash. Jan. 18, 2000), at *6, does not support defendants' cited proposition that "there can be no presumption of irreparable harm." (Def. Mem. at 15.) The RealNetworks court assumed, without deciding, that a plaintiff who demonstrates a reasonable likelihood of success with respect to a Section 1201 violation "is entitled to a presumption of irreparable harm." Id. at *9 (emphasis added). It also concluded that RealNetworks had amply demonstrated irreparable harm based on the fact that the "VCR circumvents RealNetworks' security measures, and will necessarily undermine the confidence that RealNetworks' existing and potential customers have in those measures," leading to undeterminable losses of customer goodwill. Id. at * 10. The same rationale supports a finding of irreparable harm here.

Stripped to its essence, defendants' argument appears to be that if there is no "piracy," there can be no violation of Section 1201. Defendants offer no support for this argument, either in the plain language of the statute or in its legislative history. Their proposed interpretation of the DMCA would render the circumvention protections illusory, because a copyright holder would not be entitled to assert a circumvention claim absent proof of copyright infringement.

That is not, however, the law or the purpose of Section 1201. Plaintiffs' anti-circumvention claim addresses an independent violation of the Copyright Act, and plaintiffs need not prove infringement to establish a violation of Section 1201. See RealNetworks, 2000 WL 127311 at *6 (noting that plaintiff's claims "arise under Section 1201 of the DMCA, and thus do not constitute copyright 'infringement' claims") (citing 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT (hereinafter, "NIMMER") § 12A.17[B] [1] (Section 1201 of the DMCA occupies "a niche distinct from copyright infringement")). See also Jane C. Ginsburg, Copyright Legislation for the "Digital Millennium, " 23 Colum.-VLA J.L. & Arts 137, 138 (1999) (hereinafter "Ginsburg") ("these violations are distinct from copyright infringement. The violation occurs with the prohibited acts; it is not necessary to prove that the dissemination of circumvention devices resulted in specific infringements."). The legislative history of the DMCA makes clear that Congress intended to provide copyright holders with an entirely new level of protection for their copyrighted works in the digital age—independent of longestablished protection against copyright infringement.⁴

____________________

4 See S. Rep. No. 105-190, at 11 (1998) ("[The anti-circumvention provision of the DMCA] encourages technological solutions, in general, by enforcing private parties' use of technological protection measures with legal sanctions for circumvention and for producing and distributing products or providing services that are aimed at circumventing technological protection measures that effectively protect copyrighted works.").

Moreover, Congress recognized that the proliferation of devices that circumvent access control technologies put in place by copyright holders, in itself, constitutes irreparable harm, regardless of whether it is associated with known acts of copying.⁵ For this reason, Congress expressly authorized the federal courts to grant injunctive relief for violations of Section 1201(a)(2), violations which do not require copyright infringement. See Section 1203(a), (b). When a plaintiff"seeks an injunction to prevent the violation of a federal statute that specifically provides for injunctive relief, it need not show irreparable harm." Illinois Bell Tel. Co. v. Illinois Commerce Comm., 740 F.2d 566, 571 (7th Cir. 1984); In re Chicago, Milwaukee, St. Paul & Pac. R. Co., 738 F.2d 209, 213 (7th Cir. 1984); Trailer Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (9th Cir. 1983); Donovan v. Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 157 (5th Cir. 1982): Atchison. T. & S. F. R. Co. v. Lennen. 640 F.2d 255. 259 (10th Cir. 1981); see also Bronx Auto Mall, Inc. v. American Honda Motor Co., 934 F. Supp. 596, 612 (S.D.N.Y. 1996) (Kaplan, J.), affd, 113 F.3d 329 (1997).⁶

____________________

5 "Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously," copyright owners would hesitate to make their works readily available on digital media without strong protections. S. Rep. No. 105-190, at 8. It is in this context that the DMCA's remedial provisions must be construed. In particular, Congress protected the incentives of copyright owners by enabling them to enforce access control when it created a private right of action, and empowered courts to grant injunctions "to prevent or restrain a violation." 17 U.S.C. § 1203(b)(1).

6 The law also uses presumptions to prohibit conduct that, experience shows, is very likely to result in harm. As the Supreme Court stated in the antikust context, "there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused." Northern Pac. R. Co. v. United States, 356 U.S. 1, 5 (1958). Similarly, the criminal law prohibits much conduct that, in the light of experience and common sense, can be presumed to be harmful. This includes the low-tech equivalent of possessing anti-circumvention devices—the possession or sale of tools designed for picking locks. See generally 18 U.S.C. § 642 (prohibiting theft or embezzling tools and devices used for counterfeiting); N.Y. Pen. Law § 140.35 (criminalizing possession of burglary tools); Conn. Gen. Stat. Ann. § 53a-106 (1999) (same); Or. Rev. Stat. § 164.235 (1998) (same).

Even if plaintiffs were required to establish a threat of irreparable harm, they unquestionably have done so here. If left unchecked, proliferation of DeCSS threatens to deskoy the industry's confidence in DVD as a format for presentation of copyrighted works, to the ultimate detriment of consumers.⁷ See King Decl. (describing negative impact caused by proliferation of DeCSS). This alone is irreparable harm that mandates injunctive relief. See RealNetworks, 2000 WL 127311, at * 10 (finding irreparable harm based on circumvention of security measures and consequent loss of confidence in those measures). See also Gronich Decl. (impact of Internet proliferation of DVD movies enabled by DeCSS); Fisher Decl. (refuting fallacy of no injury to motion picture indusky caused by unauthorized Internet transmission of motion pictures); Second Supp. Schumann Decl. ¶¶ 1-14 (threat posed by DeCSS in light of new content delivery technology).

____________________

7 Courts have the power to enjoin conduct that will lead to irreversible harm at a time when such relief can still be effective and need not wait until injurious effects begin to manifest themselves. See, e.g. Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261 (2d Cir. 1988) (enjoining merger after which plaintiffs would "cease to be viable competitors in the market" since afterwards it would be difficult to "unscramble the eggs"); Inflight Newspapers, Inc. v. Magazines In-Flight, LLC, 990 F. Supp 119, 124-25 (E.D.N.Y. 1997) (enjoining disclosure of trade secrets without showing of actual use because use and disclosure was likely to occur in the future); Hillard v. Medtronic, Inc., 910 F. Supp 173, 179 (M.D. Pa. 1995) (enjoining violation of non-compete covenant based on finding that "[employer] is suffering irreparable harrn by the potential loss of customers posed by [employee's] activities.").

Moreover, notwithstanding repeated statements in defendants' brief, there is no question that DeCSS entails copying. That is how DeCSS works. DeCSS functions by copying decrypted DVD content onto computer hard-drives. Defendants admit as much. See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction at 2-3; Hearing Tr. at 28, 32; Boyden Decl. ¶ 11 and Exhibit 7 (attaching printouts of 2600.com). This copying is not authorized by the copyright owners. The threat of illegal file sharing engendered by this unauthorized decryption and copying is real. Defendants' own experts acknowledge the feasibility of such activities. See DiBona Decl. ¶5 and Exhibit B (Johansen interview); Stevenson Decl. ¶ 28 (regarding future compression technologies to store full-length movies).

Defendants are wrong in claiming that it is not yet technically "feasible" to utilize DeCSS to access, copy, transmit and store full-length movies via the Internet. New compression schemes, such as DivX, enable users to compress a feature film into a small, transferable package. Thus, "with just a little creativity and a willingness to trade, any movie released on DVD can be found in the DivX format on the Internet." See Second Supp. Schumann Decl. ¶ 10 and Exhibit 3. In fact, the mainstream media have already recognized that, by combining DivX with DeCSS, a user can access, copy, transmit and store feature films via the Internet. See Second Supp. Schumann Decl. ¶ 10 and Exhibits 3, 7, and 9.

While defendants cite examples of low bandwidth devices, such as 56K modem connections, to emphasize the impracticality of transmitting movie-sized files over the Internet, the reality is already far different. Most colleges and universities provide 100Mbps ethernet connections which enable the transfer of a five gigabyte DVD disk in under seven minutes. Combined with a high ratio compression devices, such as DivX, that same file can be transferred over a 100 Mbps link in under two minutes. See Second Supp. Schumann Decl. ¶ 7 and Exhibit 4.

Although defendants stress the alleged incompatibility of various DVD storage media as an obstacle to unauthorized copying of DVD films, they are not only wrong, but seem deliberately to miss the point. See Second Supp. Schumann Decl. ¶ 14. There is no need to copy the contents of a DVD onto another portable disk in order to engage in-so-called "file-sharing" on the Internet. Id. File sharing of DVD movies involves the unauthorized decryption and copying of DVD film content onto a computer hard drive or other storage medium. These unauthorized copies are compressed and transmitted, taking advantage of broadband connections via the Internet, to other users utilizing the new file-sharing technologies. To obtain a movie, another user merely downloads and decompresses it. Id. A tool like DeCSS facilitates the first step in this process—i. e., decrypting an encrypted digital copy of the movie and copying it into a computer hard drive. It is both unnecessary and undesirable to copy or transfer the contents of the decrypted DVD to another portable disk format, making defendants' arguments concerning the alleged incompatibility of various digital storage media completely irrelevant. Id. and Exhibit 9.

These file-sharing technologies have as their model the well publicized and heavily abused "Napster" and "myMP3.com" systems, which have enabled countless Internet users to copy and transmit audio recordings with impunity. Newer technologies not only offer the ability to copy and transfer feature length movies, but are also designed to ensure user anonymity to frustrate enforcement efforts. See id. ¶ 9 and Exhibit 2.

Defendants' persistence in denying the threat posed by DeCSS is difficult to reconcile with the daily media reports on the emergence of these and other technologies that enable Internet "file sharing" of feature films, including front-page articles in The New York Times, The Washington Post, and many, many others. See supra note 1.⁸ Defendants cannot escape the fact that DeCSS has been, and continues to be, widely touted on the Internet as a device to enable unauthorized decryption and copying of DVD movies or that defendants' proliferation of DeCSS will cause plaintiffs grave and irreparable harm. See Boyden Decl. Exhibits. 1, 10, 15, 18; Schumann Decl. ¶¶ 1-14 and Exhibits 1-9; Gronich Decl. ¶ 5; King Decl.; Fisher Decl.

____________________

8 Defendants offer rank hearsay to prove that they have "no personal knowledge" of any copying taking place through the use of DeCSS (see DiBona Decl. ¶¶ 6, 8). Their position is not only belied by the statements of a DeCSS' "inventor," but also by their own admissions that DeCSS creates an unauthorized copy of the decrypted movie file on the user's hard drive. (See Hearing Tr. at 28 and other admissions cited at 9-10, supra.)

III. DEFENDANTS' CROSS-MOTION IS AN IMPERMISSIBLE ATTEMPT TO HAVE THIS COURT SUBSTITUTE ITS JUDGMENT ON MATTERS ALREADY CONSIDERED BY CONGRESS IN ITS ENACTMENT OF THE DMCA

Congress enacted anti-circumvention legislation, consistent with the United States' obligations under the World Intellectual Properties Organization (WIPO) treaties on copyright, to maintain the incentives of copyright owners to make their works available in the digital world. "Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously," Congress recognized that "copyright owners will hesitate to make their works readily available" on digital media without strong protections. S. Rep. No. 105-190 at 8. See also Ginsburg at 142 ("Congress has independently determined that this scope of protection is necessary to afford meaningful protection to copyrighted works in the digital environment").

In hearings involving the testimony of numerous witnesses, Congress took heed of the concerns of various interest groups, and considered extensive testimony on reverse engineering, cryptographic research, fair use and the First Amendment.⁹ Rehashing such testimony here is an impermissible attempt to have the Court revisit that which Congress already heard and decided, and is also plainly inadmissable.¹⁰ See, e.g, In re Savers Fed S. & L. Assoc., 872 F.2d 963, 966 (11th Cir. 1989) (noting that when Congress has weighed conflicting interests in fashioning a statute, "second-guessing" by the courts is improper).

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9 See, e.g., 144 Cong. Rec. H7096, 7097 (reviewing how H.R. 2281 was revised in response to testimony by groups concerned about fair use) (remarks of Rep. Boucher); WIPO Copyright Treaties Implementation Act: Hearings on H.R. 2281 Before the Subcomm. on Telecommunications Trade & Consumer Protection, June 5, 1998, <http://comnotes.house.gov/cchear/hearings.nsf/action?OpenView&Start=1&Count=60&Expand=5#5>.

10 Testimony interpreting law is plainly inadmissable. See Fed. R. Evid. 702. See also, e.g, Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99-100 (1st Cir. 1997); North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280-81 (6th Cir. 1997); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995); Hugh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992); Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505, 509 (2d Cir. 1977); see generally Wright, Miller & Kane, Federal Practice & Procedure § 6264 (1997 & 1999 Supp.).

The Court should accordingly strike parts of the Declarations of Martin Garbus, John Gilmore, Eben Moglen, Matt Pavlovich, Bruce Schneier, Barbara Simons, Frank Stevenson, Dave Touretzky, and essentially all of the Declaration of Pamela Samuelson. See Declaration of Leon Gold, submitted herewith, ¶ 6.

Congress ultimately crafted a statutory scheme, with a series of exceptions and exemptions (see 17 U.S.C. § 1201(c)-(j)), which carefully balances the needs of users and copyright owners in the digital age. The legislative history of the DMCA reveals the clear congressional intention to provide copyright holders with a statutory means to prevent the unfettered trafficking in devices that circumvent technological protections, put in place to protect against unauthorized access to or copying of copyrighted works. See S. Rep. No. 105-190, at 11. While this legislation "is aimed primarily at 'black boxes' that have virtually no legitimate uses, trafficking in any product or service that meets one or more of the three points in the 17 U.S.C. § 1201(a)(2) test could lead to liability. It is not required to prove that the device in question was 'expressly intended to facilitate circumvention.' " See also Ginsburg at 144 ("indeed the principal targets of the DMCA are the providers of circumvention devices, services, etc. ") (emphasis supplied).

There is also no question that Congress carefully considered the balance between the needs of free expression and the risk created by the proliferation of circumvention devices, and took great care to safeguard both. Thus, Congress crafted exemptions which took into account the needs for legitimate reverse engineering and cryptographic research, while, at the same time, recognizing that "making such [circumvention] information or tools generally available [in the name of reverse engineering] could undermine the objectives of the [DMCA]." See H.R. Rep. 105-551, Part II at 43. See also 17 U.S.C. § 1201 (f)(3). See generally 144 Cong. Rec. H10615, H 10618 ("[i]n the Committee on the Judiciary, we worked very hard in particular in trying to work out a formula that would protect intellectual property rights and not give the online service providers an excessive incentive to censor. What I believe is a very important sign is that we were able to do that. ") (emphasis added) (Remarks of Rep. Frank); 144 Cong. Rec. H 10615, 10617 (DMCA an "excellent compromise" that takes into consideration "the right to do encryption research.") (Remarks of Rep. Tauzin).

Defendants' parsing of the DMCA and their constant refrain that the anti-circumvention provisions stifle free speech ignore the careful statutory balance struck by Congress in the DMCA. Defendants would have this Court legislate the matter anew, by replaying the same arguments on behalf of the same interest groups whose testimony was already heard and taken into account in enacting the DMCA. This is plainly improper.

IV. DEFENDANTS HAVE FAILED TO REBUT THE COURT'S FINDING OF LIKELIHOOD OF SUCCESS ON THE MERITS

The Court has already concluded that plaintiffs "have an extremely high likelihood" of successfully establishing their prima facie case. See 82 F. Supp. 2d at 217. Nothing defendants say in their brief or in their nineteen declarations alters this conclusion.

A. Plaintiffs Have Established A Prima Facie Violation Of 6 1201(a)(2)

1. CSS Is A "Technological Measure That Effectively Controls Access To" Plaintiffs' Copyrighted Works

This Court found that "it is perfectly clear that CSS is a technological measure that effectively controls access to plaintiffs' copyrighted movies because it requires the application of information or a process, with the authority of the copyright owner, to gain access to those works." See 82 F. Supp. 2d at 216-17; see also 17 U.S.C. § 1201(a)(3)(B). Indeed, defendants themselves have conceded that "one cannot in the ordinary course gain access to the copyrighted works on plaintiffs' DVDs without a 'player key."' 82 F. Supp. 2d at 217, citing Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction at 3. Thus, there can be no dispute that plaintiffs have met this element of theirprimafacie case. Accord RealNetworks, 2000 WL 127311, at *7 (holding that the manufacturer's proprietary authentication sequence constitutes a "technological measure" that "effectively controls access" to "copyrighted work" within the meaning of the statute). Defendants' contention that DeCSS is "ineffective" because it is weak and therefore not entitled to statutory protection is frivolous. Congress expressly declined to mandate any technical standard for the "effectiveness" of the "technological measure" for it to be entitled to protection under Section 1201(a):

Any effort to read into this bill what is not there—a statutory definition of "technological measure"—or to define in terms of particular technologies what constitutes an "effective " measure, could inadvertently deprive legal protection to some of the copy or access control technologies that are or will be in widespread use for the protection of both digital and analog formats.

See STAFF OF HOUSE OF REPRESENTATIVES COMM. ON THE JUDICIARY, 105TH CONG., 2D SESS., SECTION-BY-SECTION ANALYSIS OF H.R.2281 As PASSED BY THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4,1998, at 9 (Comm. Print 1998) [hereinafter "HOUSE JUD. COMM. REP."] (emphasis supplied); see also Second Supp. Schumann Decl. ¶ 20 and Exhibit 14. Defendants' claims that CSS is "weak" (see Def. Mem. at 11; Schneier Decl. ¶ 4; Simons Decl. ¶ 10; Wagner Decl. ¶ 12) are thus irrelevant.¹¹

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11 Defendants argue, without any citation to legal authority, that "Congress was also adamant that Section 1201 not allow copyright owners to dictate technical standards to device manufacturers" (De£ Mem. at 24). Their apparent attempt to invoke the DMCA's "no mandate" clause (17 U.S.C. § 1201(c)(3)), is meritless. The "no mandate" clause has no bearing on whether a technological measure effectively controls access to a copyrighted work under Section 1201(a)(2) and does not limit a copyright holder's right to employ proprietary technological measures as part of a playback system. It merely "clarifies that Section 1201 does not impose any affirmative design mandates on manufacturers of consumer electronics, telecommunications, and computing products to design their products." See S. Rep. No. 105-190, at 12; see also RealNet:works, 2000 WL 127311 at *9. Defendants' assertion that a measure is "not effective if it is employed to require device manufacturers to make design decisions at the command of the copyright holder" (Def. Mem. at 24-25) does not follow.

2. DeCSS Is "Primarily Designed Or Produced For The Purpose Of Circumventing" CSS

DeCSS circumvents CSS, allowing users to "decrypt" a DVD movie file and then copy that decrypted file to the user's computer hard drive. That is its primary, indeed its only, purpose. See Boyden Decl., Exs. 1, 15-16, 17 (page entitled "What is Exactly DeCSS?"). See also Schumann Decl. ¶ 2. Defendants' misguided focus on the alleged "legality" of the end uses of DeCSS by others, in an attempt to excuse these defendants' proliferation of the device, is untenable. These defendants admit that they, personally, do not engage in any allegedly lawful use of DeCSS, but merely continue to provide that device to others. See Goldstein Decl. ¶¶ 14, 21 and Ex. D.

Congress did not qualify the trafficking prohibitions in § 1201 (a)(2) by requiring an analysis of the uses to which recipients might put a circumvention device. The Section 1201(a)(1) prohibition on acts of circumvention is not yet in effect, as defendants recognize. Indeed, if the trafficking prohibition were governed by the permissibility of acts of circumvention, there would be no prohibition of trafficking. See Garbus Decl. ¶¶ 2, 4-5; Def. Mem. at 8, 23.¹² As defendants acknowledge, many of their arguments concerning the legitimacy of certain acts of circumvention are currently the subject of congressional study and Copyright Office rule-making and, as such, have no place before this Court. See Garbus Decl. ¶ 4 and Ex. A.¹³

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12 Congress created a safe harbor for certain categories of users who can demonstrate that they are being adversely affected by Section 1201(a)(1), by deferring effectiveness ofthat Section for two years while the Copyright Office engages in rule-making. However, it did not create a similar exception for the ''trafficking'' violation under Section 1201(a)(2). This distinction reflects Congress's determination that a trafficker should not be able to rely on any purported, hypothetical impact on certain classes of end users. If end users are entitled to relief from the circurnvention prohibition, they have a mechanism to obtain it—the rule-making process currently in progress—and not by judicial narrowing of the trafficking prohibition.

13 Indeed, several of defendants' declarants have availed themselves of the opportunity to make comments in that forum. See U.S. Copyright Office, Initial Comments, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 64 FR 226 Docket No. RM 99-7 (comments of Andrew W. Appel and Edward W. Felten; Electronic Frontier Foundation (Robin Gross); Dr. Barbara Simons; Dr. David S. Touretzky), <http://www.loc.gov/copyright/1201/comments/index.html>.

3. Defendants "Provided" DeCSS

The Court found that defendants have "provided" DeCSS within the meaning of the statute. 82 F. Supp. 2d at 214-15. Defendants cannot seriously claim otherwise. Defendant Goldstein admits to having posted DeCSS and further admits that DeCSS decrypts encrypted DVDs. See Goldstein Decl. Ex.A; Boyden Decl. ¶ 11 and Exhibit 7 (attaching printouts of 2600.com).¹⁴

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14 Defendants' continued provision of DeCSS, through linking, is addressed in plaintiffs' accompanying reply brief on plaintiffs' motion to modify the iniunction.

B. Defendants' Conduct Does Not Fall Within the Express Exemptions Of Section 1201, And Is Otherwise Indefensible

1. Defendants Cannot Rely On The Statutory "Reverse Engineering" Exception

The Court properly held that the reverse engineering exception to the DMCA, by its plain terms, "does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies. In consequence, the reverse engineering exception does not apply." See 82 F. Supp. 2d at 218 (citing S. Rep. No. 105-190, at 33). Nothing submitted by defendants alters this conclusion.

Even if Section 1201(f) were applicable, defendants' indiscriminate distribution of DeCSS to the general public runs afoul of this section, which places strict limitations on the methods and means of disseminating the results of reverse engineering activities. See S. Rep. No. 105-190, at 33 ("Recognizing . . . that making such circumvention information or tools generally available [in the name of reverse engineering] would undermine the objectives of the [DMCA], this Section imposes strict limitations.").¹⁵ Congress was concerned that wide dissemination of the results of reverse engineering activities:

could undermine the objectives of Section [1201]. [Section 1201(f)(3)] therefore imposes strict limitations on the exceptions created in Section [1201 (f)]. Acts of sharing information and tools are permitted solely for the purpose of achieving interoperability of an independently created computer program with other programs. If a person makes this information available for a purpose other than to achieve interoperability of an independently created computer program with other computer programs, then such action is a violation of this Act.

H.R. Rep. 105-551, Part II, at 43 (discussing 17 U.S.C. § 1201(f)(3)). Defendants' conclusory assertion that DeCSS "was a necessary step in creating an open-source DVD player" (Def. Mem. at 22), does not entitle defendants to provide the DeCSS encryption device indiscriminately, to the public, in the guise of engaging in or fostering others who may be engaged in reverse engineering efforts.¹⁶ Compare § 1201(g)(3). There is, as defendants' declarants admit, no "research" or other value to broad dissemination of the DeCSS executable utility other than to decrypt. See Wagner Decl. 1T 16; Touretzky Decl.; Second Supp. Schumann Decl. m 16-18. Defendants' declarants concede that DeCSS, in any form, has little reverse engineering value in itself, but simply performs the decryption function for what they claim is part of the intended development of an unlicensed Linux player. Id. And, as defendants must also concede, the vast majority of sites to which they link do not even purport to engage in research or study as a pretext for providing DeCSS. See Second Supp. Boyden Decl. ¶¶ 6-8.

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15 17 U.S.C. § 1201(f)(3) states that "[t]he information acquired through the acts [of reverse engineering] permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other prograrns, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this Section."

16 Defendants appear to have abandoned any claim that their conduct falls within the "encryption research" exception of Section 1201(g). Indeed, defendants cannot demonstrate, as this Court already concluded, that "any of them is engaged in encryption research, let alone good faith encryption research [or that] defendants have made any effort to provide the results of the DeCSS effort to the copyright owners." 82 F. Supp. 2d at 218-l9. As such, defendants activities plainly do not qualify as good faith encryption research under Section 1201(g). Tellingly, defendants' own experts acknowledge, as the statute contemplates, that it is appropriate even when engaged in such good faith research to disclose the results of such research in a way so as not to exploit any purported weaknesses in security systems. See, e.g., Stevenson Decl. ¶ 2, Ex. A (describing in curriculum vitae how in 1997 he "broke the encryption of a leading Norwegian security company's physical access system [and] deemed keeping the details of this finding secret as the most responsible course of action;" as well as how he notified Microsoft of a "serious error by using a well known cipher," so that it could issue a fix); see also Schumann Reply Decl. ¶ 11, Exs. B and C (attaching excerpts from chat rooms expressing concern about widespread dissemination of DeCSS).

2. Defendants' Provision of DeCSS Cannot Be Excused Under The "Fair Use" Doctrine

Defendants admit that they are providing the DeCSS utility to others, and that they make no use of it themselves. See Goldstein Decl. 14. Defendants seek, however, to justify their dissemination of this decryption utility because others who obtain DeCSS from them may, theoretically, use it for legitimate (but purely hypothetical) "fair use" purposes. This argument is wrong.¹⁷

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17 Defendants' reliance on Congressional testimony (Def. Mem. at 20, n. 8) does not lead to a different conclusion. There is no dispute that fair use is preserved as a defense to copyright infringement actions.

This Court properly held that the "fair use" doctrine has no application to a circumvention violation. See 82 F. Supp. 2d at 219; see also COPYRIGHT OFFICE SUMMARY OF THE DMCA, December 1998 at 4 ("since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited") (annexed as Ex. 6 to Reply Declaration of Bruce Boyden, dated January 20, 2000). Although Section 1201 plainly preserves the right of "fair use" as a "defense to copyright infringement," that provision does not incorporate a fair use defense into the separate prohibitions regarding circumvention. See 17 U.S.C. § 1201(c)(1) (emphasis added). The circumvention provisions are subject to discrete actions and remedies under Section 1203 of Chapter 12, Title 17. They are not subject to infringement actions or remedies under Chapter 5 of the Copyright Act, 17 U.S.C. § 501 et seq. See NIMMER § 12A.17[B].

Although defendants analogize to the "fair use" doctrine in the infringement context, even in that context their actions would be indefensible. A party may not violate the copyright owner's exclusive rights by, for example, making or distributing unauthorized copies of statutorily protected matter, and then rely upon the end users' activities to justify that activity.¹⁸ Thus, in the analogous context of Internet distribution of audio recordings, another Court in this District recently held that an enterprise cannot justify its violations of the Copyright Act on the ground that it is simply undertaking what each end user might do within the privacy of his or her own home.¹⁹

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18 See, e.g, Los Angeles New Serv., Inc. v. Tullo, 973 F.2d 791, 797 (9th Cir. 1992) ("news service" that copied and disseminated copyrighted works could not rely on possible "fair use" by ultimate recipients of those works for "research, scholarship and private study" to excuse its infringement; "the ultimate use to which the customer puts the work [work] is irrelevant ...."); Lotus Development Corp. v. Borland Int'l, Inc., 831 F. Supp. 223, 242 (D. Mass. 1993), rev 'd on other grounds, 49 F.3d 807 (lst Cir. 1995), aff'd without op., 516 U.S. 233 (1996) ("The fair use issues in this case properly focus on Borland's use (and not the consumer's use) of the infringing products. Otherwise, a book store could copy and sell 'Gone With the Wind' without permission. The book store would rely on the consumer's private use of the copied material to claim that its copying is a fair use."); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1531 (S.D.N.Y. 1991) (commercial copy shop's argument that it was acting as an agent for colleges whose professors provided materials rejected. It was irrelevant that the professors may have made an educational use of the materials.).

19 See UMG Recordings, 92 F. Supp.2d 349, 352 (S.D.N.Y. 2000).

Even if the fair use doctrine did apply in the circumvention context (it does not), defendants' arguments would necessarily fail because plaintiffs have demonstrated "by a preponderance of the evidence that some meaningful likelihood of future harm exists."²⁰ See SonyCorp. of Am. v. Universal City Studios, 464 U.S.417, 451 (1984); see also 17 U.S.C. § 107. Plaintiffs have offered substantial evidence—and, in fact, defendants themselves have admitted —that DeCSS can be used, and has been used, to copy DVD movies.²¹ End users can use DeCSS to make exact digital reproductions of the copyrighted content contained on a DVD which can then be distributed throughout the world. See Schumann Decl. ¶ 2; Second Supp. Schumann Decl. ¶ 12; Boyden Decl. Exs. 1, 7. Should such copying and/or distribution become widespread, it surely "would adversely affect the potential market for the copyrighted work." See Sony, 464 U.S. at 451. The Court must not only take into account the impact of these particular defendants' acts, if condoned as a fair use; it must also consider the aggregate effect of all others who may then engage in similar uses. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 568-69 (1985); see generally 4 NIMMER § 1305(A)(4) at 13-181 ("This factor, rather, poses the issue of whether unrestricted and widespread conduct of the sort engaged in by the defendant (whether in fact engaged in by the defendant or by others) would result in a substantially adverse impact on the potential market for, or value of, the plaintiff's present work." (Emphasis supplied.).) Widespread proliferation of DeCSS is not "fair use" by any stretch of the imagination.

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20 It is sufficient that plaintiffs have shown that digital copying and distribution of DVD content by virtue of DeCSS poses a threat, even if that threat cannot be precisely quantified in monetary terms. See Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983) ("The mere absence of measurable pecuniary damage does not require a finding of fair use"); Lish v. Harper 's Magazine, 807 F. Supp. 1090 (S.D.N.Y. 1993).

21 See, e.g, DiBona Decl. ("DeCSS perrnits one to copy a file of a DVD onto a computer's hard drive"); Gilmore Decl. ¶ 14 (DeCSS "can be used to copy compressed video images from a DVD disk onto a hard drive.").

Amicus Professor Charles Nesson argues that he needs to use "clips" from copyrighted films such as "The Verdict," "The Accused," and "My Cousin Vinny" in his classroom, but he never explains what prevents him from doing so. He may play any portion of any lawfully purchased DVD in his classroom on a licensed DVD player, or may use a VHS version of the film. He has no need to use DeCSS to defeat the DVD access or copy controls for these purposes and his individual acts of circumvention have no bearing on defendants' trafficking in DeCSS. Nothing in the fair use doctrine entitles the user making such a fair use to the "best" or a digital copy. See UMG Recordings, 92 F. Supp. 2d at 352 ("Copyright . . . is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders' property interests.").

At bottom, defendants' arguments are less about what the law is than what they contend it should be. See, e.g, Def. Mem. at 8 (quoting Samuelson Decl. ¶ 8) (arguing that, in her view, the DMCA's statutory exceptions failed to properly articulate "the interplay between the anticircumvention regulations and the copyright infringement laws"). Such arguments are more properly addressed to Congress than to this Court. See 82 F. Supp. 2d at 219 ("If Congress had meant for the fair use defense to apply to [actions under 1201 (a)(2)], it would have said so"). See supra, 11-13.

3. Defendants' Reliance Upon The Sony "Betamax" Case Is Misplaced

Defendants' reliance upon Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984), is misconceived. Defendants argue that, like Sony, they are merely providing a device that may have legitimate, as well as illegitimate uses. As a result, defendants claim that they should not be held accountable for providing DeCSS if the device has "substantial" noninfringing uses. See Gilmore Decl. ¶ 13. Congress chose not to adopt the Sony standard (for contributory copyright infringement liability) in the circumvention trafficking provisions. Instead, the statute prohibits trafficking not only those devices "primarily designed or produced for the purpose of [circumvention]," but also devices which, even if "not primarily designed to circumvent," have "only limited commercially significant purpose or use other than to circumvent." See Section 1201(a)(2)(A), (B). Thus, if "in the name of the scrambling a public domain motion picture, a 'blackbox' is distributed to users who are more likely to descramble all of Disney," trafficking in the device would be unlawful. See Ginsburg at 145.²²

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22 Professor Ginsburg observes that indiscriminate dissemination to the public of such a device, as here, would itself undermine any claim to such limited use. See Ginsburg at 145.

The enactment of the DMCA means that:

those who manufacture equipment and products generally can no longer gauge their conduct as permitted or forbidden by reference to the Sony doctrine. For a given piece of machinery might qualify as a staple item of commerce, with a substantial noninfringing use, and hence be immune from attack under Sony 's construction of the Copyright Act—but nonetheless still be subject to suppression under Section 1201.... Equipment manufacturers in the twenty-first century will need to vet their products for compliance with Section 1201 in order to avoid a circumvention claim, rather than under Sony to negate a copyright claim.

1 NIMMER § 12A.18[B]; see also Ginsburg at 155. As the RealNetworks court held, the Sony doctrine is inapplicable to a violation of a Section 1201(a)(2):

Moreover, the Sony decision did not involve interpretation of the DMCA. Under the DMCA, product developers do not have the right to distribute products that circumvent technological measures that prevent consumers from gaining unauthorized access to or making unauthorized copies of works protected by the Copyright Act. Instead, Congress specifically prohibited the distribution of the tools by which such circumvention could be accomplished. The portion of the Streambox VCR that circumvents the technological measures that prevent unauthorized access to and duplication of audio and video content therefore runs afoul of the DMCA.

Id. at 8.

Although defendants offer a handful of alleged "legitimate" uses of DeCSS to prove that their proliferation of this device is innocuous, the vast majority of sites to which defendants link consist of object code versions of the DeCSS utility. See Second Supp. Boyden Decl. ¶ 7 Even crediting defendants' arguments concerning engineering and research (discussed above), there is no basis to conclude that defendants' provision of DeCSS is anything other than a plain violation of Section 1201(a)(2).

4. Defendants' Reliance Upon The First Sale Doctrine Is Misplaced

Defendants' reliance on the "first sale" doctrine in this context (i.e., that the copyright owner has no control over the disposition of a lawful copy, once it has been sold), is sorely misplaced. First, defendants' argument assumes that anyone who uses DeCSS to decrypt a DVD will have purchased or otherwise lawfully acquired the DVD. There is no foundation for this assumption; indeed, the very premise of file sharing technologies is otherwise. Cf. UMG Recordings, 92 F. Supp. 2d at 352.

Second, lawful ownership of an authorized copy of a work does not entitle the owner of that copy to copy it or electronically transmit it to others. See 17 U.S.C. § 109. See also Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993).

Third, lawful ownership of an authorized copy of a DVD movie does not excuse defendants' trafficking in a decryption device. Nothing in the DMCA, or in 17 U.S.C. § 109, purports to excuse trafficking in a decryption device based upon some alleged authority of a user to decrypt legitimate copies, by any means. The anti-circumvention provisions are critical elements to an overall system of protection adopted by Congress, which includes, among other things, the use of playback devices which decrypt DVD content in a manner which does not permit access or copying of the digital bitstream for any purpose other than playback. See King Decl.; see also Hoy Decl. This was part of the Congressional scheme to protect copyrighted works in a digital environment.²³ Trafficking in DeCSS defeats those protections, whether or not an individual end user owns a lawful, authorized copy of a DVD movie or is otherwise lawfully entitled to "watch" the movie content within the privacy of his or her own home.²⁴ See also 82 F. Supp. 2d at 217 n.14 (rejecting defendants' argument that "DeCSS was intended only to permit persons in lawful possession of copyrighted disks to play them for their own use on computers running under the Linux operating system rather than Windows," in part because "the playing without a licensed CSS 'player key' would 'circumvent a technological measure"' in violation of the statute).²⁵ Although owners of authorized copies of DVDs have a right to play them back within the privacy of their homes using licensed access technology, that right does not include the right to copy the work,²⁶ to publicly perform it,²⁷ or to transmit its contents to others.²⁸

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23 See H.R. Rep. No. 105-796, at 64-65 (1998) (discussing "understanding of the conferees that technological measures will most often be developed through consultative, private sector efforts by content owners and makers of computers, consumer electronics and telecommunications devices"); H.R. Rep. 105-551, part 2, at 39 (1998) (discussing use of a "key" to gain access to a work); H.R. Rep. 105-551, part 1, at 18 (analogizing § 1201(a)(2) to 17 U.S.C. § 1002(a) prohibition on digital audio recording devices lacking specified characteristics); see also H.R. Rep. 105-551, part 1, at 9 (1998) (discussing need for legislation in context of digital environment where users can retrieve perfect copies of copyrighted material easily and nearly instantaneously); S. Rep. 105-190, at 8 (1998) (same).

24 The Linux-based players that are currently being offered observe these safeguards by prohibiting access to the decrypted DVD content for any purpose other than playback. See Second Supp. Schumann Decl. ¶ 15 and Exhibit 10.

25 Defendants state that "Congress did not intend the Act to prohibit circumvention where an individual has lawfully obtained copyrighted material" and quote a portion of the legislative history of Section 1201(a)(1) in "support." Def. Mem. at 24. The quoted language is inapposite because it discusses the Section 1201(a)(1) circumvention offense, not the Section 1201(a)(2) trafficking offense. Moreover, even with regard to a Section 1201(a)(1) circumvention offense, both the statutory section and the legislative history quoted clearly contemplate that if an individual has not obtained authorized access to a copy, he or she will be subject to the Section 1201(a)(1) prohibition on circumvention.

26 Defendants' "space shifting" argument (see Def. Mem. at 12) falls of its own weight, as Sony expressly did not condone as "fair use" copying of pre-recorded media. 464 U.S. at 425; see also UMG Recordings, 92 F. Supp.2d at 351 ("although defendant recites that My.MP3.com provides a transformative 'space shift' by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium—an insufficient basis for any legitimate claim of transformation").

27 Defendants misread § 109(c) which addresses the right of public display (defined as the presentation of individual images nonsequentially), as opposed to public performance which is not an incident of ownership of a lawful copy. (See Def. Mem. at 9, 26.)

28 Defendants also claim that DeCSS enables users to defeat "regional coding." That is not only untrue, (see Second Supp. Schumann Decl. ll 23), but even if it were true, supplying a device to circumvent a territorial restriction would itself violate § 1201(a)(2)(A). See Sony Computer Entertainment America, Inc. v. GameMasters, 87 F. Supp. 2d 976, 987-88 (N.D. Cal. 1999).

Simply put, in the ordinary course of its operation, CSS "requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." 17 U.S.C. § 1201(a)(3)(B). The sale of authorized copies of DVD movies does not in any way change this.

V. APPLICATION OF THE DMCA TO PROHIBIT DEFENDANT'S UNLAWFUL CONDUCT DOES NOT VIOLATE THE FIRST AMENDMENT

This Court correctly held that "[a]pplication of the DMCA to prohibit production and dissemination of DeCSS . . . does not violate the First Amendment." 82 F. Supp. 2d at 223. Nothing contained in defendants' submissions or declarations changes that conclusion. Moreover, while defendants focus almost exclusively on source code iterations of DeCSS in arguing that its proliferation constitutes protected speech, they simply ignore that, as the Second Supplemental Boyden Declaration shows (see esp. ¶¶ 4-6), most of what they are proliferating is object code—the form in which most of defendants' links provide DeCSS. Object code has little, if any, expressive value, as defendants' chosen "experts" acknowledge. Wagner Decl. ¶ 16; Schumann Decl. ¶ 17.

A. The DMCA And This Court's Injunction Properly Prohibit Defendants' Actions As Integral To An Unlawful Course of Conduct

Defendants' suggestion that Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) requires this Court to vacate its injunction is baseless. Junger only addressed the extension of First Amendment protection to computer source code, not object code—the primary form of DeCSS which defendants admittedly offer to the public. The point which defendants' numerous declarations labor to establish—that source code has expressive components and constitutes protectable "speech" because "computer prograrns serve as languages for expressing ideas about how to do things"²⁹—was already assumed by the Court in granting the preliminary injunction. 82 F. Supp. 2d at 219-20. The Court went on, however, correctly to observe that this point "is only the beginning of the analysis." Id. at 220.

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29 See Abelson Decl. ¶ 9; Touretzky Decl. ¶ 3 (source code is expressive speech meriting full First Amendment protection); Appel Decl. ¶¶ 6, 11 (publication of computer code is part of the expression of ideas).

The government may regulate, and even proscribe, a particular course of conduct that causes substantive harm, even where that conduct is imbued with elements of expressive "speech."³⁰ The same principle safeguards statutes protecting intellectual property law from the type of simplistic First Amendment challenge lodged here.³¹ As this Court has recognized, "it is no longer open to doubt that the First Amendment does not shield copyright infringement." 82 F. Supp. 2d at 220. See also Harper & Row, 471 U.S. at 555-60. Defendants are as free under the preliminary injunction as they were before to criticize the DMCA, Congress, or the Court; intellectual property law; or the advocates of protection for intellectual property. But just as the criminal law has long prohibited the sale of burglary tools, the DMCA lawfully prohibits defendants from offering to the public or otherwise providing an "anti-circumvention device" such as DeCSS.

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30 See United States v. O'Brien, 391 U.S. 367 (1968) (Congress may constitutionally punish burning of Selective Service draft card even though such conduct was imbued with expressive elements of political protest); Universal, 82 F. Supp. 2d at 222. Cases in this and other Circuits have long recognized that the mere fact that "speech" (including traditional language and even computer code) is used to carry out unlawful conduct does not immunize that conduct from regulation. See, e.g, Village of Hoffman Estates v. Flipside, 455 U.S. 489, 496 (1982) (upholding ordinance regulating sale of items displayed within proximity of literature encouraging illegal drug use, noting that even "[i]f that activity is deemed 'speech,' then it is speech proposing an illegal transaction, which a government may regulate or ban entirely."); United States v. Rowlee, II, 899 F.2d 1275, 1278 (2d Cir. 1990) (First Amendment no bar to prosecuting defendants that actively counseled others to evade tax laws, noting that "[t]heir conduct was not protected by the First Amendment merely because, in part, it may have involved the use of language").

31 See, e.g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (rejecting First Amendment challenge to damage award against television broadcasting company that violated plaintiff's rights of publicity by playing videotape of plaintiff's live performance); Dr. Seuss Enterprises L.P. v. Penguin Books, 109 F.3d 1394, 1403 n.11 (9th Cir. 1997) (rejecting First Amendment challenge to injunction against book which provided a poetic account of O.J. Simpson murder trial but infringed The Cat in the Hat); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir. 1979) (rejecting argument that prior restraint doctrine prohibits injunction against infringing poster distributor); Chicago School Reform Board of Trustees v. Substance, Inc., 79 F. Supp. 2d 919, 928-29 (N.D. Ill. 2000) (rejecting argument that First Amendment permits newspaper to publish copyrighted educational tests to generate public debate over test's validity).

Defendants repeatedly contend that dissemination of DeCSS is necessary to develop public awareness and stimulate research on the weakness of CSS as an encryption device. (See Appel Decl. ¶¶ 4-5, 16; Wagner Decl. ¶ 7). However, this very argument was recently rejected as a justification for infringing the copyright in a plaintiff's educational tests:

Furthermore, Defendants present only one reason for publishing the tests: to stir public debate about them .... While creating public awareness of potentially ineffective educational tests is an admirable goal, it fails to convert Defendants' copyright violations to conduct protected by the First Amendment.

Chicago School Reform Board of Trustees v. Substance, Inc., 79 F. Supp. 2d 919, 928-29 (N.D. III. 2000) (emphasis added) (First Amendment did not permit defendant to publish plaintiff's copyrighted educational tests).

Thus, defendants' arguments that the expressive character of DeCSS requires the Court to vacate its injunction, and hold the DMCA unconstitutional, are meritless. Congress may per nissibly legislate to protect intellectual property by prohibiting the distribution of anticircumvention technologies on which protection depends, regardless of whether those technologies are metal keys or software codes. Prohibiting such conduct is no less constitutional because arguably "expressive" computer code is involved, or because the defendants publish an on-line "hacker" magazine. See United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th Cir. 1990); United States v. Barnett, 667 F.2d 835, 842-43 (9th Cir. 1982).

B. This Court's Injunction Is Not An Unconstitutional Prior Restraint

Ignoring this Court's conclusion that "the prior restraint doctrine does not require denial of the preliminary injunction in this case," 82 F. Supp. 2d at 226, defendants seek reargument, complaining that the Court gave insufficient weight to the expressive character of DeCSS. See Def. Mem. 28. However, as discussed above, the Court already assumed DeCSS was sufficiently expressive to merit First Amendment protection, and held the injunction is not an impermissible prior restraint.

1. The Prior Restraint Doctrine Does Not Prohibit Disseminating "Speech" If Integral To Unlawful Conduct

The Supreme Court "has never held that all injunctions are impermissible" under the guise of the prior restraint doctrine. To the contrary, it has expressly upheld an injunction against the publication of a narrowly defined category of speech that "aided" unlawful conduct. Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973) (upholding injunction against newspaper's furtherance of illegal sex discrimination). Here, as there, "[t]he present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication .... Moreover, the order is clear and sweeps no more broadly than necessary." Id. at 390 (internal citations omitted).

Indeed, as this Court has already made abundantly clear, a court may enjoin a defendant from disseminating "speech" that is integral to a course of unlawful conduct without running afoul of the prior restraint doctrine. 82 F. Supp. 2d at 222-27; Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (upholding injunction against protests by labor picketers when such activities were prohibited by valid law).

"No one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another," New York Times v. United States, 403 U.S. 713, 731-32 n.1 (1971) (White, J., concurring), and the same reasons that lead courts to conclude that the rule against prior restraints does not bar preliminary or final injunctions in copyright cases apply fully here. The "speech" restrained is narrowly defined and of minimal expressive value, if any; the injunction does not bar communication of ideas, discussion, criticism, advocacy, and the like. The injunction here, like copyright injunctions, furthers the Constitutional mandate "to Promote the Progress of Science and Useful Arts." U.S. Const. Art. I. § 8. Defendants' assertion that "this Court, so far as we know, was the first Court to enjoin the press from posting expressive speech under the Copyright Act" (see Def. Mem. at 28) is preposterous. Members of the press (i.e., writers and publishers) are subject to copyright injunctions, without prior restraint doctrine impediments, whenever they violate that law. See, e.g, Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 93 (2d Cir. 1998); Dr. Seuss Enters. L.P. v. Penguin Books USA, 109 F.3d 1394, 1403 n.l l (9th Cir. 1997); Chicago School Reform Board of Trustees, 79 F. Supp. 2d at 928-29.

2. Defendants' Arguments Do Not Undermine the Analysis Already Undertaken by Congress and the Court

This Court correctly concluded, after carefully weighing the same arguments defendants now reargue on this motion, that the balancing of interests between Congress's constitutional power under the Copyright Clause and the nature of DeCSS did not require denial of the preliminary injunction. 82 F. Supp. 2d at 226.

As this Court has already concluded, Congress considered the DMCA and found that "copyright piracy of intellectual property flourishes, assisted in large part by today's world of advanced technologies." H.R. Rep. 106-216, 106th Cong. 1st Sess. (1999); 82 F. Supp. 2d at 225. The interest served by prohibiting circumvention of access controls "is of constitutional dimension." Id. Balanced against this constitutional mandate is defendants' asserted right to distribute DeCSS with impunity. Even if DeCSS is assigned the expressive character that defendants advocate, dissemination of DeCSS may be constitutionally enjoined, see Mendelsohn, 896 F.2d at 1186, and this interest must yield to Congress' constitutional mandates under the Copyright and Commerce Clauses. Once again, defendants confuse their right to engage in "speech" with their unlawful conduct, which may be legitimately proscribed.

Defendants fail to show how enjoining dissemination of DeCSS prohibits meaningful public comment or discussion about DeCSS.³² Indeed, as plaintiffs have repeatedly demonstrated, the DMCA is directed at unlawful conduct and not at any legitimate discussion of the merits of DeCSS or anti-circumvention technology generally.

____________________

32 Defendants' own declarations establish that the pending injunction has not stifled discussion of DeCSS or encryption research, showing that the Copyright Office has collected substantial public comment on the anti-circumvention provisions of 17 U.S.C. § 1201(a)(1). see Appel Decl. ¶ 18. Much of this discourse centered on DeCSS and CSS and was offered after this Court entered its injunction. See e.g., DiBona Decl. ¶¶ 7-8.

C. The DMCA is not Vague or Overbroad

1. Defendants May Not Assert a "Vagueness" Challenge to the DMCA Because Their Own Conduct Is Clearly Proscribed

Defendants' claim of vagueness is "frivolous." 82 F. Supp. 2d at 224. "It is settled in this circuit that a party who engages in some conduct that is clearly proscribed by the challenged statute cannot complain of the vagueness of the law as applied to the conduct of others." Id. (internal punctuation omitted), citing Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982). Indeed, a court must "exarnine the complainant's conduct before analyzing other hypothetical applications of the law." Village of Hoffman Estates, 455 U.S. at 495. As correctly found by this Court, and as demonstrated above, defendants' conduct easily falls within the prohibitions of the DMCA. 82 F. Supp. 2d at 224. Therefore, defendants' vagueness challenge must fail.³³

____________________

33 Moreover, a vagueness challenge fails unless the complaining party demonstrates that a statute is impermissibly vague in all applications of the statute. Village of Hoffman Estates, 455 U.S. at 495. Because the DMCA may be properly applied to the defendants, defendants cannot claim the DMCA is vague in all its applications.

2. Defendants Have Failed to Show That The DMCA Prohibits a "Substantial" Amount Of Protected Conduct

A challenge to a statute on overbreadth grounds is "strong medicine" to be employed with hesitation and then "only as a last resort." Los Angeles Police Dep't v. United Reporting Publishing Corp., _ U.S. _, 120 S. Ct. 483, 489 (1999) ("[e]ven though the challenge be based on the First Amendment, the overbreadth doctrine is not casually employed."); Sanitation and Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 997 (2d Cir. 1997). Furthermore, a party cannot succeed in challenging a statute on overbreadth grounds unless it first shows that the statute reaches a "substantial" arnount of constitutionally-protected conduct. 82 F. Supp. 2d at 224; Village of Hoffman Estates, 455 U.S. at 494.³⁴

____________________

34 The Second Circuit has held that where a defendants' exercise of first amendment freedoms is not implicated, the Court should not hold a statute unconstitutional "simply because the statute might conceivably trespass upon first amendment rights of others." United States v. Girard, 601 F.2d 69, 71-72 (2d Cir. 1979).

Defendants have failed to establish that the DMCA reaches a substantial arnount of constitutionally-protected conduct, or that the DMCA as interpreted by this Court "is so vague and all-embracing as to prohibit an immense amount of protected speech along with the single utterance (DeCSS) plaintiffs claim they wish to silence." (See Def. Mem. at 33-34).³⁵

____________________

35 In parsing the voluminous declarations, one finds contentions that computer research programmers have been deterred in their efforts to publish papers discussing CSS and developing DVD playback for Linux machines. See, e.g, Stevenson Decl. ¶ 14. However, these declarations focus primarily on posting DeCSS source code, while the vast majority of the defendants' actions center on providing the object code executable utility. See Boyden Decl. ¶ 7.

Congress took great care in narrowly tailoring the provisions of the DMCA in order to safeguard rights of free expression and legitimate research. See 17 U.S.C. § 1201(f) ("reverse engineering" exception); 17 U.S.C. § 1201(g)(2) ("encryption research" exception). Additionally, the legislative history confirms that Congress carefully tailored the Act to balance protection of intellectual property against any rights of free speech. See 144 Cong. Rec. H10615, H10618. The preliminary injunction here restrains far less speech than most copyright injunctions because, for example, it is limited to the precise codes that circumvent CSS, leaving all other software, and all discussion, unaffected.

CONCLUSION

For these reasons, defendants' cross-motion to vacate the preliminary injunction should be denied.

Dated: New York, New York
            June 2, 2000

PROSKAUER ROSE LLP By: [Leon Gold Signature] Leon P. Gold (LG-1434) William M. Hart (WH-1604) 1585 Broadway New York, New York 10036 (212) 969-3000 Telephone (212) 969-2900 Facsimile - and - Jon A. Baumgarten (JB-7091) PROSKAUER ROSE LLP 1233 20th Street, N.W., Suite 800 Washington, DC 20036-2396 (202) 416-6800 Telephone (202) 416-6899 Facsimile Attorneys for Plaintiffs

[1 page]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

[See separate file for Second Supplemental Declaration of Robert W. Schumann.]

[4 pages]

Gold Declaration

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

Leon Gold declares under penalty of perjury as follows:

1. I am a partner in the firm of Proskauer Rose LLP, counsel for plaintiffs in this action and make this declaration based upon my personal knowledge of the events described below.

Defendants' Claims of Untoward Delay

2. Immediately after the Court's January 20, 2000 hearing on plaintiffs' motion for a preliminary injunction, we were in contact with defendants, through their various counsel, to coordinate further proceedings in this case, in view of the Court's invitation to conduct an immediate trial. Two of the three defendants, who had engaged separate counsel, entered into settlement discussions that resulted in the execution and entry of consent judgments. See Consent Judgment Against Defendant Roman Kazan, dated March 17, 2000; Consent Judgment Against Defendant Shawn C. Reimerdes and Leech Software, Inc., dated April 12, 2000.

3. My communications with counsel for the remaining defendant, Eric Corley alk/a Emmanuel Goldstein (and his corporate entity, 2600 Enterprises, Inc., collectively, the "2600 defendants"), were frustrated by an apparent lack of communication among the various lawyers representing these remaining defendants, a fact that was made evident by their own submissions to the Court after the January 20, 2000 hearing. See Affidavit of Robin Gross, p.2 ¶¶ 10-15, and Affidavit of Allon E. Levy, p.2  ¶¶ 9-15, copies of which are annexed as Exhibit 17.

4. Ultimately, we were informed that new defense counsel, in the person of Martin Garbus, would be representing the 2600 defendants. Initially, Mr. Garbus needed time to acquaint himself with the case and was unable to make any commitment concerning his intentions for an early trial. When the parties' counsel met at the March 20 scheduling conference before the Court, Mr. Garbus requested to defer the trial until February 2001, but the Court scheduled trial for December 2000.

5. Thereafter, on April 4, 2000, plaintiffs filed their motion to modify the injunction herein to cover defendants' linking activities. These activities were addressed before the Court at the January 20 hearing but, at the Court's instruction, were to be made the subject of a separate application. See Hearing Transcript at 80-85, attached as Exhibit 18. In view of the fact that an early trial date originally offered by the Court was pushed back at defendants' request and, because the 2600 defendants had stepped up their linking activities in the meantime, plaintiffs filed their motion to modify the preliminary injunction. Subsequently, the Court rescheduled the trial for July 17.

Submissions by Defendants Amounting to Improper Testimony on Law

6. I respectfully submit that several of the declarations defendants submitted in support of their cross motion to vacate the preliminary injunction should be stricken, in whole or in part, because they consist of testimony on law. (See Plaintiffs' Mem. In Opp. at 13, n.10.) Specifically, the following assertions, identified by declarant, page, and paragraph, consist of improper legal argument: Declaration of Martin Garbus, p.2 ¶¶ 2, 3, and 4; p.4 ¶¶ 9 and 10; p.5 ¶ 12; p.7 ¶ 21; Declaration of John Gilmore, pp.2-3 ¶ 9; pp.4-6 ¶¶ 12-14; p.7 ¶¶ 19-20; pp.9-10 ¶¶ 24-25; Declaration of Eben Moglen, p.2 ¶ 3; Declaration of Matt Pavlovich, p.2 ¶ 2; Declaration of Pamela Samuelson, pp.3-9 ¶¶ 5, 7-16; Declaration of Bruce Schneier, p.3 ¶ 8; Declaration of Barbara Simons, pp.3-7 ¶¶ 6, 9, 14, 15, 17; Declaration of Frank Stevenson, p.9 ¶ 29; Declaration of Dave Touretzky, pp.2-5 ¶¶ 3, 6.

I declare under penalty of perjury, that the foregoing is true and correct.

Date; June 2, 2000

[Signature]

Leon Gold

[7 pages.]

Fisher Declaration

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

I declare under penalty of perjury, as follows:

1. I am the Jane Berkowitz Carlton and Dennis William Carlton Professor of Economics at the Massachusetts Institute of Technology the Massachusetts Institute of Technology [sic], where I have taught for 40 years. I am also a director of the National Bureau of Economic Research and teh Chair of the Middle East Water Project, an international project on the economics of water in the Middle East. I received my A.B. from Harvard in 1956, and my Ph.D. in Economics from Harvard University in 1960.

2. I am fellow and past president of the Econometric Society and for nine years was the editor of that society's journal, Econometrics. I am a member of the American Economic Association, from which I received the John Bates Clark Award, a fellow of the American Academy of Arts and Sciences, and have been a recipient of a John Guggenheim Fellowship.

3. My fields of specialization within economics are industrial organization, microeconomics and econometrics. I am the author of 15 books and well over 100 articles. In the course of my scholarly research and my consulting work, I have studied issues of competition and monopoly in a large number of industries. I have written extensively in the area of antitrust economics. I have provided expert consultation and testimony in numerous cases regarding issues of antiturst, statistics, and econometrics. I have testified in trial, in deposition, or by affidavit in more than 40 cases in the last 10 years. These cases are listed in my curriculum vitae, which is attached as Appendix 1 to this report. They include cases involving intellectual property, communications, computer science and other emerging technologies and their impact on existing and new markets for products in the United States and throughout the rest of the world.

2. [sic] One of the most rudimentary principles of economic analysis is that price drives consumer transactions. A consumer faced with what appears to be equal and roughly equal choices in quality, convenience, durability and the like will invariably be driven by price and typically chose the less expensive product or service. Consumers are, in fact, often willing to suffer an inferior product or service to achieve a cost savings.

3. This basic proposition about purchasing behavior has, to a significant degree, been affected by the availability of materials at no cost via the Internet. That is, consumer expectations are influenced by the fact that products are made available without charge. If a consumer is able to obtain something as simple as a newspaper article, photograph or other material via the Internet without being required to pay anything for it, that consumer becomes conditioned to expect that item for free in the future, and becomes less inclined to pay anything (even a reduced price) for it. While I assume that the vast majority of consumers in the United States who utilize the Internet are law-abiding citizens who would not normally take something which they knew or believe to be stolen, people are becoming increasingly conditioned to accept what appears to be an innocuous activity when they obtain materials from the Internet even when it may not be legal to do so. There is, I believe, a mindset which operates on the basis that if it were not okay to take such material, that material would not be there for the taking in the first place. I am aware of many anecdotal reports in the news media within the last year concerning precisely this attitude on the part of college students and others who claim to know that their uploading and downloading of unauthorized copies of audio recordings on the Internet is illegal, but engage in those acts anyway.

4. Mixed with this mindset and conditioned behavior on the part of consumers is a certain hostility towared established businesses and a certain degree of righteous indignation against having to be charged anything for pursuits which do not seem to harm anyon other than large corporations and, perhaps, wealthy artists.

5. All of these factors play a part in encouraging consumers to take the view that activities in uploading and downloading materials on the Internet through software networks ("file sharing") is or should be legal. As a result, the use of these technologies grows as people are led to believe, at least among their peers, that using them is essentially is [sic] a harmless act. Given the revolution in Internet activity over the last several years, these attitudes have become more pronounced and more mainstream.

6. I have reviewed the Declaration of Lewis Kurlantzick and seriously disagree with his conclusions. In essence, Professor Kurlantzick does not believe that there is any financial effect from the unauthorized reproduction of copyrighted materials on the Internet, concludes that persons who may get such material at little or no cost would not necessarily have purchased the legitimate product at a higher cost and further, suggests that the availability of unauthorized copies on the Internet will have little or no impact on the copyright holders of these works.

7. Although one could argue about whether financial considerations are the true incentive for creaative artists, the fact is that businesses, like the motion picture business, depend upon recovery of their substantial investments in the production, distribution and marketing of feature films. These companies do so through the fees charged for licensing theatrical exhibition (in the United States and elsewhere throughout the world), video sales (including sales or licensing for the home video markets) and licensing for premium, cable and eventual network television viewing. These companies often do not recover their costs in connection with many films which they produce and desitribute, which only makes the need to profit on successful films even greater, to recover these lost investments.

8. The availability of unauthorized copies of feature length films on the Internet would have a considerable, negative financial and market impact on the major motion picture companies. First, as stated above, consumers who are conditioned to receiving something for free are less likely to pay for the same thing through legitimate channels. This has a particularly acute impact given the manner in which motion picture films are released and distributed. Once a film has been made available for free viewing (for example on network television), consumers are much less inclined to opt for that program as a premium cable choice or video purchase or rental. Thus, ready availability of unauthorized copies of fature films on the Internet, will, in my estimation, have a serious effect on the ability of motion picture companies to realize their necessary profits in the licensing and distribution of authorized films through the trade channels described above.

9. Likewise, any expectation that the film companies have to develop a legitimate market on the Internet for the delivery of their films will be significantly thwarted by the presence of unauthorized product available at little or no charge to the consumer.

10. Once a film has been released in home video format it is not freely available to consumers on network TV for some period of time. However, if immediately upon home video release, that film is immediately available on the Internet, that will undoubtedly impact home video sales and licensing of the film. This home video market is a significant source of income for film producers and studios and often represents the difference between a profitable and unprofitable production. Many films which do poorly at the box office are huge hits in the home video market and some films are never exhibited theatrically or exhibited for only a brief period of time before being released in home video formats.

11. I am in serious disagreement with Professor Kulantzick if it is his opinion that the availability of unauthorized product "for free" on the Internet will not have a serious financial market impact upon those companies which are in the business of producing and distributing feature films.

12. I also find less than compelling, John gilmore's claim that once a movie has been released on DVD the copyright holder has "ben compensated: the toll has been paid; the user is a consumer, not a thief." Gilmore Decl. para. 9. If Mr. Gilmore recognizes that advances in technology will lead to Internet delivery of motion pictures, he must also recognize that the sale of a single DVD movie may lead to its unauthorized reproduction and transmission to a potential audience of millions, who would never have to pay a thing to have access to view or further copy it.

13. Barbara Simon's views, based on a copyright policy that allows "unlimited non-commercial copying" have no applicability to a model involving content that is only made available, through licensing or sale of copies, for a fee.

14. The holder of a copyright has invested in the production of the copyright work (or purchased it from someonw who has so invested). The incentive to so invest and so produce depends on the returns that are expected to accrue when the copyrighted work is licensed and exploited. To permit the free copying of such a work is to interfere with that incentive. Even to make it uncertain whether there will be free copying so interferes, for it exposes the copyright holder to otherwise unanticipated risk without offering additional return in compensation.

15. As is always the case with intllectual property, if there were only ever to be to be [sic] a single work, the, once a work has been created, it would be beneficial if it could be distributed at sero marginal cost -- i.e., freely copied. But to permit this would adversely affect the creation of later works. This is the whole economic rationale for the protection of intellectual property. It must not be forgotten.

I declare, under penalty of perjury, that the foregoing is true and correct.

Dated: June 1, 2000

[Signature]

Franklin M. Fisher

[Fisher curriculm vitae, 24 pages, omtted here.]

[4 pages.]

Gronich Declaration

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

Daphne Gronich declares, under penalty of perjury. as follows:

1 . I am the head of the Department responsible for the registration and enforcement of the intellectual property of Twentieth Century Fox Film Corporation ("Fox"), one of the plaintiffs in this action and make this declaration to counter any suggestion by defendants, or the declarants on their behalf, that DeCSS does not pose a real and imminent threat to my company or its business. I will not detail here the considerable reputation and magnitude of Fox's business in the production and distribution of motion pictures, or the financial and other costs associated with the creation and production of major motion picture films, since the Court has already recognized and addressed this in its earlier opinion in this case.

2. There has been an almost daily barrage in the media about the significance of new technologies such as "Napster" and their impact upon traditional business models when unauthorized copies of a work can be obtained over the Internet for virtually no cost. other than the investment in a computer.

3. I take strong exception to defendants' claim that DeCSS does not cause, contribute to or facilitate the unauthorized copying or "piracy" of motion picture films. As has been widely reported in the media, the technology already exists to compress and transmit sizeable files over the Internet, including files containing feature-length motion pictures. A number of these new technologies are explained in detail in the accompanying declaration of Robert Schumann and I respectfully refer the Court to that declaration.

4. The sole and admitted function of DeCSS is to decrypt CSS (in this case. motion picture films released on CSS-encrypted DVD discs). DeCSS is a key element in the new wave of socalled file-sharing technologies that make it possible for millions of computer users to decrypt, compress, transmit and reproduce unauthorized copies of motion picture films over the Internet.

5. I am aware of the impact that Napster and like systems have had on the audio recording industry within the last year. It is well known that Napster has gained a strong foothold into the college community and makes it appear that the "sharing" of computer files containing unauthorized recordings is an innocuous activity. This technology has created an atmosphere of legitimacy to what is otherwise plainly infringing conduct. It has made individual computer users publishers of a vast amount of copyrighted material that is available for further, unauthorized copying by others. This is not "commercial piracy" in the conventional sense (i.e., a factory which creates numerous counterfeit copies for resale), but is just as damaging and may ultimately prove more insidious. Given the exponential growth of these so-called file-sharing technologies among computer users in the mainstream, there is a real likelihood that the injury caused by vast numbers of people trading unauthorized copies of films and other entertainment products over the Internet will dwarf more "traditional," commercial piracy operations.

6. For these reasons, I believe that it is essential that the Court prevent the wholesale proliferation of DeCSS by the defendants in this case. While my company has great respect for First Amendment rights and has no intention of trammeling on anyone's right to engage in debate, comment or criticism of anybody or anything, I do not believe that treating the proliferation of a decryption device, such as DeCSS. as an exercise in "free speech" is to anyone's long term benefit, least of all the public's. It is my understanding that Congress enacted the circumvention provisions of the Digital Millennium Copyright Act precisely to preserve the rights of copyright holders in works embodied in digital media because of the threat of unbridled duplication and transmission via digital technologies. This protection against trafficking in circumvention devices has, at its core, the goal of encouraging artists and creators to produce works of creative expression by protecting copyrighted works from the threat of exponential digital duplication and transmission on the Internet.

7. I respectfully request that the Court not let defendants pervert the very meaning and purpose of this statute -- aimed at protecting copyrighted works and creativity in the ditial age -- by claiming that their trafficking in such a device should itself be regarded as an exercise in free speech which has no real economic or other impact on copyright holders. The fact is that unauthorized decryption of CSS-protected DVD movies makes it possible for persons to engage in widespread acts of copyright infringement. Nothing defendants say about the sanctity of their rights of free speech changes that reality or the threat to my company's business taht results from such acts.

I declare, under penalty of perjury, that the foregoing is true and correct.

Dated: June 1, 2000

[Signature]

Daphne Gronich

[3 pages.]

Hoy Declaration

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
___________________________________________ UNIVERSAL CITY STUDIOS, INC.; PARAMOUNT PICTURES CORPORATION; METRO-GOLDWYN-MAYER STUDIOS INC.; TRISTAR PICTURES, INC.; COLUMBIA PICTURES INDUSTRIES, INC.; TIME WARNER ENTERTAINMENT CO., L.P.; DISNEY ENTERPRISES, INC.; AND TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs, v. SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN," 2600 ENTERPRISES, INC. and ROMAN KAZAN, Defendants. ___________________________________________	| | | | | | | | | | | | | | | | | | |	Case Nol. 00 Civ. 0277 (LAK) DECLARATION OF JOHN J. HOY

I, JOHN J. HOY, hereby declare and state as follows:

1. I am currently the President and Chief Operating Officer of DVD COPY CONTROL ASSOCIATION, INC. ("DVD CCA"), a not-for profit corporation, which has been served with a third-party subpoena in this action by defendants Eric Corley, a/k/a "Emmanuel Goldstein" and 2600 Enterprises, Inc., and has been requested to produce documents and submit to a deposition in accordance with that subpoena. I make this Declaration (1) to correct the factual misstatements contained in Paragraph 8 of the Declaration of Matt Pavlovich, dated April 30, 2000, which was filed in Opposition to Plaintiffs' Motion to Modify the Preliminary Injunction and in Support of Defendants' Cross-Motion to Vacate the Preliminary Injunction ("Pavlovich Declaration"), and (2) to clarify certain matters relating the licensing of the Content Scrambling System ("CSS"). With respect to the Pavlovich Declaration, I address here only the statements made in Paragraph 8 of his Declaration.

2. By way of background, DVD CCA was formed in December 1998 as a Delaware not-for-profit trade association for the purpose of administering the license agreements for CSS. a proprietary technology which was developed to protect copyrighted material contained on Digital Versatile Discs ("DVDs"), including motion pictures. DVD CCA currently is the sole duly-authorized licensor of CSS technology.

3. Beginning on or about October 31, 1996, DVD CCA's predecessor-in-interest began licensing CSS technology pursuant to an agreement that later became the Amended and Restated CSS Interim License Agreement, including the and Amended and Restated Technical Specifications (collectively, the "CSS Agreement"). Since that time, hundreds of licensees have entered into the CSS Agreement. The CSS Agreement sets forth the terms and conditions under which the CSS licensing entity (currently DVD CCA) would grant licenses to, among others, manufacturers of DVD players or DVD drives and related hardware and software. Licensees of CSS were granted the right to use the proprietary CSS system on DVD products and agreed to safeguard the CSS technology from public disclosure.

4. Paragraph 8 of the Pavlovich Declaration contains several misstatements about the terms of the CSS Agreement:

(a) First, Mr. Pavlovich states that "a potential licensee must post a security of between $750,000 and $one million, which would be forfeited if the licensee ever breached the license." (Pavlovich Decl., ¶ 8). This is untrue. The CSS Agreement does not, and has never, contained any provision requiring a licensee to post any security deposit in order to become a CSS licensee.

(b) Second, Mr. Pavlovich states that "the DVD CCA, which I understand is a non-profit industry association, also apparently requires a 6% royalty on all sales." (Id.) Again, this is untrue. The CSS Agreement does not, and has never, contained any provision requiring any licensee to pay a royalty on sales of products utilizing CSS.

(c) Third, Mr. Pavlovich states that he was "informed by an individual that his company's request for a CSS license was rejected because the company was 'unknown.' " (Id.) I know of no applicant for a CSS license which was rejected on the grounds that it was "unknown."

5. I also submit this Declaration to clarify that CSS was developed to address the concerns of the motion picture studios that, before allowing their copyrighted content to be distributed on DVDs, a viable protection system had to be put in place to prevent users from gaining unauthorized access to the studios' copyrighted content and from making copies of the motion pictures. The effectiveness of CSS was dependent on the adoption of thc CSS technology not only by the content providers (the motion picture studios) but also by the information technology and consumer electronics industries, the companies which manutacture and sell the software and hardware (e.g., DVD players and DVD drives) necessary for the playback of DVDs. The CSS system relies upon the licensing of companies which utilize the proprietary CSS technology. The system is effective because the products manufactured by CSS licensces do not allow access to or copying of the digital data stream, but only permit the data stream to be sent into a playback device for viewing. Thus, the licensing of playback devices, such as DVD players and personal computer DVD drives, is critical to the CSS technology.

I state under penalty of perjury that the foregoing is true and correct.

Dated: June 1, 2000
Morgan Hill, California

[Signature]

John J. Hoy

[4 pages.]

Boyden Declaration

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (JB-7091)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

BRUCE E. BOYDEN, being an attorney duly admitted to practice before this Court, hereby declares as follows under penalty of perjury:

1. I am an attorney associated with Proskauer Rose LLP, attorneys for the plaintiffs in the above-captioned matter. I have previously filed three declarations in this action regarding the defendants' posting and linking activities, and now submit this declaration in further support of plaintiffs' motion to modify, and in opposition to defendants' motion to vacate, the preliminary injunction.

2. On May 23, 2000, I revisited the web site of defendants Eric Corley alkla "Emmanuel Goldstein" and 2600 Enterprises, Inc. at http://www.2600.com (the "2600 Site"). There, the defendants were still maintaining a "mirror list" of hyperlinks to sites where users could go to obtain the illegal DeCSS utility at issue in this case. As of that date, the number of hyperlinks on the mirror list had been increased to 443. At the end of that mirror list, defendants were still providing input fields where users are instructed to "submit your mirror site containing [DeCSS] files," as described in paragraph 5 of my declaration in support of plaintiffs' motion to modify the preliminary injunction, dated April 13, 2000 ("Supp. Boyden Decl."); the home page of the 2600 Site still appeared as described in paragraph 6 of that declaration.

3. As part of my investigation, on May 23 and 24, I, and another Proskauer Rose LLP attorney acting under my supervision, visited all 443 web sites linked to by the defendants via their mirror list. We found that 152 of the 443 linked-to sites were no longer active (i.e., the linked-to site was inaccessible even though the link was present on the 2600 Site), leaving a total of 291 active linked-to sites.

4. Of those 291 sites, 209 -- the vast majority (over 70%) -- contained DeCSS in object code format. (Thirty-four of these 209 appeared to contain DeCSS in source code format as well; only 7 of the 291 active sites contained what appeared to be DeCSS source code, but did not contain DeCSS object code). See Plaintiff's Memorandum of Law in Opposition to the Cross-Motion to Vacate the Preliminary Injunction at 27.)

5. Of the 209 sites containing DeCSS object code, 141 offered DeCSS with little or no commentary of any kind; that is, they contained little beyond a hyperlink to the DeCSS file. (See, e.g., Supp. Boyden Decl. ¶ 9 & Ex. H.)

6. The remaining 68 sites -- also containing DeCSS object code -- contained some commentary, generally requiring the user to scroll down a screen or two after clicking on the defendants' hyperlink in order to find the DeCSS file. (See, e.g., Supp. Boyden Decl. ¶ 10 & Ex. I.) Of those 68 sites, 46 had commentary which had nothing to do with research, academic study. cryptography, or reverse engineering. Of the 22 sites offering DeCSS object code along with some research, academic study, cryptography, or reverse engineering premise, six offered DeCSS and also linked to articles about CSS technology. Fifteen ofthe remaining 16 sites offered DeCSS object code accompanied by cursory statements such as "for educational purposes only," "use this for testing only," "we are here to protect the right to reverse engineer," or "this information is to be used strictly for educational purposes in the hopes to further cryptographic technology."

7. The remaining site, belonging to declarant David Touretzky, was constructed in its current form only after, and in response to, the Court's January 20, 2000 temporary injunction order. (See Touretzky Decl. ¶ 2). And while Touretzky's site provides various iterations of the CSS and DeCSS source codes, the only "academic" discussion of that code is to illustrate that there is no meaningful distinction between the source code and object code versions of DeCSS as an executable utility. (< <http://www.cs.cmu.edu/~dst/DeCSS >>).

8. In their papers, defendants point to five sites as illustrative of "scholarly/academic web sites posting DeCSS." (See Appel Decl. ¶ 14; Young Decl. ¶ 2.) However, four out of these five sites are not among those linked to by defendants' site. The remaining site, that of declarant Touretzky, is discussed above.

I declare under penalty of perjury that the foregoing is tue and correct.

Executed: Burlington, Vermont
                 June 2, 2000

[Signature]

Bruce E Boyden (BB-5278)

[18 exhibits omitted here.]

Exhibit 1 (3 pages): http://newsweek.com/nw-srv/printed/us/st/a17558-2000mar19.htm

Exhibit 2 (2 pages): The New York Times.

Exhibit 3 (7 pages): http://www.msnbc.com/news/402970.asp

Exhibit 4 (2 pages): http://www.fortune.com/fortune/2000/03/20/nap.html

Exhibit 5 (1 page): The New York Times.

Exhibit 6 (6 pages, The Washington Post, 2 pages Yahoo): http://dailynews.yahoo.com/h/eo/20000530/en/hollywood_versus_video_napsters_1.html

Exhibit 7 (4 pages): The Toronto Star.

Exhibit 8 (1 page): http://gnutella.wego.com/go/wego.p...page&folderId=116767&pageId=119478

Exhibit 9 (2 pages, 2 pages, 1 page): http://www.dirtcheapdrives.com/cgi-bin/prodlister.exe
http://www.dirtcheapdrives.com/welcome_pages/shared_w/sony_welcome.asp
http://www.dirtcheapdrives.com/cgi-bin/prodlister.exe

Exhibit 10 (3 pages, 1 page):
http://www.sigmadesigns.com/press/000201.htm
http://www.newsalert.com/bin/story...ux&Nav=na-search-&StoryTitle=Linux

Exhibit 11 (3 pages): Three e-mail messages, From: raubitsj@writeme.com, pvolcko@concentric.net, yngvi@saga.is; Subject: [LinuxDVD] Current Progress? -- Using WINE; Date: 1 Sep 1999.

Exhibit 12 (2 pages, 2 pages):
http://www.dvdit.com/features.html
http://store.dvdit.com/store/page2.asp

Exhibit 13 (1 page): E-mail message, From: Ralph_Giles@sfu.ca; Subject: [Livid-dev] CSS encryption already broken?; Date: 26 Aug 1999.

Exhibit 14 (2 pages): Pages 165 and 173 of Schumann Deposition.

Exhibit 15 (8 pages): Pages 83-88 of Schumann Deposition.

Exhibit 16 (4 pages): Schuman "test HTML file."

Exhibit 17 (4 pages): Start and end pages of Levy and Gross affidavits.

Exhibit 18 (2 pages): Reduced pages 80-87, January 20, 2000 transcript of hearing in Universal city Studios, Inc. et al. v. Shawn C. Reimerders.

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