UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BRIEF SUBMITTED BY PROFESSOR YOCHAI BENKLER AS
AMICUS CURIAE IN SUPPORT OF DEFENDANT’S
CROSS-MOTION TO VACATE THE PRELIMINARY INJUNCTION

The undersigned respectfully submits this brief amicus curiae in support of defendant’s motion to vacate the injunction.

As applied to this case, Section 1201(a)(2) of the Copyright Act, introduced by the Digital Millennium Copyright Act ("DMCA") (the "antidevice provision") violates the First Amendment. If, as plaintiffs contend, the DMCA created a new, absolute right to prevent unauthorized access to digital works, whether or not the use made is privileged under general copyright law, then it imposes too great a burden on valuable speech without redressing a real harm that the law may legitimately address given that burden.

The DMCA’s constitutional infirmity does not depend on whether the code of DeCSS is itself protected speech. DeCSS enables its users to make uses—like quoting from a movie—that are both constitutionally protected and privileged under the Copyright Act. What renders the DMCA unconstitutional is the burden it imposes on these privileged uses.

DeCSS is a device that enables users to use their DVDs in ways that they are privileged to use them under copyright law. It enables users to select equipment of their choice to view the movies, to show them to friends abroad, or to make fair use of video materials, like briefly quoting from them for purposes of criticism or commentary. The antidevice provision, however, prohibits such enabling devices. This Court has held that Congress chose not to subject that provision to the general fair use exception. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 219 (2000). The Brief of Professor Charles R. Nesson as amicus curie invites the Court to revisit that holding, and to read a fair use defense into the antidevice provision. The plaintiffs contend, to the contrary, that this prohibition is a new, absolute right to prevent access to digitized works, that Congress purposefully did not subject to fair use. If the Court finds that the antidevice provision indeed does not admit the curative implication of a fair use exception, I respectfully submit that the DMCA violates the First Amendment, because it has fundamentally altered the contours of copyright law and undermined "the First Amendment protections . . . embodied in the . . . latitude for scholarship and comment traditionally afforded by fair use," Harper & Row, Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 560 (1985) ("Harper & Row").

The plaintiffs argue that the Court owes deference to the judgments of Congress with regard to the DMCA. Where, however, the constitutionality of the Congress’s action is in question, the Court, while not exercising de novo review of the law’s wisdom, must "exercise independent judgment of the facts bearing on an issue of constitutional law." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665 (1994) ("Turner I"), quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989). This is a particularly important role with respect to constitutional review of new rights to control information, because the peculiar economics of information production cause the benefits of strong property rights to be presented to Congress more completely than the costs, whereas courts do no necessarily suffer this imbalance. Contrary to plaintiffs’ argument, it is precisely the province of this Court to consider independently whether this remarkable extension of copyright owners’ power to extinguish privileged uses of their works "sacrifice[s] important First Amendment interests for too speculative a gain." Denver Area Educational Television Consortium v. FCC, 518 U.S. 727, 760 (1996) (citing Columbia Broad. v. Democratic Nat'l Convention, 412 U.S. 94, 127 (1973)); FCC v. League of Women Voters, 468 U.S. 364, 397 (1984).

I submit this brief as a professor who teaches information and communications law and policy, and has published on Internet law generally and on the constitutional limitations within which Congress acts when it enacts private rights of the type asserted by the plaintiffs. I write to address the proper constitutional burden that Congress must bear if it is to create absolute rights—of the type that plaintiffs claim—to design the technology of public discourse in the digital information environment.

I. The Proper Standard of Review is Provided by O’Brien and Turner

In Harper & Row the Supreme Court refused to create a special "first amendment" exception to copyright law "[i]n view of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use. . . ." 471 U.S. at 560. That the careful design of copyright law obviates the need for a special additional "First Amendment exception" does not, however, mean that Congress is free of judicial scrutiny under the First Amendment when it designs the speech-protecting contours of copyright law. Nothing in Harper & Row suggests that Congress could simply repeal the idea/expression dichotomy or the fair use privilege. Quite the contrary—the decision underscored the Supreme Court’s express reliance on these use privileges to permit copyright law to dwell in peace with the First Amendment. The constitutional question before this Court is therefore not whether DeCSS is exempt from copyright law or the DMCA because the code it prohibits—DeCSS—is itself speech. Rather, it is whether Congress acted within its constitutional bounds when it enacted the antidevice provision of the DMCA—as plaintiffs seek to apply it in this case—or whether the DMCA so applied undermines "the First Amendment protections . . . embodied in the Copyright Act. . . ." to the point of rendering it unconstitutional.

The DMCA is, for constitutional purposes, equivalent to media regulation laws, such as the cable "must carry" rules. Like them, the DMCA is a law that has the intended effect of restricting the speech of some individuals. For example, DVD owners may wish to show their DVD to a friend abroad, but are prevented from doing so by regional coding. They may wish to quote a brief snippet of video, but are prevented by the encryption. The DMCA prohibits the decryption they would have to perform to show their DVD to the friend or to quote from a movie. Like media laws, however, these purposeful restrictions on speech are benign in intention. Like "must carry" rules, modern copyright and the DMCA as its extension are intended not to censor speech, but to enhance and diversify speech. Copyright is intended to be "the engine of free expression." Harper & Row, 471 U.S. at 558. The DMCA’s prohibition is presented as intended to aid that role in a new technological context. Such laws, which are content-neutral and restrict speech in pursuit of a valid government interest, are subject to what has come to be known as the O’Brien test. United States v. O'Brien, 391 U.S. 367 (1968). This test has been more recently restated as applied to benign regulations of information production and exchange in Turner I. See generally Y. Benkler, Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain 74 N.Y.U. L. Rev. 354 (1999).

Content-neutral laws that burden speech must (1) serve an important government interest (2) in a manner no more restrictive than necessary. Turner I, 512 U.S. at 662. To fulfill the first prong of the test, it must be shown "that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id., at 664. The second prong requires that "the means chosen do not ‘burden substantially more speech than is necessary to further the government's legitimate interests’". Id., at 662.

2. The Antidevice Provision as Applied Here Burdens Too Much Privileged Speech, With No Explanation for Why a New Absolute Right to Control Access is Necessary

If the antidevice provision is indeed a new, absolute right to prevent unauthorized access to copyrighted works, it has little to do with the carefully balanced law that is copyright, or with "mak[ing] digital networks safe places to disseminate copyrighted works." S. Rep. No. 195-190, 105^th Cong. 2d Sess. (1998); Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 221 (2000). Applying the antidevice provision to burden valuable speech that is privileged under general copyright law cannot enhance the enforceability of copyright in digital works. The incremental increase in the rents owners of copyrighted works gain from exercising this new right in a new medium cannot justify the elimination of the traditional protections of free speech embodied in copyright as we move our cultural conversation to the digital environment.

Defendants have introduced a series of affidavits explaining that DeCSS cannot in fact be used for "piracy"—commercial copying and distribution of copyrighted works. If the defendants are right about the implausibility of using a device like DeCSS for widespread copying and distribution of movies—rather than for personal access—then the harm supposedly addressed by enjoining it under the antidevice provision is remote and conjectural. Plaintiffs claim otherwise. They rely on a series of predictions about the future evolution of distribution technologies and consumption patterns—whereby unauthorized individual access in digital form would be so simple that users would stop attending movie houses, renting DVDs or VHS cassettes etc., and thereby radically undermine the economics of movie production. The solution that Congress chose to avoid this horrific scenario, so the plaintiffs claim, is to create in the DMCA a new absolute right. This right empowers owners of copyrighted works to decide which equipment the owners of copies of their works must use to access them, and to prevent all access to the work, whether the access is gained to make uses traditionally considered privileged under the Copyright Act or not. It is the purported new burden on these privileged uses that presents the First Amendment cost that those who rely on the antidevice provision must justify. And it is the failure to justify prohibition of circumvention in aid of making privileged uses that renders the antidevice provision unconstitutional as applied to devices that enable such uses.

Uses privileged under general copyright law—particularly those privileged as fair use or those not subject to the owners' exclusive rights to begin with—cannot be thought to undermine the efficacy of copyright. As a matter of standard economic theory, absolute property rights in intellectual products are not optimal—some measure of use rights is necessary to temper the monopoly effects of recognizing intellectual property rights. See Benkler, Constitutional Bounds, 15 Berkeley Tech. L.J. at 542-43, 553-54. As a matter of constitutional theory, these are precisely the uses that the Supreme Court considered germane to the role of copyright as "the engine of free expression." Id., at 554-55.

DeCSS enables users to use DVDs in ways that they are privileged to use them under the Copyright Act. First, DeCSS enables users to quote from movies in ways that they are privileged to do under the fair use doctrine. Where a user’s quotation complies with the traditional tests for fair use, users are privileged under the fair use doctrine to quote from works in order to report on them, criticize them, parody them, or more generally use them as elements in their own transformative works. Encryption that prevents copying from video materials effectively prevents such quotations from video materials. With textual works, such quotation-preventing devices can be often be avoided simply by "writing down" the words of the original without mechanical access to the original. But even the most brief of quotations from video materials requires mechanical copying. Video materials distributed in digital form therefore cannot be quoted without decryption if the original is encrypted—and if we are indeed at the dawn of "the Digital Millennium" all video will soon be distributed solely in digital form.

Imagine a ten-year-old girl doing her homework on the history of the Holocaust. Her multimedia paper includes a clip from Schindler’s List, in which Oscar Schindler looks over a town and sees a little girl, in red, the only color image on the screen, walking through the pandemonium. In her paper, the child superimposes her own face over that of the girl in the film. The paper is entitled "My Grandmother." Or imagine a professor of critical film theory putting together a series of illustrations of sexist or racist stereotyping in Hollywood movies. DeCSS would enable such quotations, which are otherwise rendered impossible by of the encryption system with which DVDs are distributed. Cf. Declaration of John Gilmore ("Gilmore Decl.") ¶13 (describing how users could make a personalized video clip).

To answer, as the plaintiffs have answered Professor Nesson’s amicus brief, that our little girl should use a VHS-tape for her project mocks the speech-protective role of fair use. If the "Digital Millennium" is upon us, and if plaintiffs need new expansive rights because digital distribution is the future, then the empty reassurance of access to obsolete distribution media is inadequate to serve the First Amendment interests secured by fair use. If, on the other hand, digital distribution media will remain only one of many distribution methods, then the breathtaking expansion of rights the plaintiffs claim is truly unnecessary. Either a viable business model for digital distribution will emerge, or it will not, but this small question of how to increase the plaintiffs’ ability to extract higher rents from one more medium of distribution is not worth undermining the traditional balance between the First Amendment and copyright.

Second, copyright gives owners limited exclusive rights, not absolute residual rights like those usually associated with property in land or chattels. That Act does not include among the owner’s exclusive rights the right to determine the equipment that a user must use to read, view, or listen to a work. DVD vendors nonetheless attempt to control the equipment their users may use. Their products are designed so that they cannot be played on equipment worldwide, but only in segments of the global market. This allows them to discriminate in pricing among different regions in the world. See Gilmore Decl. ¶10. There is nothing illegal in this practice, but copyright law does not entitle copyright owners to be aided by the government if users prefer to use different equipment. A benefit of DeCSS is that under many circumstances it allows users to take DVDs from one region and play them elsewhere. A British user can take his DVD and show it to friends in the United States, to illustrate to them, say, British cultural quirks. Cf. id. DeCSS is, in fact, primarily intended to enable users to select the equipment of their choice—to play DVDs on Linux-machines, See Declaration of Matt Pavlovich ¶¶2-6; Gilmore Decl. ¶¶15-16—something they are perfectly privileged to do under copyright law.

In the face of its effects on privileged uses, plaintiffs claim that Congress passed the DMCA’s prohibition on circumvention per se, rather than a prohibition on circumvention to infringe copyright, thereby creating a breathtakingly broad new and absolute right to control all access to works in the digital environment. They claim that Congress also passed an absolute prohibition on all devices that could be used to access a work without authorization. This supposed new right to prevent technological development inconvenient to their business model is so absolute, it seems, that it prohibits even devices that can be used to gain access to works where such access is privileged under the DMCA itself, let alone traditional copyright. See Plaintiffs’ Memorandum of Law in Opposition to Cross-Motion 6-8, 11-13.

On plaintiffs’ interpretation, a court could find our imaginary little girl privileged to quote from Schindler’s List under fair use, the Librarian of Congress could grant her a privilege to circumvent under the DMCA, and still it would be illegal for anyone to provide her with the means to author "My Grandmother." Only those who have decryption skills may quote or speak by creative transformation in the brave new digital world the plaintiffs portray. See Benkler, Free as the Air to Common Use, 74 N.Y.U. L. Rev. at 427-29. If this is indeed the effect of the DMCA, Congress reached it with no consideration of its necessity or the possibility of narrower, less restrictive means. See id., at 422-26. This radical evisceration of the traditional means of accommodation between the First Amendment and copyright cannot be sustained on such slim grounds.

If the Court accepts the plaintiffs’ interpretation of the DMCA, then I respectfully submit that the antidevice provision is unconstitutional as applied to devices, like DeCSS, that enable substantial uses that either do not infringe upon the exclusive rights of copyright owners or—like fair use—are privileged under general copyright law. As plaintiffs here seek to apply it, the antidevice provision imposes too great a burden on speech for too speculative a gain to withstand First Amendment scrutiny.

Dated: June 12, 2000