STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
November 28, 2001
Before: NEWMAN and
CABRANES, Circuit Judges, and THOMPSON, District Judge.
Appeal from the amended
final judgment of the United States District Court for the Southern District of
New York (Lewis A. Kaplan, District Judge), entered August 23, 2000, enjoining
Appellants from posting on their web site a computer program that decrypts the
encryption code limiting access to DVD movies, and from linking to other web
sites containing the decryption program.
JON O. NEWMAN,
When the Framers of the
First Amendment prohibited Congress from making any law "abridging the
freedom of speech," they were not thinking about computers, computer
programs, or the Internet. But neither were they thinking about radio,
television, or movies. Just as the inventions at the beginning and middle of the
20th century presented new First Amendment issues, so does the cyber revolution
at the end of that century. This appeal raises significant First Amendment
issues concerning one aspect of computer technology--encryption to protect
materials in digital form from unauthorized access. The appeal challenges the
constitutionality of the Digital Millennium Copyright Act ("DMCA"), 17
U.S.C. § 1201 et seq. (Supp. V 1999) and the validity of an injunction entered
to enforce the DMCA.
Eric C. Corley and his company, 2600 Enterprises, Inc., (collectively "Corley,"
"the Defendants," or "the Appellants") appeal from the
amended final judgment of the United States District Court for the Southern
District of New York (Lewis A. Kaplan, District Judge), entered August 23, 2000,
enjoining them from various actions concerning a decryption program known as
"DeCSS." Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d
346 (S.D.N.Y. 2000) ("Universal II"). The injunction primarily bars
the Appellants from posting DeCSS on their web site and from knowingly linking
their web site to any other web site on which DeCSS is posted. Id. at 346-47. We
pending appeal and the issues it raises requires some familiarity with technical
aspects of computers and computer software, especially software called
"digital versatile disks" or "DVDs," which are optical media
storage devices currently designed to contain movies.1
Those lacking such familiarity will be greatly aided by reading Judge Kaplan's
extremely lucid opinion, Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.
2d 294 (S.D.N.Y. 2000) ("Universal I"), beginning with his helpful
section "The Vocabulary of this Case," id. at 305-09.
This appeal concerns
the anti-trafficking provisions of the DMCA, which Congress enacted in 1998 to
strengthen copyright protection in the digital age. Fearful that the ease with
which pirates could copy and distribute a copyrightable work in digital form was
overwhelming the capacity of conventional copyright enforcement to find and
enjoin unlawfully copied material, Congress sought to combat copyright piracy in
its earlier stages, before the work was even copied. The DMCA therefore backed
with legal sanctions the efforts of copyright owners to protect their works from
piracy behind digital walls such as encryption codes or password protections. In
so doing, Congress targeted not only those pirates who would circumvent these
digital walls (the "anti- circumvention provisions," contained in 17
U.S.C. § 1201(a)(1)), but also anyone who would traffic in a technology
primarily designed to circumvent a digital wall (the "anti-trafficking
provisions," contained in 17 U.S.C. § 1201(a)(2), (b)(1)).
Corley publishes a
print magazine and maintains an affiliated web site geared towards "hackers,"
a digital-era term often applied to those interested in techniques for
circumventing protections of computers and computer data from unauthorized
access. The so-called hacker community includes serious computer-science
scholars conducting research on protection techniques, computer buffs intrigued
by the challenge of trying to circumvent access- limiting devices or perhaps
hoping to promote security by exposing flaws in protection techniques,
mischief-makers interested in disrupting computer operations, and thieves,
including copyright infringers who want to acquire copyrighted material (for
personal use or resale) without paying for it.
In November 1999,
Corley posted a copy of the decryption computer program "DeCSS" on his
web site, http://www.2600.com ("2600.com").2
DeCSS is designed to circumvent "CSS," the encryption technology that
motion picture studios place on DVDs to prevent the unauthorized viewing and
copying of motion pictures. Corley also posted on his web site links to other
web sites where DeCSS could be found.
are eight motion picture studios that brought an action in the Southern District
of New York seeking injunctive relief against Corley under the DMCA. Following a
full non-jury trial, the District Court entered a permanent injunction barring
Corley from posting DeCSS on his web site or from knowingly linking via a
hyperlink to any other web site containing DeCSS. Universal II, 111 F. Supp. 2d
at 346-47. The District Court rejected Corley's constitutional attacks on the
statute and the injunction. Universal I, 111 F. Supp. 2d at 325-45.
Corley renews his
constitutional challenges on appeal. Specifically, he argues primarily that: (1)
the DMCA oversteps limits in the Copyright Clause on the duration of copyright
protection; (2) the DMCA as applied to his dissemination of DeCSS violates the
First Amendment because computer code is "speech" entitled to full
First Amendment protection and the DMCA fails to survive the exacting scrutiny
accorded statutes that regulate "speech"; and (3) the DMCA violates
the First Amendment and the Copyright Clause by unduly obstructing the
"fair use" of copyrighted materials. Corley also argues that the
statute is susceptible to, and should therefore be given, a narrow
interpretation that avoids alleged constitutional objections.
For decades, motion
picture studios have made movies available for viewing at home in what is called
"analog" format. Movies in this format are placed on videotapes, which
can be played on a video cassette recorder ("VCR"). In the early
1990s, the studios began to consider the possibility of distributing movies in
digital form as well. Movies in digital form are placed on disks, known as DVDs,
which can be played on a DVD player (either a stand- alone device or a component
of a computer). DVDs offer advantages over analog tapes, such as improved visual
and audio quality, larger data capacity, and greater durability. However, the
improved quality of a movie in a digital format brings with it the risk that a
virtually perfect copy, i.e., one that will not lose perceptible quality in the
copying process, can be readily made at the click of a computer control and
instantly distributed to countless recipients throughout the world over the
Internet. This case arises out of the movie industry's efforts to respond to
this risk by invoking the anti-trafficking provisions of the DMCA.
The movie studios were
reluctant to release movies in digital form until they were confident they had
in place adequate safeguards against piracy of their copyrighted movies. The
studios took several steps to minimize the piracy threat. First, they settled on
the DVD as the standard digital medium for home distribu tion of movies. The
studios then sought an encryption scheme to protect movies on DVDs. They
enlisted the help of members of the consumer electronics and computer industries,
who in mid-1996 developed the Content Scramble System ("CSS"). CSS is
an encryp tion scheme that employs an algorithm configured by a set of "keys"
to encrypt a DVD's contents. The algorithm is a type of mathemati cal formula
for transforming the contents of the movie file into gibberish; the "keys"
are in actuality strings of 0's and 1's that serve as values for the
mathematical formula. Decryption in the case of CSS requires a set of "player
keys" contained in compliant DVD players, as well as an understanding of
the CSS encryption algorithm. Without the player keys and the algorithm, a DVD
player cannot access the contents of a DVD. With the player keys and the
algorithm, a DVD player can display the movie on a television or a computer
screen, but does not give a viewer the ability to use the copy function of the
computer to copy the movie or to manipulate the digital content of the DVD.
The studios developed a
licensing scheme for distributing the technology to manufacturers of DVD players.
Player keys and other information necessary to the CSS scheme were given to
manufacturers of DVD players for an administrative fee. In exchange for the
licenses, manufacturers were obliged to keep the player keys confidential.
Manufacturers were also required in the licensing agreement to prevent the
transmission of "CSS data" (a term undefined in the licensing
agreement) from a DVD drive to any "internal recording device,"
including, presumably, a computer hard drive.
technology and licensing agreements in hand, the studios began releasing movies
on DVDs in 1997, and DVDs quickly gained in popularity, becoming a significant
source of studio revenue.3 In 1998, the studios
secured added protection against DVD piracy when Congress passed the DMCA, which
prohibits the development or use of technology designed to circumvent a
technological protection measure, such as CSS. The pertinent provisions of the
DMCA are examined in greater detail below.
In September 1999, Jon
Johansen, a Norwegian teenager, collaborating with two unidentified individuals
he met on the Internet, reverse engineered a licensed DVD player designed to
operate on the Microsoft operating system, and culled from it the player keys
and other information necessary to decrypt CSS. The record suggests that
Johansen was trying to develop a DVD player operable on Linux, an alternative
operating system that did not support any licensed DVD players at that time. In
order to accomplish this task, Johansen wrote a decryption program executable on
Microsoft's operating system.4 That program was
called, appropri- ately enough, "DeCSS."
If a user runs the
DeCSS program (for example, by clicking on the DeCSS icon on a Microsoft
operating system platform) with a DVD in the computer's disk drive, DeCSS will
decrypt the DVD's CSS protection, allowing the user to copy the DVD's files and
place the copy on the user's hard drive. The result is a very large computer
file that can be played on a non CSS compliant player and copied, manipulated,
and transferred just like any other computer file.5
DeCSS comes complete with a fairly user friendly interface that helps the user
select from among the DVD's files and assign the decrypted file a location on
the user's hard drive. The quality of the resulting decrypted movie is "virtually
identical" to that of the encrypted movie on the DVD. Universal I, 111 F.
Supp. 2d at 308, 313. And the file produced by DeCSS, while large, can be
compressed to a manageable size by a compression software called "DivX,"
available at no cost on the Internet. This compressed file can be copied onto a
DVD, or transferred over the Internet (with some patience).6
Johansen posted the
executable object code, but not the source code, for DeCSS on his web site. The
distinction between source code and object code is relevant to this case, so a
brief explanation is warranted. A computer responds to electrical charges, the
presence or absence of which is represented by strings of 1's and 0's. Strictly
speaking, "object code" consists of those 1's and 0's. Trial Tr. at
759 (Testimony of Professor Edward Felton). While some people can read and
program in object code, "it would be inconvenient, inefficient and, for
most people, probably impossible to do so." Universal I, 111 F. Supp. 2d at
306. Computer languages have been written to facilitate program writing and
reading. A program in such a computer language- BASIC, C, and Java are examples
is said to be written in "source code." Source code has the benefit of
being much easier to read (by people) than object code, but as a general matter,
it must be translated back to object code before it can be read by a computer.
This task is usually performed by a program called a compiler. Since computer
languages range in complexity, object code can be placed on one end of a
spectrum, and different kinds of source code can be arrayed across the spectrum
according to the ease with which they are read and understood by humans. See
Trial Exhibits BBC (Declaration of David S. Touretzky), BBE (Touretzky Article:
Source v. Object Code: A False Dichotomy). Within months of its appearance in
executable form on Johansen's web site, DeCSS was widely available on the
Internet, in both object code and various forms of source code. See Trial
Exhibit CCN (Touretzky Article: Gallery of CSS Descramblers).
In November 1999,
Corley wrote and placed on his web site, 2600.com, an article about the DeCSS
phenomenon. His web site is an auxiliary to the print magazine, 2600: The Hacker
Quarterly, which Corley has been publishing since 1984.7
As the name suggests, the magazine is designed for "hackers," as is
the web site. While the magazine and the web site cover some issues of general
interest to computer users -such as threats to online privacy- the focus of the
publications is on the vulnerability of computer security systems, and more
specifically, how to exploit that vulnerability in order to circumvent the
security systems. Representative articles explain how to steal an Internet
domain name and how to break into the computer systems at Federal Express.
Universal I, 111 F. Supp. 2d at 308-09.
Corley's article about
DeCSS detailed how CSS was cracked, and described the movie industry's efforts
to shut down web sites posting DeCSS. It also explained that DeCSS could be used
to copy DVDs. At the end of the article, the Defendants posted copies of the
object and source code of DeCSS. In Corley's words, he added the code to the
story because "in a journalistic world, . . . [y]ou have to show your
evidence . . . and particularly in the magazine that I work for, people want to
see specifically what it is that we are referring to," including "what
evidence . . . we have" that there is in fact technology that circumvents
CSS. Trial Tr. at 823. Writing about DeCSS without including the DeCSS code
would have been, to Corley, "analogous to printing a story about a picture
and not printing the picture." Id. at 825. Corley also added to the article
links that he explained would take the reader to other web sites where DeCSS
could be found. Id. at 791, 826, 827, 848.
2600.com was only one
of hundreds of web sites that began posting DeCSS near the end of 1999. The
movie industry tried to stem the tide by sending cease-and-desist letters to
many of these sites. These efforts met with only partial success; a number of
sites refused to remove DeCSS. In January 2000, the studios filed this lawsuit.8
III. The DMCA
The DMCA was enacted in
1998 to implement the World Intellectual Property Organization Copyright Treaty
("WIPO Treaty"), which requires contracting parties to "provide
adequate legal protection and effective legal remedies against the circumvention
of effective technological measures that are used by authors in connection with
the exercise of their rights under this Treaty or the Berne Convention and that
restrict acts, in respect of their works, which are not authorized by the
authors concerned or permitted by law." WIPO Treaty, Apr. 12, 1997, art.
11, S. Treaty Doc. No. 105-17 (1997), available at 1997 WL 447232. Even before
the treaty, Congress had been devoting attention to the problems faced by
copyright enforcement in the digital age. Hearings on the topic have spanned
several years. See, e.g., WIPO Copyright Treaties Implementation Act and Online
Copyright Liability Limita tion Act: Hearing on H.R. 2281 and H.R. 2280 Before
the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judi
ciary, 105th Cong. (1997); NII Copyright Protection Act of 1995: Hearings on H.R.
2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm.
on the Judiciary, 104th Cong. (1996); NII Copyright Protection Act of 1995:
Joint Hearing on H.R. 2441 and S. 1284 Before the Subcomm. on Courts and
Intellectual Property of the House Comm. on the Judiciary and the Senate Comm.
on the Judiciary, 104th Cong. (1995); H.R. Rep. No. 105-551 (1998); S. Rep. No.
105-190 (1998). This legislative effort resulted in the DMCA.
The Act contains three
provisions targeted at the circumvention of technological protections. The first
is subsection 1201(a)(1)(A), the anti-circumvention provision.9
This provision prohibits a person from "circumvent[ing] a technological
measure that effectively controls access to a work protected under [Title 17,
governing copyright]." The Librarian of Congress is required to promulgate
regulations every three years exempting from this subsection individuals who
would otherwise be "adversely affected" in "their ability to make
noninfringing uses." 17 U.S.C. § 1201(a)(1)(B)-(E).
The second and third
provisions are subsections 1201(a)(2) and 1201(b)(1), the "anti-trafficking
provisions." Subsection 1201(a)(2), the provision at issue in this case,
No person shall
manufacture, import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof, that
(A) is primarily
designed or produced for the purpose of circumventing a technological measure
that effectively controls access to a work protected under this title;
(B) has only limited
commercially signifi cant purpose or use other than to circumvent a
technological measure that effectively controls access to a work protected
under this title; or
(C) is marketed by
that person or another acting in concert with that person with that person's
knowledge for use in circumventing a technological measure that effectively
controls access to a work protected under this title.
Id. § 1201(a)(2). To
"circumvent a technological measure" is defined, in pertinent part, as
"to descramble a scrambled work . . . or otherwise to . . . bypass . . . a
technological measure, without the authority of the copyright owner." Id.
is similar to subsection 1201(a)(2), except that subsection 1201(a)(2) covers
those who traffic in technology that can circumvent "a technological
measure that effectively controls access to a work protected under" Title
17, whereas subsection 1201(b)(1) covers those who traffic in technology that
can circumvent "protection afforded by a technological measure that
effectively protects a right of a copyright owner under" Title 17. Id. §
1201(a)(2), (b)(1) (emphases added). In other words, although both subsections
prohibit trafficking in a circumvention technology, the focus of subsection
1201(a)(2) is circumvention of technologies designed to prevent access to a work,
and the focus of subsection 1201(b)(1) is circumvention of technologies designed
to permit access to a work but prevent copying of the work or some other act
that infringes a copyright. See S. Rep. No. 105-190, at 11-12 (1998). Subsection
1201(a)(1) differs from both of these anti-trafficking subsections in that it
targets the use of a circumvention technology, not the trafficking in such a
The DMCA contains
exceptions for schools and libraries that want to use circumvention technologies
to determine whether to purchase a copyrighted product, 17 U.S.C. 1201(d);
individuals using circumvention technology "for the sole purpose" of
trying to achieve "interoperability" of computer programs through
reverse- engineering, id. 1201(f); encryption research aimed at identifying
flaws in encryption technology, if the research is conducted to advance the
state of knowledge in the field, id. 1201(g); and several other exceptions not
The DMCA creates civil
remedies, id. § 1203, and criminal sanctions, id. § 1204. It specifically
authorizes a court to "grant temporary and permanent injunctions on such
terms as it deems reasonable to prevent or restrain a violation." Id. §
IV. Procedural History
1203(b)(1), the Plaintiffs sought an injunction against the Defendants, alleging
that the Defendants violated the anti trafficking provisions of the statute. On
January 20, 2000, after a hearing, the District Court issued a preliminary
injunction barring the Defendants from posting DeCSS. Universal City Studios,
Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000).
The Defendants complied
with the preliminary injunction, but continued to post links to other web sites
carrying DeCSS, an action they termed "electronic civil disobedience."
Universal I, 111 F. Supp. 2d at 303, 312. Under the heading "Stop the MPAA
[(Motion Picture Association of America)]," Corley urged other web sites to
post DeCSS lest "we . . . be forced into submission." Id. at 313.
The Plaintiffs then
sought a permanent injunction barring the Defendants from both posting DeCSS and
linking to sites containing DeCSS. After a trial on the merits, the Court issued
a comprehensive opinion, Universal I, and granted a permanent injunction,
The Court explained
that the Defendants' posting of DeCSS on their web site clearly falls within
section 1201(a)(2)(A) of the DMCA, rejecting as spurious their claim that CSS is
not a technolog ical measure that "effectively controls access to a work"
because it was so easily penetrated by Johansen, Universal I, 111 F. Supp. 2d at
318, and as irrelevant their contention that DeCSS was designed to create a
Linux platform DVD player, id. at 319. The Court also held that the Defendants
cannot avail themselves of any of the DMCA's exceptions, id. at 319 22, and that
the alleged importance of DeCSS to certain fair uses of encrypted copyrighted
material was immaterial to their statutory liability, id. at 322 24. The Court
went on to hold that when the Defendants "proclaimed on their own site that
DeCSS could be had by clicking on the hyperlinks" on their site, they were
trafficking in DeCSS, and therefore liable for their linking as well as their
posting. Id. at 325.
Turning to the
Defendants' numerous constitutional arguments, the Court first held that
computer code like DeCSS is "speech" that is "protected" (in
the sense of "covered") by the First Amendment, id. at 327, but that
because the DMCA is targeting the "functional" aspect of that speech,
id. at 328-29, it is "content neutral," id. at 329,10
and the intermediate scrutiny of United States v. O'Brien, 391 U.S. 367, 377
(1968), applies, Universal I, 111 F. Supp. 2d at 329-30. The Court concluded
that the DMCA survives this scrutiny, id. at 330-33, and also rejected prior
restraint, overbreadth, and vagueness challenges, id. at 333- 39.
The Court upheld the
constitutionality of the DMCA's application to linking on similar grounds:
linking, the Court concluded, is "speech," but the DMCA is content
neutral, targeting only the functional components of that speech. Therefore, its
application to linking is also evaluated under O'Brien, and, thus evaluated,
survives intermediate scrutiny. However, the Court concluded that a blanket
proscription on linking would create a risk of chilling legitimate linking on
the web. The Court therefore crafted a restrictive test for linking liability (discussed
below) that it believed sufficiently mitigated that risk. The Court then found
its test satisfied in this case. Id. at 339 41.
Finally, the Court
concluded that an injunction was highly appropriate in this case. The Court
observed that DeCSS was harming the Plaintiffs, not only because they were now
exposed to the possibility of piracy and therefore were obliged to develop
costly new safeguards for DVDs, but also because, even if there was only
indirect evidence that DeCSS availability actually facilitated DVD piracy,11
the threat of piracy was very real, particularly as Internet transmission speeds
continue to increase. Id. at 314 15, 342. Acknowledging that DeCSS was (and
still is) widely available on the Internet, the Court expressed confidence in
the likelihood . . .
that this decision will serve notice on others that "the strong right arm
of equity" may be brought to bear against them absent a change in their
conduct and thus contribute to a climate of appropriate respect for
intellectual property rights in an age in which the excitement of ready access
to untold quantities of information has blurred in some minds the fact that
taking what is not yours and not freely offered to you is stealing.
Id. at 345.
The Court's injunction
barred the Defendants from: "posting on any Internet web site" DeCSS;
"in any other way . . . offering to the public, providing, or otherwise
trafficking in DeCSS"; violating the anti trafficking provisions of the
DMCA in any other manner, and finally "knowingly linking any Internet web
site operated by them to any other web site containing DeCSS, or knowingly
maintaining any such link, for the purpose of disseminat ing DeCSS."
Universal II, 111 F. Supp. 2d at 346 47.
The Appellants have
appealed from the permanent injunc- tion. The United States has intervened in
support of the constitu- tionality of the DMCA. We have also had the benefit of
a number of amicus curiae briefs, supporting and opposing the District Court's
judgment. After oral argument, we invited the parties to submit responses to a
series of specific questions, and we have received helpful responses.
I. Narrow Construction
to Avoid Constitutional Doubt
The Appellants first
argue that, because their constitu tional arguments are at least substantial, we
should interpret the statute narrowly so as to avoid constitutional problems.
They identify three different instances of alleged ambiguity in the statute that
they claim provide an opportunity for such a narrow interpretation.
First, they contend
that subsection 1201(c)(1), which provides that "[n]othing in this section
shall affect rights, remedies, limitations or defenses to copyright infringement,
including fair use, under this title," can be read to allow the
circumvention of encryption technology protecting copyrighted material when the
material will be put to "fair uses" exempt from copyright liability.13
We disagree that subsection 1201(c)(1) permits such a reading. Instead, it
clearly and simply clarifies that the DMCA targets the circumvention of digital
walls guarding copyrighted material (and trafficking in circumvention tools),
but does not concern itself with the use of those materials after circumvention
has occurred. Subsection 1201(c)(1) ensures that the DMCA is not read to
prohibit the "fair use" of information just because that information
was obtained in a manner made illegal by the DMCA. The Appellants' much more
expansive interpretation of subsection 1201(c)(1) is not only outside the range
of plausible readings of the provision, but is also clearly refuted by the
statute's legislative history.14 See Commodity
Futures Trading Commission v. Schor, 478 U.S. 833, 841 (1986) (constitutional
doubt canon "does not give a court the prerogative to ignore the legisla
Second, the Appellants
urge a narrow construction of the DMCA because of subsection 1201(c)(4), which
provides that "[n]othing in this section shall enlarge or diminish any
rights of free speech or the press for activities using consumer electronics,
telecommunications, or computing products." This language is clearly
precatory: Congress could not "diminish" constitutional rights of free
speech even if it wished to, and the fact that Congress also expressed a
reluctance to "enlarge" those rights cuts against the Appellants'
effort to infer a narrowing construction of the Act from this provision.
Third, the Appellants
argue that an individual who buys a DVD has the "authority of the copyright
owner" to view the DVD, and therefore is exempted from the DMCA pursuant to
subsection 1201(a)(3)(A) when the buyer circumvents an encryption technology in
order to view the DVD on a competing platform (such as Linux). The basic flaw in
this argument is that it misreads subsection 1201(a)(3)(A). That provision
exempts from liability those who would "decrypt" an encrypted DVD with
the authority of a copyright owner, not those who would "view" a DVD
with the authority of a copyright owner.15 In any
event, the Defendants offered no evidence that the Plaintiffs have either
explicitly or implicitly authorized DVD buyers to circumvent encryption
technology to support use on multiple platforms.16
We conclude that the
anti-trafficking and anti-circumven tion provisions of the DMCA are not
susceptible to the narrow interpretations urged by the Appellants. We therefore
proceed to consider the Appellants' constitutional claims.
Challenge Based on the Copyright Clause
In a footnote to their
brief, the Appellants appear to contend that the DMCA, as construed by the
District Court, exceeds the constitutional authority of Congress to grant
authors copyrights for a "limited time," U.S. Const. art. I, 8, cl. 8,
because it "empower[s] copyright owners to effectively secure perpetual
protection by mixing public domain works with copyrighted materials, then
locking both up with technological protection measures." Brief for
Appellants at 42 n.30. This argument is elaborated in the amici curiae brief
filed by Prof. Julie E. Cohen on behalf of herself and 45 other intellectual
property law professors. See also David Nimmer, A Riff on Fair Use in the
Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 712 (2000). For two
reasons, the argument provides no basis for disturbing the judgment of the
First, we have
repeatedly ruled that arguments presented to us only in a footnote are not
entitled to appellate consideration. Concourse Rehabilitation & Nursing
Center Inc. v. DeBuono, 179 F.3d 38, 47 (2d Cir. 1999); United States v. Mapp,
170 F.3d 328, 333 n.8 (2d Cir. 1999); United States v. Restrepo, 986 F.2d 1462,
1463 (2d Cir. 1993). Although an amicus brief can be helpful in elaborating
issues properly presented by the parties, it is normally not a method for
injecting new issues into an appeal, at least in cases where the parties are
competently represented by counsel. See, e.g., Concourse Center, 179 F.3d at 47.
Second, to whatever
extent the argument might have merit at some future time in a case with a
properly developed record, the argument is entirely premature and speculative at
this time on this record. There is not even a claim, much less evidence, that
any Plaintiff has sought to prevent copying of public domain works, or that the
injunction prevents the Defendants from copying such works. As Judge Kaplan
noted, the possibility that encryption would preclude access to public domain
works "does not yet appear to be a problem, although it may emerge as one
in the future." Universal I, 111 F. Supp. 2d at 338 n.245.
Challenges Based on the First Amendment
Last year, in one of
our Court's first forays into First Amendment law in the digital age, we took an
"evolutionary" approach to the task of tailoring familiar
constitutional rules to novel technological circumstances, favoring "narrow"
holdings that would permit the law to mature on a "case-by-case" basis.
See Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 584 n.11 (2d Cir.
2000). In that spirit, we proceed, with appropriate caution, to consider the
Appellants' First Amendment challenges by analyzing a series of preliminary
issues the resolution of which provides a basis for adjudicating the specific
objections to the DMCA and its application to DeCSS. These issues, which we
consider only to the extent necessary to resolve the pending appeal, are whether
computer code is speech, whether computer programs are speech, the scope of
First Amendment protection for computer code, and the scope of First Amendment
protection for decryption code. Based on our analysis of these issues, we then
consider the Appellants' challenge to the injunction's provisions concerning
posting and linking.
1. Code as Speech
Communication does not
lose constitutional protection as "speech" simply because it is
expressed in the language of computer code. Mathematical formulae and musical
scores are written in "code," i.e., symbolic notations not
comprehensible to the uniniti ated, and yet both are covered by the First
Amendment. If someone chose to write a novel entirely in computer object code by
using strings of 1's and 0's for each letter of each word, the resulting work
would be no different for constitutional purposes than if it had been written in
English. The "object code" version would be incomprehensible to
readers outside the programming community (and tedious to read even for most
within the community), but it would be no more incomprehensible than a work
written in Sanskrit for those unversed in that language. The undisputed evidence
reveals that even pure object code can be, and often is, read and understood by
experienced programmers. And source code (in any of its various levels of
complexity) can be read by many more. See Universal I, 111 F. Supp. 2d at 326.
Ultimately, however, the ease with which a work is comprehended is irrelevant to
the constitutional inquiry. If computer code is distinguishable from
conventional speech for First Amendment purposes, it is not because it is
written in an obscure language. See Junger v. Daley, 209 F.3d 481, 484 (6th Cir.
2. Computer Programs
Of course, computer
code is not likely to be the language in which a work of literature is written.
Instead, it is primarily the language for programs executable by a computer.
These programs are essentially instructions to a computer. In general, programs
may give instructions either to perform a task or series of tasks when initiated
by a single (or double) click of a mouse or, once a program is operational
("launched"), to manipulate data that the user enters into the
computer.17 Whether computer code that gives a
computer instructions is "speech" within the meaning of the First
Amendment requires consideration of the scope of the Constitution's protection
The First Amendment
provides that "Congress shall make no law . . . abridging the freedom of
speech . . . ." U.S. Const. amend. I. "Speech" is an elusive term,
and judges and scholars have debated its bounds for two centuries. Some would
confine First Amendment protection to political speech. E.g., Robert Bork,
Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).
Others would extend it further to artistic expression. E.g., Marci A. Hamilton,
Art Speech, 49 Vand. L. Rev. 73 (1996).
Whatever might be the
merits of these and other approaches, the law has not been so limited. Even dry
information, devoid of advocacy, political relevance, or artistic expression,
has been accorded First Amendment protection. See Miller v. California, 413 U.S.
15, 34 (1973) ("The First Amendment protects works which, taken as a whole,
have serious literary, artistic, political, or scientific value . . . ." (emphasis
added)); Roth v. United States, 354 U.S. 476, 484 (1957) (First Amendment
embraces "[a]ll ideas having even the slightest redeeming social importance,"
including the "'advancement of truth, science, morality, and arts in gen-
eral.'" (quoting 1 Journals of the Continental Congress 108 (1774))); Board
of Trustees of Stanford University v. Sullivan, 773 F. Supp. 472, 474 (D.D.C.
1991) ("It is . . . settled . . . that the First Amendment protects
scientific expression and debate just as it protects political and artistic
expression."); see also Kent Greenawalt, Speech, Crime and the Uses of
Language 85 (1989) ("[A]ssertions of fact generally fall within a principle
of freedom of speech . . . ."); cf. Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976) ("prescription
drug price information" is "speech" because a consumer's interest
in "the free flow of commercial information" may be "keener by
far" than "his interest in the day's most urgent political debate").
Thus, for example,
courts have subjected to First Amendment scrutiny restrictions on the
dissemination of technical scientific information, United States v. Progressive,
Inc., 467 F. Supp. 990 (W.D. Wis. 1979), and scientific research, Stanford
University, 773 F. Supp. at 473, and attempts to regulate the publication of
instructions,18 see, e.g., United States v.
Raymond, 228 F.3d 804, 815 (7th Cir. 2000) (First Amendment does not protect
instructions for violating the tax laws); United States v. Dahl- strom, 713 F.2d
1423, 1428 (9th Cir. 1983) (same); Herceg v. Hustler Magazine, Inc., 814 F.2d
1017, 1020-25 (5th Cir. 1987) (First Amendment protects instructions for
engaging in a dangerous sex act); United States v. Featherston, 461 F.2d 1119,
1122-23 (5th Cir. 1972) (First Amendment does not protect instructions for
building an explosive device); see also Bernstein v. United States Department of
State, 922 F. Supp. 1426, 1435 (N.D. Cal. 1996) ("Instructions, do-
it-yourself manuals, [and] recipes" are all "speech").19
Computer programs are
not exempted from the category of First Amendment speech simply because their
instructions require use of a computer. A recipe is no less "speech"
because it calls for the use of an oven, and a musical score is no less "speech"
because it specifies performance on an electric guitar. Arguably distin guishing
computer programs from conventional language instructions is the fact that
programs are executable on a computer. But the fact that a program has the
capacity to direct the functioning of a computer does not mean that it lacks the
additional capacity to convey information, and it is the conveying of
information that renders instructions "speech" for purposes of the
First Amendment.20 The information conveyed by most
"instructions" is how to perform a task.
Instructions such as
computer code, which are intended to be executable by a computer, will often
convey information capable of comprehension and assessment by a human being.21
A programmer reading a program learns information about instructing a computer,
and might use this information to improve personal programming skills and
perhaps the craft of programming. Moreover, programmers communicating ideas to
one another almost inevitably communicate in code, much as musicians use notes.22
Limiting First Amendment protection of programmers to descriptions of computer
code (but not the code itself) would impede discourse among computer scholars,
just as limiting protection for musicians to descriptions of musical scores (but
not sequences of notes) would impede their exchange of ideas and expression.
Instructions that communicate information comprehensible to a human qualify as
speech whether the instructions are designed for execution by a computer or a
human (or both).23
Vartuli is not to the
contrary. The defendants in Vartuli marketed a software program called "Recurrence,"
which would tell computer users when to buy or sell currency futures contracts
if their computers were fed currency market rates. The Commodity Futures Trading
Commission charged the defendants with violating federal law for, among other
things, failing to register as commodity trading advisors for their distribution
of the Recurrence software. The defendants maintained that Recurrence's cues to
users to buy or sell were protected speech, and that the registration
requirement as applied to Recurrence was a constitutionally suspect prior
restraint. We rejected the defendants' constitutional claim, holding that
Recurrence "in the form it was sold and marketed by the defendants"
did not generate speech protected by the First Amend ment. Vartuli, 228 F.3d at
Essential to our ruling
in Vartuli was the manner in which the defendants marketed the software and
intended that it be used: the defendants told users of the software to follow
the software's cues "with no second-guessing," id., and intended that
users follow Recurrence's commands "mechanically" and "without
the intercession of the mind or the will of the recipient," id. We held
that the values served by the First Amendment were not advanced by these
instructions, even though the instructions were expressed in words. Id. We
acknowledged that some users would, despite the defendants' marketing, refuse to
follow Recurrence's cues mechanically but instead would use the commands as a
source of information and advice, and that, as to these users, Recurrence's cues
might very "well have been 'speech.'" Id. at 111-12. Nevertheless, we
concluded that the Government could require registration for Recurrence's
intended use because such use was devoid of any constitutionally protected
speech. Id. at 112.
Vartuli considered two
ways in which a programmer might be said to communicate through code: to the
user of the program (not necessarily protected) and to the computer (never
protected).24 However, this does not mean that
Vartuli denied First Amendment protection to all computer programs. Since
Vartuli limited its constitutional scrutiny to the code "as marketed,"
i.e., as an automatic trading system, it did not have occasion to consider a
third manner in which a programmer might communicate through code: to another
For all of these
reasons, we join the other courts that have concluded that computer code, and
computer programs constructed from code can merit First Amendment protection,
see Junger, 209 F.3d at 484;25 Bernstein, 922 F.
Supp. at 1434-36; see also Bernstein, 176 F.3d at 1140-41; Karn v. United States
Depart- ment of State, 925 F. Supp. 1, 9-10 (D.D.C. 1996) (assuming, without
deciding, that source code with English comments interspersed throughout is
"speech"), although the scope of such protection remains to be
3. The Scope of First
Amendment Protection for Computer Code
Having concluded that
computer code conveying information is "speech" within the meaning of
the First Amendment, we next consider, to a limited extent, the scope of the
protection that code enjoys. As the District Court recognized, Universal I, 111
F. Supp. 2d at 327, the scope of protection for speech generally depends on
whether the restriction is imposed because of the content of the speech.
Content-based restrictions are permissible only if they serve compelling state
interests and do so by the least restrictive means available. See Sable
Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A
content-neutral restriction is permissible if it serves a substantial
governmental interest, the interest is unrelated to the suppression of free
expression, and the regulation is narrowly tailored, which "in this context
requires . . . that the means chosen do not 'burden substantially more speech
than is necessary to further the government's legitimate inter ests.'"
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994) (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 799 (1989)).26
regulation of expressive activity is 'content neutral' if it is justified
without reference to the content of regulated speech." Hill v. Colorado,
530 U.S. 703, 720 (2000). "The government's purpose is the controlling
consideration. A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others." Ward, 491 U.S. at 791. The Supreme
Court's approach to determining content-neutrality appears to be applicable
whether what is regulated is expression, see id. at 791-93 (regulation of volume
of music), conduct, see O'Brien, 391 U.S. at 377, or any "activity"
that can be said to combine speech and non-speech elements, see Spence v.
Washington, 418 U.S. 405, 410-11 (1974) (applying O'Brien to "activity"
of displaying American flag hung upside down and decorated with a peace symbol).
To determine whether
regulation of computer code is content-neutral, the initial inquiry must be
whether the regulated activity is "sufficiently imbued with elements of
communication to fall within the scope of the First . . . Amendment." Id.
at 409; see also Name.Space, 202 F.3d at 585. Computer code, as we have noted,
often conveys information comprehensible to human beings, even as it also
directs a computer to perform various functions. Once a speech component is
identified, the inquiry then proceeds to whether the regulation is "justified
without reference to the content of regulated speech." Hill, 530 U.S. at
vigorously reject the idea that computer code can be regulated according to any
different standard than that applicable to pure speech, i.e., speech that lacks
a nonspeech component. Although recognizing that code is a series of instruc
tions to a computer, they argue that code is no different, for First Amendment
purposes, than blueprints that instruct an engineer or recipes that instruct a
cook. See Supplemental Brief for Appellants at 2, 3.27
We disagree. Unlike a blueprint or a recipe, which cannot yield any functional
result without human comprehension of its content, human decision-making, and
human action, computer code can instantly cause a computer to accomplish tasks
and instantly render the results of those tasks available throughout the world
via the Internet. The only human action required to achieve these results can be
as limited and instantaneous as a single click of a mouse. These realities of
what code is and what its normal functions are require a First Amendment
analysis that treats code as combining nonspeech and speech elements, i.e.,
functional and expressive elements. See Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 386 (1969) ("[D]ifferences in the characteristics of new media
justify differences in the First Amendment standards applied to them." (footnote
We recognize, as did
Judge Kaplan, that the functional capability of computer code cannot yield a
result until a human being decides to insert the disk containing the code into a
computer and causes it to perform its function (or programs a computer to cause
the code to perform its function). Nevertheless, this momentary intercession of
human action does not diminish the nonspeech component of code, nor render code
entirely speech, like a blueprint or a recipe. Judge Kaplan, in a passage that
merits extensive quotation, cogently explained why this is especially so with
respect to decryption code:
[T]he focus on
functionality in order to determine the level of scrutiny is not an inevitable
consequence of the speech-conduct distinction. Conduct has immediate effects
on the environment. Computer code, on the other hand, no matter how functional,
causes a com puter to perform the intended operations only if someone uses the
code to do so. Hence, one commentator, in a thoughtful article, has maintained
that functionality is really "a proxy for effects or harm" and that
its adoption as a determinant of the level of scrutiny slides over questions
of causation that intervene between the dissemination of a computer program
and any harm caused by its use.
of functionality as a proxy for the consequences of use is accurate. But the
assumption that the chain of causation is too attenuated to justify the use of
func tionality to determine the level of scrutiny, at least in this context,
depends upon techno logical means of controlling access to digital files and
systems, whether they are military computers, bank records, academic records,
copyrighted works or something else entirely. There are far too many who,
given any opportu nity, will bypass security measures, some for the sheer joy
of doing it, some for innocuous reasons, and others for more malevolent pur
poses. Given the virtually instantaneous and worldwide dissemination widely
available via the Internet, the only rational assumption is that once a
computer program capable of bypassing such an access control system is
disseminated, it will be used. And that is not all.
There was a time when
copyright infringe ment could be dealt with quite adequately by focusing on
the infringing act. If someone wished to make and sell high quality but unau
thorized copies of a copyrighted book, for example, the infringer needed a
printing press. The copyright holder, once aware of the appear ance of
infringing copies, usually was able to trace the copies up the chain of
distribution, find and prosecute the infringer, and shut off the infringement
at the source.
In principle, the
digital world is very different. Once a decryption program like DeCSS is
written, it quickly can be sent all over the world. Every recipient is capable
not only of decrypting and perfectly copying plaintiffs' copyrighted DVDs, but
also of retransmitting perfect copies of DeCSS and thus enabling every
recipient to do the same. They likewise are capable of transmitting perfect
copies of the decrypted DVD. The process potentially is exponential rather
. . .
drastically alter consideration of the causal link between dissem ination of
computer programs such as this and their illicit use. Causation in the law
ulti mately involves practical policy judgments. Here, dissemination itself
carries very substan tial risk of imminent harm because the mechanism is so
unusual by which dissemination of means of circumventing access controls to
copyrighted works threatens to produce virtually unstoppable infringement of
copyright. In consequence, the causal link between the dissemination of circum
vention computer programs and their improper use is more than sufficiently
close to warrant selection of a level of constitutional scrutiny based on the
Universal I, 111 F.
Supp. 2d at 331-32 (footnotes omitted). The functionality of computer code
properly affects the scope of its First Amendment protection.
4. The Scope of First
Amendment Protection for Decryption Code
In considering the
scope of First Amendment protection for a decryption program like DeCSS, we must
recognize that the essential purpose of encryption code is to prevent
unauthorized access. Owners of all property rights are entitled to prohibit
access to their property by unauthorized persons. Homeowners can install locks
on the doors of their houses. Custodians of valuables can place them in safes.
Stores can attach to products security devices that will activate alarms if the
products are taken away without purchase. These and similar security devices can
be circumvented. Burglars can use skeleton keys to open door locks. Thieves can
obtain the combinations to safes. Product security devices can be neutralized.
Our case concerns a
security device, CSS computer code, that prevents access by unauthorized persons
to DVD movies. The CSS code is embedded in the DVD movie. Access to the movie
cannot be obtained unless a person has a device, a licensed DVD player, equipped
with computer code capable of decrypting the CSS encryption code. In its basic
function, CSS is like a lock on a homeowner's door, a combination of a safe, or
a security device attached to a store's products.
DeCSS is computer code
that can decrypt CSS. In its basic function, it is like a skeleton key that can
open a locked door, a combination that can open a safe, or a device that can
neutralize the security device attached to a store's products.28
DeCSS enables anyone to gain access to a DVD movie without using a DVD player.
The initial use of
DeCSS to gain access to a DVD movie creates no loss to movie producers because
the initial user must purchase the DVD. However, once the DVD is purchased,
DeCSS enables the initial user to copy the movie in digital form and transmit it
instantly in virtually limitless quantity, thereby depriving the movie producer
of sales. The advent of the Internet creates the potential for instantaneous
worldwide distribution of the copied material.
At first glance, one
might think that Congress has as much authority to regulate the distribution of
computer code to decrypt DVD movies as it has to regulate distribution of
skeleton keys, combinations to safes, or devices to neutralize store product
security devices. However, despite the evident legitimacy of protection against
unauthorized access to DVD movies, just like any other property, regulation of
decryption code like DeCSS is challenged in this case because DeCSS differs from
a skeleton key in one important respect: it not only is capable of performing
the function of unlocking the encrypted DVD movie, it also is a form of
communication, albeit written in a language not understood by the general public.
As a communication, the DeCSS code has a claim to being "speech," and
as "speech," it has a claim to being protected by the First Amendment.
But just as the realities of what any computer code can accomplish must inform
the scope of its constitu tional protection, so the capacity of a decryption
program like DeCSS to accomplish unauthorized--indeed, unlawful--access to
materials in which the Plaintiffs have intellectual property rights must inform
and limit the scope of its First Amendment protection. Cf. Red Lion, 395 U.S. at
386 ("[D]ifferences in the characteristics of new media justify differences
in the First Amendment standards applied to them.").
With all of the
foregoing considerations in mind, we next consider the Appellants' First
Amendment challenge to the DMCA as applied in the specific prohibitions that
have been imposed by the District Court's injunction.
B. First Amendment
The District Court's
injunction applies the DMCA to the Defendants by imposing two types of
prohibition, both grounded on the anti-trafficking provisions of the DMCA. The
first prohibits posting DeCSS or any other technology for circumventing CSS on
any Internet web site. Universal II, 111 F. Supp. 2d at 346-47, 1(a), (b). The
second prohibits knowingly linking any Internet web site to any other web site
containing DeCSS. Id. at 347, 1(c). The validity of the posting and linking
prohibitions must be considered separately.
The initial issue is
whether the posting prohibition is content-neutral, since, as we have explained,
this classification determines the applicable constitutional standard. The
Appellants contend that the anti-trafficking provisions of the DMCA and their
application by means of the posting prohibition of the injunction are
content-based. They argue that the provisions "specifically target . . .
scientific expression based on the particular topic addressed by that
expression--namely, techniques for circumventing CSS." Supplemental Brief
for Appellants at 1. We disagree. The Appellants' argument fails to recognize
that the target of the posting provisions of the injunction--DeCSS--has both a
nonspeech and a speech component, and that the DMCA, as applied to the
Appellants, and the posting prohibition of the injunction target only the
nonspeech component. Neither the DMCA nor the posting prohibition is concerned
with whatever capacity DeCSS might have for conveying information to a human
being, and that capacity, as previously explained, is what arguably creates a
speech component of the decryption code. The DMCA and the posting prohibition
are applied to DeCSS solely because of its capacity to instruct a computer to
decrypt CSS. That functional capability is not speech within the meaning of the
First Amendment. The Government seeks to "justif[y]," Hill, 530 U.S.
at 720, both the application of the DMCA and the posting prohibition to the
Appellants solely on the basis of the functional capability of DeCSS to instruct
a computer to decrypt CSS, i.e., "without reference to the content of the
regulated speech," id. This type of regulation is therefore content-neutral,
just as would be a restriction on trafficking in skeleton keys identified
because of their capacity to unlock jail cells, even though some of the keys
happened to bear a slogan or other legend that qualified as a speech component.
As a content-neutral
regulation with an incidental effect on a speech component, the regulation must
serve a substantial governmental interest, the interest must be unrelated to the
suppression of free expression, and the incidental restriction on speech must
not burden substantially more speech than is necessary to further that interest.
Turner Broadcasting, 512 U.S. at 662. The Government's interest in preventing
unauthorized access to encrypted copyrighted material is unquestionably
substantial, and the regulation of DeCSS by the posting prohibition plainly
serves that interest. Moreover, that interest is unrelated to the suppression of
free expression. The injunction regulates the posting of DeCSS, regardless of
whether DeCSS code contains any information comprehensible by human beings that
would qualify as speech. Whether the incidental regulation on speech burdens
substantially more speech than is necessary to further the interest in
preventing unauthorized access to copyrighted materials requires some
Posting DeCSS on the
Appellants' web site makes it instantly available at the click of a mouse to any
person in the world with access to the Internet, and such person can then
instantly transmit DeCSS to anyone else with Internet access. Although the
prohibition on posting prevents the Appellants from conveying to others the
speech component of DeCSS, the Appellants have not suggested, much less shown,
any technique for barring them from making this instantaneous worldwide
distribution of a decryp tion code that makes a lesser restriction on the code's
speech component.29 It is true that the Government
has alternative means of prohibiting unauthorized access to copyrighted
materials. For example, it can create criminal and civil liability for those who
gain unauthorized access, and thus it can be argued that the restriction on
posting DeCSS is not absolutely necessary to preventing unauthorized access to
copyrighted materials. But a content-neutral regulation need not employ the
least restrictive means of accomplishing the governmental objective. Id. It need
only avoid burdening "substantially more speech than is necessary to
further the government's legitimate interests." Id. (internal quotation
marks and citation omitted). The prohibition on the Defendants' posting of DeCSS
satisfies that standard.30
In considering linking,
we need to clarify the sense in which the injunction prohibits such activity.
Although the injunction defines several terms, it does not define
"linking." Nevertheless, it is evident from the District Court's
opinion that it is concerned with "hyperlinks," Universal I, 111 F.
Supp. 2d at 307; see id. at 339.31 A hyperlink is a
cross-reference (in a distinctive font or color) appearing on one web page that,
when activated by the point-and-click of a mouse, brings onto the computer
screen another web page. The hyperlink can appear on a screen (window) as text,
such as the Internet address ("URL") of the web page being called up
or a word or phrase that identifies the web page to be called up, for example,
"DeCSS web site." Or the hyperlink can appear as an image, for example,
an icon depicting a person sitting at a computer watching a DVD movie and text
stating "click here to access DeCSS and see DVD movies for free!" The
code for the web page containing the hyperlink contains a computer instruction
that associates the link with the URL of the web page to be accessed, such that
clicking on the hyperlink instructs the computer to enter the URL of the desired
web page and thereby access that page. With a hyperlink on a web page, the
linked web site is just one click away.32
In applying the DMCA to
linking (via hyperlinks), Judge Kaplan recognized, as he had with DeCSS code,
that a hyperlink has both a speech and a nonspeech component. It conveys
information, the Internet address of the linked web page, and has the functional
capacity to bring the content of the linked web page to the user's computer
screen (or, as Judge Kaplan put it, to "take one almost instantaneously to
the desired destination." Id.). As he had ruled with respect to DeCSS code,
he ruled that application of the DMCA to the Defendants' linking to web sites
containing DeCSS is content- neutral because it is justified without regard to
the speech component of the hyperlink. Id. The linking prohibition applies
whether or not the hyperlink contains any information, comprehensi ble to a
human being, as to the Internet address of the web page being accessed. The
linking prohibition is justified solely by the functional capability of the
O'Brien/Ward/Turner Broadcasting requirements for content-neutral regulation,
Judge Kaplan then ruled that the DMCA, as applied to the Defendants' linking,
served substantial governmental interests and was unrelated to the suppression
of free expression. Id. We agree. He then carefully considered the "closer
call," id., as to whether a linking prohibition would satisfy the narrow
tailoring requirement. In an especially carefully considered portion of his
opinion, he observed that strict liability for linking to web sites containing
DeCSS would risk two impairments of free expression. Web site operators would be
inhibited from displaying links to various web pages for fear that a linked page
might contain DeCSS, and a prohibition on linking to a web site containing DeCSS
would curtail access to whatever other information was contained at the accessed
site. Id. at 340.
To avoid applying the
DMCA in a manner that would "burden substantially more speech than is
necessary to further the govern ment's legitimate interests," Turner
Broadcasting, 512 U.S. at 662 (internal quotation marks and citation omitted),
Judge Kaplan adapted the standards of New York Times Co. v. Sullivan, 376 U.S.
254, 283 (1964), to fashion a limited prohibition against linking to web sites
containing DeCSS. He required clear and convincing evidence
responsible for the link (a) know at the relevant time that the offending
material is on the linked-to site, (b) know that it is circumvention
technology that may not lawfully be offered, and (c) create or maintain the
link for the purpose of disseminating that technology.
Universal I, 111 F.
Supp. 2d at 341. He then found that the evidence satisfied his three-part test
by his required standard of proof. Id.
In response to our
post-argument request for the parties' views on various issues, including
specifically Judge Kaplan's test for a linking prohibition, the Appellants
replied that his test was deficient for not requiring proof of intent to cause,
or aid or abet, harm, and that the only valid test for a linking prohibition
would be one that could validly apply to the publication in a print medium of an
address for obtaining prohibited material. Supplemental Brief for Appellants at
14. The Appellees and the Government accepted Judge Kaplan's criteria for
purposes of asserting the validity of the injunction as applied to the
Appellants, with the Government expressing reservations as to the standard of
clear and convincing evidence. Supplemental Brief for Appellees at 22-23;
Supplemental Brief for Government at 19-21.
Mindful of the cautious
approach to First Amendment claims involving computer technology expressed in
Name.Space, 202 F.3d at 584 n.11, we see no need on this appeal to determine
whether a test as rigorous as Judge Kaplan's is required to respond to First
Amendment objections to the linking provision of the injunction that he issued.
It suffices to reject the Appellants' contention that an intent to cause harm is
required and that linking can be enjoined only under circumstances applicable to
a print medium. As they have throughout their arguments, the Appellants ignore
the reality of the functional capacity of decryption computer code and
hyperlinks to facilitate instantaneous unauthorized access to copyrighted
materials by anyone anywhere in the world. Under the circumstances amply shown
by the record, the injunction's linking prohibition validly regulates the
Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized
access to copyrighted movies on DVDs.33
At oral argument, we
asked the Government whether its undoubted power to punish the distribution of
obscene materials would permit an injunction prohibiting a newspaper from
printing addresses of bookstore locations carrying such materials. In a properly
cautious response, the Government stated that the answer would depend on the
circumstances of the publication. The Appel lants' supplemental papers
enthusiastically embraced the arguable analogy between printing bookstore
addresses and displaying on a web page links to web sites at which DeCSS may be
accessed. Supplemen tal Brief for Appellants at 14. They confidently asserted
that publication of bookstore locations carrying obscene material cannot be
enjoined consistent with the First Amendment, and that a prohibition against
linking to web sites containing DeCSS is similarly invalid. Id.
Like many analogies
posited to illuminate legal issues, the bookstore analogy is helpful primarily
in identifying character istics that distinguish it from the context of the
pending dispute. If a bookstore proprietor is knowingly selling obscene
materials, the evil of distributing such materials can be prevented by
injunctive relief against the unlawful distribution (and similar distribution by
others can be deterred by punishment of the distributor). And if others publish
the location of the bookstore, preventive relief against a distributor can be
effective before any significant distribution of the prohibited materials has
occurred. The digital world, however, creates a very different problem. If
obscene materials are posted on one web site and other sites post hyperlinks to
the first site, the materials are available for instantaneous worldwide
distribution before any preventive measures can be effectively taken.
This reality obliges
courts considering First Amendment claims in the context of the pending case to
choose between two unattractive alternatives: either tolerate some impairment of
communication in order to permit Congress to prohibit decryption that may
lawfully be prevented, or tolerate some decryption in order to avoid some
impairment of communication. Although the parties dispute the extent of
impairment of communication if the injunction is upheld and the extent of
decryption if it is vacated, and differ on the availability and effectiveness of
techniques for minimizing both consequences, the fundamental choice between
impairing some communication and tolerating decryption cannot be entirely
In facing this choice,
we are mindful that it is not for us to resolve the issues of public policy
implicated by the choice we have identified. Those issues are for Congress. Our
task is to determine whether the legislative solution adopted by Congress, as
applied to the Appellants by the District Court's injunction, is consistent with
the limitations of the First Amendment, and we are satisfied that it is.
Challenge Based on Claimed Restriction of Fair Use
Asserting that fair use
"is rooted in and required by both the Copyright Clause and the First
Amendment," Brief for Appellants at 42, the Appellants contend that the
DMCA, as applied by the District Court, unconstitutionally "eliminates fair
use" of copyrighted materials, id. at 41 (emphasis added). We reject this
Preliminarily, we note
that the Supreme Court has never held that fair use is constitutionally required,
although some isolated statements in its opinions might arguably be enlisted for
such a requirement. In Stewart v. Abend, 495 U.S. 207 (1990), cited by the
Appellants, the Court merely noted that fair use "'permits courts to avoid
rigid application of the copyright statute when, on occasion, it would stifle
the very creativity which that law is designed to foster,'" id. (quoting
Iowa State University Research Foundation, Inc. v. American Broadcasting Cos.,
621 F.2d 57, 60 (2d Cir. 1980)); see also Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U.S. 539, 560 (1985) (noting "the First Amendment
protections already embodied in the Copyright Act's distinction between
copyrightable expression and uncopyrightable facts and ideas, and the latitude
for scholarship and comment traditionally afforded by fair use"). In
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the Court observed,
"From the infancy of copyright protection, some opportunity for fair use of
copyrighted materials has been thought necessary to fulfill copyright's very
purpose, '[t]o promote the Progress of Science and useful Arts . . . .'"34
Id. at 575 (citation omitted); see generally William F. Patry, The Fair Use
Privilege in Copyright Law 573-82 (2d ed. 1995) (questioning First Amendment
protection for fair use).
We need not explore the
extent to which fair use might have constitutional protection, grounded on
either the First Amendment or the Copyright Clause, because whatever validity a
constitutional claim might have as to an application of the DMCA that impairs
fair use of copyrighted materials, such matters are far beyond the scope of this
lawsuit for several reasons. In the first place, the Appellants do not claim to
be making fair use of any copyrighted materials, and nothing in the injunction
prohibits them from making such fair use. They are barred from trafficking in a
decryption code that enables unauthorized access to copyrighted materials.
Second, as the District
Court properly noted, to whatever extent the anti-trafficking provisions of the
DMCA might prevent others from copying portions of DVD movies in order to make
fair use of them, "the evidence as to the impact of the anti-trafficking
provision[s] of the DMCA on prospective fair users is scanty and fails
adequately to address the issues." Universal I, 111 F. Supp. 2d at 338
Third, the Appellants
have provided no support for their premise that fair use of DVD movies is
constitutionally required to be made by copying the original work in its
original format.35 Their examples of the fair uses
that they believe others will be prevented from making all involve copying in a
digital format those portions of a DVD movie amenable to fair use, a copying
that would enable the fair user to manipulate the digitally copied portions. One
example is that of a school child who wishes to copy images from a DVD movie to
insert into the student's documentary film. We know of no authority for the
proposition that fair use, as protected by the Copyright Act, much less the
Constitution, guarantees copying by the optimum method or in the identical
format of the original. Although the Appellants insisted at oral argument that
they should not be relegated to a "horse and buggy" technique in
making fair use of DVD movies,36 the DMCA does not
impose even an arguable limitation on the opportunity to make a variety of
traditional fair uses of DVD movies, such as commenting on their content,
quoting excerpts from their screenplays, and even recording portions of the
video images and sounds on film or tape by pointing a camera, a camcorder, or a
microphone at a monitor as it displays the DVD movie. The fact that the
resulting copy will not be as perfect or as manipulable as a digital copy
obtained by having direct access to the DVD movie in its digital form, provides
no basis for a claim of unconstitutional limitation of fair use. A film critic
making fair use of a movie by quoting selected lines of dialogue has no
constitutionally valid claim that the review (in print or on television) would
be techno logically superior if the reviewer had not been prevented from using a
movie camera in the theater, nor has an art student a valid constitutional claim
to fair use of a painting by photographing it in a museum. Fair use has never
been held to be a guarantee of access to copyrighted material in order to copy
it by the fair user's preferred technique or in the format of the original.
We have considered all
the other arguments of the Appellants and conclude that they provide no basis
for disturbing the District Court's judgment. Accordingly, the judgment is
are similar to compact disks (CDs), but differ, among other things, in that they
hold far more data. For detailed information concerning DVDs and CDs, see
"Fast Guide to CD/DVD" at http://
67,00.html (last updated Aug. 3, 2001).
"2600" has special significance to the hacker community. It is the
hertz frequency ("a unit of frequency of a periodic process equal to one
cycle per second," Webster's Third New International Dictionary 1061
(1993)) of a signal that some hackers formerly used to explore the entire
telephone system from "operator mode," which was triggered by the
transmission of a 2600 hertz tone across a telephone line, Trial Tr. at 786-87,
or to place telephone calls without incurring long-distance toll charges, United
States v. Brady, 820 F. Supp. 1346, 1355 & n.18 (D. Utah 1993). One such
user reportedly discovered that the sound of a toy whistle from a box of Cap'n
Crunch cereal matched the telephone company's 2600 hertz tone perfectly. Id. at
the end of 1997, most if not all DVDs that were released were encrypted with CSS.
Trial Tr. at 409; Universal I, 111 F. Supp. 2d at 310. Moreover, DVD players
were projected to be in ten percent of United States homes by the end of 2000.
Trial Tr. at 442; Universal I, 111 F. Supp. 2d at 310. In fact, as of 2000,
about thirty-five percent of one studio's worldwide revenue from movie
distribution was attributable to DVD sales and rentals. Trial Tr. at 403;
Universal I, 111 F. Supp. 2d at 310 n.69.
operating system works with the computer to perform the application's
instructions. Generally, an executable application can be played only on the
operating system for which it is designed, although interoperability has been
improving. At the time of the trial, DeCSS could be run only on the Microsoft
Windows operating system. Trial Tr. at 245 (Testimony of Robert W. Schuman).
item of some controversy, both in this litigation and elsewhere, is the extent
to which CSS-encrypted DVDS can be copied even without DeCSS. The record leaves
largely unclear how CSS protects against the copying of a DVD, as contrasted
with the <U>playing of a DVD on an unlicensed player. The Defendants'
experts insisted that there is nothing about the way CSS operates that revents
the copying of a DVD. Declaration of Frank Stevenson ¶ 23 ("Bit-for-bit
copying, which precisely duplicates the content of ne DVD to another, results in
a fully-playable product."); Trial Tr. at 751 (Testimony of Professor
Edward Felten) (CSS "could [not] have prevented the encrypted content from
being copied to somewhere else"); Deposition of Barbara Simons at 48-49,
77. Some of the Plaintiffs, experts countered simply that "copying to a
hard drive is something that compliant DVD players are not allowed to do,"
without explaining why. Trial Tr. at 37 (Testimony of Dr. Michael I. Shamos);
see also Deposition of John J. Hoy at 347- 8; Deposition of Fritz Attaway at 83.
Another expert indicated that while a DVD movie can be copied to a computer's
hard drive in encrypted form, the movie cannot be played without a DVD actually
present in the DVD drive. Deposition of Robert W. Schumann at 153; Second
Supplemental Declaration of Robert W. Schumann ¶ 15. This expert did not
identify the mechanism that prevents someone from copying encrypted DVDs to a
hard drive in the absence of a DVD in the disk drive.
However, none of this
detracts from these undisputed findings: some feature of either CSS itself, or
another (unidentified) safeguard implemented by DVD manufacturers pursuant to
their obligations under the CSS licensing scheme, makes it difficult to copy a
CSS-encrypted DVD to a hard drive and then compress that DVD to the point where
transmission over the Internet is practical. See Universal I, 111 F. Supp. 2d at
338. Conversely, a DVD movie file without CSS encryption is easily copied,
manipulated, and transferred. See id. at 313. In other words, it might very well
be that copying is not blocked by CSS itself, but by some other protection
implemented by the DVD player manufacturers. Nonetheless, in decrypting CSS, the
DeCSS program (perhaps incidentally) sidesteps whatever it is that blocks
copying of the files.
While there may be
alternative means of extracting a non-encrypted, copyable movie from a DVD --
for example, by copying the movie along with its encryption "bit-by-bit,"
or "ripping" a DVD by siphoning movie file data after CSS has already
been decrypted by a licensed player -- DeCSS is the superior means of acquiring
easily copyable movies, see id. at 342, and in fact, is recommended by a DVD
compression web site as the preferred tool for obtaining a decrypted DVD
suitable for compression and transmission over the Internet, see id. We
acknowledge the complexity and the rapidly changing nature of the technology
involved in this case, but it is clear that the Defendants have presented no
evidence to refute any of these carefully considered findings by the District
District Court determined that even at high speeds, typical of university
networks, transmission times ranged from three minutes to six hours. The Court
noted, however, that "the availability of high speed network connections in
many businesses and institutions, and their growing availability in homes, make
internet and other network traffic in pirated copies a growing threat."
Universal I, 111 F. Supp. 2d at 315.
Defendant 2600 Enterprises, Inc., is the company Corley incorporated to run the
magazine, maintain the web site, and manage related endeavors like merchandising.
lawsuit was filed against Corley, Shawn C. Reimerdes, and Roman Kazan. 2600
Enterprises, Inc., was later added as defendant. At an earlier stage of the
litigation, the action was settled as to Reimerdes and Kazan. See Universal II,
111 F. Supp. 2d at 346.
convenience, all references to the DMCA are to the United State Code sections.
a supplemental order, the Court corrected a typographical error in its opinion
in Universal I by changing the first sentence of the first full paragraph at 111
F. Supp. 2d 28 to read "Restrictions on the nonspeech elements of
expressive conduct fall into the content-neutral category." Universal City
Studios Inc. v. Reimerdes, No. 00 Civ: 0277 (LAK) (S.D.N.Y. Aug. 17, 2001).
example, advertisements for pirated DVDs rose dramatically in number after the
release of DeCSS on the web, and DVD file compression web sites recommend the
use of DeCSS. Universal I, 111 F. Supp. 2d at 342.
[12 Not used.]
Part IV, infra, we consider the Appellants' claim that the DMCA is
unconstitutional because of its effect on opportunities for fair use of
legislative history of the enacted bill makes quite clear that Congress intended
to adopt a "balanced" approach to accommodating both piracy and fair
use concerns, eschewing the quick fix of simply exempting from the statute all
circumventions for fair use. H.R. Rep. No. 105-551, pt. 2, at 25 (1998). It
sought to achieve this goal principally through the use of what it called a
"fail-safe" provision in the statute, authorizing the Librarian of
Congress to exempt certain users from the anti-circumvention provision when it
becomes evident that in practice, the statute is adversely affecting certain
kinds of fair use. See 17 U.S.C. 1201(a)(1)(C); H.R. Rep. No. 105-551, pt. 2, at
36 ("Given the threat of a diminution of otherwise lawful access to works
and information, the Committee on Commerce believes that a 'fail-safe' mechanism
is required. This mechanism would . . . allow the . . . [waiver of the
anti-circumvention provisions], for limited time periods, if necessary to
prevent a diminution in the availability to individual users of a particular
category of copyrighted materials.").
Congress also sought to
implement a balanced approach through statutory provisions that leave limited
areas of breathing space for fair use. A good example is subsection 1201(d),
which allows a library or educational institution to circumvent a digital wall
in order to determine whether it wishes legitimately to obtain the material
behind the wall. See H.R. Rep. No. 105-551, pt. 2, at 41. It would be strange
for Congress to open small, carefully limited windows for circumvention to
permit fair-use in subsection 1201(d) if it then meant to exempt in subsection
1201(c)(1) a circumvention necessary for fair use.
This is actually what subsection 1201(a)(3)(A) means when read in conjunction
with the anti-circumvention provision. When read together with the
anti-trafficking provisions, subsection 1201(a)(3)(A) frees an individual to
traffic in encryption technology designed or marketed to circumvent an
encryption measure if the owner of the material protected by the encryption
measure authorizes that circumvention.
Even if the Defendants had been able to offer such evidence, and even if they
could have demonstrated that DeCSS was "primarily designed . . . for the
purpose of" playing DVDs on multiple platforms (and therefore not for the
purpose of "circumventing a technological measure"), a proposition
questioned by Judge Kaplan, see Universal I, 111 F. Supp. 2d at 311 n.79, the
Defendants would defeat liability only under subsection 1201(a)(2)(A). They
would still be vulnerable to liability under subsection 1201(a)(2)(C), because
they "marketed" DeCSS for the copying of DVDs, not just for the
playing of DVDs on multiple platforms. See, e.g., Tria1 Tr. at 82.0.
example, a program (or part of a program) will give a computer the direction to
"launch" a word-processing program like WordPerfect when the icon for
WordPerfect is clicked; a program like WordPerfect will give the computer
directions to display letters on a screen and manipulate them according to the
computer user's preferences whenever the appropriate keys are struck.
note that instructions are of varied types. See Vartuli, 228 F.3d at 111.
"Orders" from one member of a conspirary to another member, or from a
superior to a subordinate, might resemble instructions but nonetheless warrant
less or even no constitutional protection because their capacity to inform is
meager, and because it is unlikely that the recipient of the order will engage
in the "intercession of . . . mind or . . . will" characteristic of
the sort of communication between two parties protected by the Constitution, see
id. at 111-12 (noting that statements in the form of orders, instructions, or
commands cannot claim "talismanic immunity from constitutional limitations"
but "should be subjected t careful and particularized analysis to ensure
that no speech emitted to First Amendment protection fails to receive it");
Kent Greenawalt, Speech and Crime, Am. B. Found. Res. J. 645, 743-44 (1980).
These cases almost always concern instruction on how to commit illegal acts.
Several courts have conclude that such instructions fall outside the First
Amendment. However, these conclusions never rest on the fact that the speech
took the form of instructions, but rather on the fact that the instructions
counseled the listener how to commit illegal acts. See , e.g. , Ric v. Paladin
Enterprises, Inc. , 128 F.3d 233, 247-49 (4th Cir. 1 97); United States v.
Barnett , 667 F.2d 835, 842 (9th Cir. 1982). None of these opinions even hints
that instructions are a form of speech categorically outside the First Amendment.
course, we do not mean to suggest that the communication of "information"
is a prerequisite of protected "speech." Protected speech may
communicate, among other things, ideas, emotions, or thoughts. We identify
"information" only because this is what computer programs most often
communicate, in addition to giving directions to a computer.
However, in the rare case where a human's mental aculties do not intercede in
executing the instructions, we have withheld protection. See Vartuli, 228 F.3d
Programmers use snippets of code to convey their ideas for new programs;
economists and other creators of computer models publish the code of their
models in order to demonstrate the models' vigor. Brief of Amici Curiae Dr.
Harold Abelson et al. at 17; Brief of Amici Curiae Steven Bellovin et al. at
12-13; see also Bernstein v. United States Department of Justice, 176 F.3d 1132,
1141 (9th Cir.) (concluding that computer source code is speech because it is
"the preferred means" of communication among computer programmers and
cryptographers), reviewed in banc granted and opinion withdrawn, 192 F.3d 1308
(9th Cir. 1999).
Reinforcing the conclusion that software program qualify as "speech"
for First Amendment purposes -- even though they instruct computers -- is the
accelerated blurring of the line between "source code" and
conventional "speech." There already exist programs capable of
translating English descriptions of a program into source code. Trial Tr. at
1101-02 (Testimony of Professor Andrew Appel). These programs are functionally
indistinguishable from the compilers that routinely translate source code into
object code. These new programs (still apparently rudimentary) hold the
potential for turning "prose" instructions on how to write a computer
program into the program itself. Even if there were an argument for exempting
the latter from First Amendment protection, the former are clearly protected for
the reasons set forth in the text. A technology becomes more sophisticated,
instructions to other humans will increasingly be executable by computers as
Vartuli reasoned that the interaction between "programming commands as
triggers and semiconductors as a conduit," even though communication, is
not "speech" within the meaning of the First Amendment and that the
communication between Recurrence and a customer using it as intended was
similarly not "speech." Vartuli , 228 F.2d at 111.
reasoning of Junger has recently been criticized. See Orin S. Kerr, Are We Over
Protecting Code? Thought on First-Generation Internet Law, 57 Wash. & Lee L.
Rev. 1287 (2 00). Prof. Kerr apprehends that if encryption code is First
Amendment speech because it conveys "ideas about cryptography,"
Junger, 209 F.3d at 484, all code wi11 be protected "because code will
always convey information about itself." Kerr, supra , at 1291. That should
not suffice, he argues, because handing someone an object, or example, a padlock,
is a good way of communicating how that object works, yet a padlock is not
speech. Id. a t 1291-92. However, code does not cease to be speech just because
some objects that convey information are not speech. Both code and a padlock can
convey information, but only code, because it uses a notational system
comprehensible by humans, is communication that qualifies as speech. Prof. Kerr
might be right that making the communication of ideas for information the test
of whether code is speech provides First Amendment coverage to many, perhaps
most, computer programs, but that is a consequence of the information-conveying
capacity of the programs, not a reason for denying them First Amendment coverage.
Supreme Court has used slightly different formulations to express the narrow
tailoring requirement of a content-neutral regulation. In O'Brien, the
formulation was "if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that
interest." 391 .S. at 377. In Ward, the formulation was "'so long as
the . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation."' 491 U.S. at 99 (quoting
United States v. Albertini , 472 U.S. 675, 689 (1985)). Ward added, however,
that the regulation may not "burden substantially more speech than is
necessary to further the government's legitimate interests." Id. (emphasis
added). Turner Broadcasting quoted both the "no greater than is
essential" formulation from Brim, see Turner Broadcasting , 512 U.S. at
662, and the "would be achieved less effectively" formulation from
Ward , see id. Turner Broadcasting made clear that the narrow tailoring
requirement is less demanding than the least restrictive means requirement of a
content-specific regulation, id., and appears to have settled on the
"substantially more" phrasing from Ward as the formulation that best
expresses the requirement, id. That is the formulation we will apply.
This argument is elaborated by some of the amici uriae. "In the absence of
human intervention, code does not function, it engages in no conduct. It is as
passive as a cake recipe." Brief of Amici Curiae Dr. Harold Abelson et al.
More dramatically, the Government calls DeCSS "a digital crowbar."
Brief for Intervenor United States at 19.
Briefs of some of the amici curiae discuss the possibility of adequate
protection against copying of copyrighted materials by adopting the approach of
the Audio Home Recording Act of 1992, 17 U.S.C.. 1002(a), which requirres
digital audio tape recorders to include a technology that prevents serial
copying, but permits making a single copy. See, e.g., Brief of Amici Curiae
Benkle and Lessig at 15. However, the Defendants did not present evidence of the
current feasibility of a similar solution to prevent serial copying of DVDs over
the Internet. Even if the Government, in defending the DMCA, must sustain a
burden of proof in order to satisfy the standards for content- neutral
regulation, the Defendant must adduce enough evidence to create fact issues
concerning the current availability of less intrusive technological solutions.
They did not do so in the District Court. Moreover, we note that when Congress
opted for the solution to serial copying of digital audio tapes, it imposed a
special royalty on manufacturers of digital audio recording devices to be
distributed to appropriate copyright holders. See 17 U.S.C. §§ 1003-1007. We
doubt if the First Amendment required Congress to adopt a similar
technology/royalty scheme for regulating the copying of DVDs, but in any event
the record in this case provides no basis for invalidating the anti-trafficking
provisions of the DMCA or the injunction for lack of such an alternative
have considered the opinion of a California intermediate appellate court in DVD
Copy Control Ass'n v. Bunner, o. H021153, 2001 WL 1340619 (Cal. Ct. App., 6th
Dist. Nov. 1, 2001), declining, on First Amendment grounds, to issue a
preliminary injunction under state trade secrets law prohibiting a web site
operator from posting DeCSS. To the extent that DVD Copy Control disagrees with
our First Amendment analysis, we decline to follow it.
"Hyperlinks" are also called "hypertext links" or
"Linking" not accomplished by a hyperlink would simply involve the
posting of the Internet address ("URL") of another web page. A
"link" of this sort is sometimes called an "inactive link."
With an inactive link, the linked web page would be only four clicks away, one
click to select the URL address for copying, one click to copy the address, one
click to "paste" the address into the text box for URL addresses, and
one click (or striking the "enter" key) to instruct the computer to
call up the linked web site.
acknowledge that the prohibition on linking restricts more than Corley' s
ability to facilitate instant access to DeCSS on linked web sites; it also
restricts his ability to facilitate access to whatever protected speech is
available on those sites. However, those who maintain the linked sites can
instantly make their protected material available for linking by Corley by the
simple expedient of deleting DeCSS from their web sites.
Although we have recognized that the First Amendment provides no entitlement to
use copyrighted materials beyond that accorded by the privilege of fair use,
except in "an extraordinary case," Twin Peaks Productions Inc. v.
Publications International Ltd., 996 F.2d 1366, 1378 (2d Cir. 1993), we have not
ruled that the constitution guarantees any particular formulation or minimum
availability of the fair use defense.
expressed in their supplemental papers, the position of the Appellants is that
"fair use extends to works in whatever form they are offered to the
public," Supplemental Brief for Appellants at 20, by which we understand
the Appellants to contend not merely that fair use may be made of DVD movies but
that the fair user must be permitted access to the digital version of the DVD in
order to directly copy excerpts for fair use in a digital format.
their supplemental papers, the Appellants contend, rather hyperbolically, that a
prohibition on using copying machines to assist in making fair use of texts
could not validly be upheld by the availability of "monks to scribe the
relevant passages." Supplemental Brief for Appellants at 20.
to the overview