UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
| UNIVERSAL CITY STUDIOS, INC, et al., Plaintiffs
v. SHAWN C. REIMERDES, et al., Defendants |
00 Civ. 0277 (LAK) |
LEWIS A. KAPLAN, District Judge.
Plaintiffs, eight major United States motion picture studios, distribute many of their copyrighted motion pictures for home use on digital versatile disks ("DVDs"), which contain copies of the motion pictures in digital form. They protect those motion pictures from copying by using an encryption system called CSS. CSS-protected motion pictures on DVDs may be viewed only on players and computer drives equipped with licensed technology that permits the devices to decrypt and play--but not to copy--the films.
Late last year, computer hackers devised a computer program called DeCSS that circumvents the CSS protection system and allows CSS-protected motion pictures to be copied and played on devices that lack the licensed decryption technology. Defendants quickly posted [**2] DeCSS on their Internet web site, thus making it readily available to much of the world. Plaintiffs promptly brought this action under the Digital Millennium Copyright Act (the "DMCA") [FN1] to enjoin defendants from posting DeCSS and to prevent them from electronically "linking" their site to others that post DeCSS. Defendants responded with what they termed "electronic civil disobedience"--increasing their efforts to link their web site to a large number of [*304] others that continue to make DeCSS available.
Defendants contend that their actions do not violate the DMCA and, in any case, that the DMCA, as applied to computer programs, or code, violates the First Amendment. [FN2] This is the Court's decision after trial, and the decision may be summarized in a nutshell.
Defendants argue first that the DMCA should not be construed to reach their conduct, principally because the DMCA, so applied, could prevent those who wish to gain access to technologically protected copyrighted works in order to make fair--that is, non-infringing--use of them from doing so. They argue that those who would make fair use of technologically protected copyrighted works need means, such as DeCSS, of circumventing access control measures not for piracy, but to make lawful use of those works.
Technological access control measures have the capacity to prevent fair uses of copyrighted works as well as foul. Hence, there is a potential tension between the use of such access control measures and fair use. Defendants are not the first to recognize that possibility. As the DMCA made its way through the legislative process, Congress was preoccupied with precisely this issue. Proponents of strong restrictions on circumvention of access control measures argued that they were essential if copyright holders were to make their works available in digital form because digital works otherwise could be pirated too easily. Opponents contended that strong anticircumvention measures would [**4] extend the copyright monopoly inappropriately and prevent many fair uses of copyrighted material.
Congress struck a balance. The compromise it reached, depending upon future technological and commercial developments, may or may not prove ideal. [FN3] But the solution it enacted is clear. The potential tension to which defendants point does not absolve them of liability under the statute. There is no serious question that defendants' posting of DeCSS violates the DMCA.
Defendants' constitutional argument ultimately rests on two propositions--that computer code, regardless of its function, is "speech" entitled to maximum constitutional protection and that computer code therefore essentially is exempt from regulation by government. But their argument is baseless.
Computer code is expressive. To that extent, it is a matter of First Amendment concern. [**5] But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action.
In an era in which the transmission of computer viruses--which, like DeCSS, are simply computer code and thus to some degree expressive--can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination [*305] of code in appropriate circumstances. The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact.
I. The Genesis of the Controversy
As this case involves computers and technology with which many are unfamiliar, it is useful to begin by defining some of the vocabulary.
A. The Vocabulary of this Case
1. Computers and Operating Systems
A computer is "a digital information processing device . . . . consisting of central processing components . . . and mass data storage [**6] . . . . certain peripheral input/output devices . . . , and an operating system." Personal computers ("PCs") are computers designed for use by one person at a time. "More powerful, more expensive computer systems known as 'servers' . . . are designed to provide data, services, and functionality through a digital network to multiple users." [FN4]
An operating system is "a software program that controls the allocation and use of computer resources (such as central processing unit time, main memory space, disk space, and input/output channels). The operating system also supports the functions of software programs, called 'applications,' that [**7] perform specific user-oriented tasks . . . . Because it supports applications while interacting more closely with the PC system's hardware, the operating system is said to serve as a 'platform.'" [FN5]
Microsoft Windows ("Windows") is an operating system released by Microsoft Corp. It is the most widely used operating system for PCs in the United States, and its versions include Windows 95, Windows 98, Windows NT and Windows 2000.
Linux, which was and continues to be developed through the open source model of software development, [FN6] [**8] also is an operating system. [FN7] It can be run on a PC as an alternative to Windows, although the extent to which it is so used is limited. [FN8] Linux is more widely used on servers. [FN9]
"Computers come down to one basic premise: They operate with a series of on and off switches, using two digits in the binary (base 2) number system--0 (for off) and 1 (for on)." [FN10] All data and instructions input to or contained in computers therefore must be reduced the numerals 1 and 0. [FN11]
"The smallest unit of memory in a computer," a bit, "is a switch with a value of [*306] 0 (off) or 1 (on)." [FN12] A group of [**9] eight bits is called a byte and represents a character--a letter or an integer. [FN13] A kilobyte ("K") is 1024 bytes, a megabyte ("MB") 1024 kilobytes, and a gigabyte ("GB") 1024 megabytes. [FN14]
Some highly skilled human beings can reduce data and instructions to strings of 1's and 0's and thus program computers to perform complex tasks by inputting commands and data in that form. [FN15] But it would be inconvenient, inefficient and, for most people, probably impossible to do so. In consequence, computer science has developed programming languages. These languages, like other written languages, employ symbols and syntax to convey meaning. The text of programs written in these languages is referred to as source code. [FN16] And whether directly or through the medium of another program, [FN17] the sets of instructions written in programming languages--the source code--ultimately are translated into machine "readable" strings of 1's and 0's, known [**10] in the computer world as object code, which typically are executable by the computer. [FN18]
The distinction between source and object code is not as crystal clear as first appears. Depending upon the programming language, source code may contain many 1's and 0's and look a lot like object code or may contain many instructions derived from spoken human language. Programming languages the source code for which approaches object code are referred to as low level source code while those that are more similar to spoken language are referred to as high level source code.
All code is human readable. As source code is closer to human language than is object code, it tends to be comprehended more easily by humans than object code.
3. The Internet and the World Wide Web
The Internet is "a global electronic network, consisting of smaller, interconnected networks, which allows millions of computers to exchange information over telephone wires, dedicated data cables, and wireless links. The Internet links PCs by means of servers, which run specialized operating systems and applications designed for servicing a network environment." [FN19]
Internet Relay Chat ("IRC") is a system that enables individuals connected to the Internet to participate in live typed discussions. [FN20] Participation in an IRC discussion requires an IRC software program, which sends messages via the Internet to the IRC server, which in turn broadcasts the messages to all participants. The IRC [*307] system is capable of supporting many separate discussions at once.
The World Wide Web (the "Web") is "a massive collection of digital information resources stored on servers throughout the Internet. These resources are typically provided in the form of hypertext documents, commonly referred to as 'Web pages,' that may incorporate any combination of text, graphics, audio and video content, software programs, and other data. A user of a computer connected to the Internet can publish a page on the Web simply by copying it into a specially designated, publicly accessible directory on a Web server. Some Web resources are in the form of applications that provide functionality [**13] through a user's PC system but actually execute on a server." [FN21]
A web site is "a collection of Web pages [published on the Web by an individual or organization] . . . . Most Web pages are in the form of 'hypertext'; that is, they contain annotated references, or 'hyperlinks,' to other Web pages. Hyperlinks can be used as cross-references within a single document, between documents on the same site, or between documents on different sites." [FN22]
A home page is "one page on each Web site . . . [that typically serves as] the first access point to the site. The home page is usually a hypertext document that presents an overview of the site and hyperlinks to the other pages comprising the site." [FN23]
A Web client is "software that, when running on a computer connected to the Internet, sends information to and receives information from Web servers throughout the Internet. Web clients and servers transfer data using a standard known as the Hypertext Transfer Protocol ('HTTP'). A 'Web browser' is a type of Web client that enables a user to select, retrieve, and perceive resources on the Web. In particular, Web browsers provide a way for a user to view hypertext documents and follow the hyperlinks that connect them, typically by moving the cursor over a link and depressing the mouse button." [FN24]
Digital files may be stored on several different kinds of storage media, some of which are readily transportable. Perhaps the most familiar of these are so called floppy disks or "floppies," which now are 3 1/2 inch magnetic disks upon which digital files may be recorded. [FN25] For present purposes, however, we are concerned principally with two more recent developments, CD-ROMs [**15] and digital versatile disks, or DVDs.
A CD-ROM is a five-inch wide optical disk capable of storing approximately 650 MB of data. To read the data on a CD-ROM, a computer must have a CD-ROM drive.
DVDs are five-inch wide disks capable of storing more than 4.7 GB of data. In the application relevant here, they are used to hold full-length motion pictures in digital form. They are the latest technology for private home viewing of recorded motion pictures and result in drastically improved audio and visual clarity and quality of motion pictures shown on televisions or computer screens. [FN26]
5. The Technology Here at Issue
CSS, or Content Scramble System, is an access control and copy prevention system for DVDs developed by the motion picture companies, including plaintiffs. [FN27] It is an encryption-based system that requires the use of appropriately configured hardware such as a DVD player or a computer DVD drive to decrypt, unscramble and play back, but not copy, motion pictures on DVDs. [FN28] The technology necessary to configure DVD players and drives to play CSS-protected DVDs [FN29] has been licensed to hundreds of manufacturers in the United States and around the world.
DeCSS is a software utility, or computer program, that enables users to break the CSS copy protection system and hence to view DVDs on unlicensed players and make digital copies of DVD movies. [FN30] The quality of motion pictures decrypted by DeCSS is virtually identical to that of encrypted movies [**17] on DVD. [FN31]
DivX is a compression program available for download over the Internet. [FN32] It compresses video files in order to minimize required storage space, often to facilitate transfer over the Internet or other networks. [FN33]
Plaintiffs are eight major motion picture studios. Each is in the business of producing and distributing copyrighted material including motion pictures. Each distributes, either directly or through affiliates, copyrighted motion pictures on DVDs. [FN34] Plaintiffs produce and distribute a large majority of the motion pictures on DVDs on the market today. [FN35]
[**18] Defendant Eric
Corley is viewed as a leader of the computer hacker community and goes by the
name Emmanuel Goldstein, after the leader of the underground in George Orwell's
classic, 1984. [FN36]
He and his company, defendant 2600 Enterprises, Inc., together publish a
magazine called 2600: The Hacker Quarterly, which Corley founded in 1984, [FN37]
and which is something of a bible to the hacker community. [FN38]
The name "2600" was derived from the fact that hackers in the 1960's found that
the transmission of a 2600 hertz tone over a long distance trunk connection
gained access to "operator mode" and allowed the user to explore aspects of the
telephone system that were not otherwise accessible. [FN39]
Mr. Corley chose the name because he regarded it as a "mystical thing," [FN40]
commemorating something that he evidently admired. Not surprisingly, 2600: The
Hacker Quarterly has included articles on such topics as how to steal an
Internet domain name, [FN41]
access other people's e-mail, [FN42]
intercept cellular phone calls, [FN43]
and break into the computer systems [*309] at Costco stores [FN44]
and Federal Express. [FN45]
One issue contains a guide to the federal criminal justice system for readers
charged [**19] with computer hacking. [FN46]
[**20] In addition, defendants operate a web site located at Prior
to January 2000, when this action was commenced, defendants posted the source
and object code for DeCSS on the 2600.com web site, from which they could be
downloaded easily. [FN48]
At that time, 2600.com contained also a list of links to other web sites
purporting to post DeCSS. [FN49]
C.
The Development of DVD and CSS
The major motion
picture studios typically distribute films in a sequence of so-called windows,
each window referring to a separate channel of distribution and thus to a
separate source of revenue. The first window generally is theatrical release,
distribution, and [**21] exhibition. Subsequently, films are distributed to
airlines and hotels, then to the home market, then to pay television, cable and,
eventually, free television broadcast. The home market is important to
plaintiffs, as it represents a significant source of revenue. [FN50]
Motion pictures first were,
and still are, distributed to the home market in the form of video cassette
tapes. In the early 1990's, however, the major movie studios began to explore
distribution to the home market in digital format, which offered substantially
higher audio and visual quality and greater longevity than video cassette tapes.
[FN51]
This technology, which in 1995 became what is known today as DVD, [FN52]
brought with it a new problem--increased risk of piracy by virtue of the fact
that digital files, unlike the material on video cassettes, can be copied
without degradation from generation to generation. [FN53]
In consequence, the movie studios became concerned as the product neared market
with the threat of DVD piracy. [**22] [FN54]
Discussions among the studios
with the goal of organizing a unified response to the piracy threat began in
earnest in late 1995 or early 1996. [FN55]
They eventually came to include representatives of the consumer electronics and
computer industries, as well as interested members of the public, [FN56]
and focused on both legislative proposals and technological solutions. [FN57]
In 1996, Matsushita Electric Industrial Co. ("MEI") and Toshiba Corp.,
presented--and the studios adopted--CSS. [FN58]
CSS involves
encrypting, according to an encryption algorithm, [FN59]
the digital [*310] sound and graphics [**23] files on a DVD that together
constitute a motion picture. A CSS-protected DVD can be decrypted by an
appropriate decryption algorithm that employs a series of keys stored on the DVD
and the DVD player. In consequence, only players and drives containing the
appropriate keys are able to decrypt DVD files and thereby play movies stored on
DVDs.
As the motion picture
companies did not themselves develop CSS and, in any case, are not in the
business of making DVD players and drives, the technology for making compliant
devices, i.e., devices with CSS keys, had to be licensed to consumer electronics
manufacturers. [FN60]
In order to ensure that the decryption technology did not become generally
available and that compliant devices could not be used to copy as well as merely
to play CSS-protected movies, the technology [**24] is licensed subject to
strict security requirements. [FN61]
Moreover, manufacturers may not, consistent with their licenses, make equipment
that would supply digital output that could be used in copying protected DVDs.
[FN62]
Licenses to manufacture compliant devices are granted on a royalty-free basis
subject only to an administrative fee. [FN63]
[**25] At the time of trial, licenses had been issued to numerous hardware and
software manufacturers, including two companies that plan to release DVD players
for computers running the Linux operating system. [FN64]
With CSS in place, the
studios introduced DVDs on the consumer market in early 1997. [FN65]
All or most of the motion pictures released on DVD were, and continue to be,
encrypted with CSS technology. [FN66]
Over 4,000 motion pictures now have been released in DVD format in the United
States, and movies are being issued on DVD at the rate of over 40 new titles per
month in addition to rereleases of classic films. Currently, more than five
million households in the United States own DVD players, [FN67]
and players are projected to be in ten percent of United States homes by the end
of 2000. [FN68]
DVDs
have proven not only popular, but lucrative for the studios. Revenue from their
sale and rental currently accounts for a substantial percentage of the movie
studios' [**26] revenue from the home video market. [FN69]
Revenue from the home market, in [*311] turn, makes up a large percentage of the
studios' total distribution revenue. [FN70]
In late September 1999, Jon
Johansen, a Norwegian subject then fifteen years of age, and two individuals he
"met" under pseudonyms over the Internet, reverse engineered a licensed DVD
player and discovered the CSS encryption algorithm and keys. [FN71]
They used this information to create DeCSS, a program capable of decrypting or
"ripping" encrypted DVDs, thereby allowing playback on non-compliant computers
as well as the copying of decrypted files to computer hard drives. [FN72]
Mr. Johansen then [**27] posted the executable code on his personal Internet web
site and informed members of an Internet mailing list that he had done so. [FN73]
Neither Mr. Johansen nor his collaborators obtained a license from the DVD CCA.
[FN74]
Although Mr. Johansen
testified at trial that he created DeCSS in order to make a DVD player that
would operate on a computer running the Linux operating system, [FN75]
DeCSS is a Windows executable file; that is, it can be executed only on
computers running the Windows operating system. [FN76]
Mr. Johansen explained the fact that he created a Windows rather than a Linux
program by asserting that Linux, at the time he created DeCSS, did not support
[**28] the file system used on DVDs. [FN77]
Hence, it was necessary, he said, to decrypt the DVD on a Windows computer in
order subsequently to play the decrypted files on a Linux machine. [FN78]
Assuming that to be true, [FN79]
however, the fact remains that Mr. Johansen created DeCSS in the full knowledge
that it could be used on computers running Windows rather than Linux. Moreover,
he was well aware that the files, once decrypted, could be copied like any other
computer files.
In January 1999,
Norwegian prosecutors filed charges against Mr. Johansen stemming from the
development of DeCSS. [FN80]
The disposition of the Norwegian [**29] case does not appear of record.
In the
months following its initial appearance on Mr. Johansen's web site, DeCSS has
become widely available on the Internet, where hundreds of sites now purport to
offer the software for download. [FN81]
A few other applications said to decrypt CSS-encrypted DVDs also have appeared
on the Internet. [FN82]
[*312] In November 1999, defendants' web site
began to offer DeCSS for download. [FN83]
It established also a list of links to several web sites that purportedly
"mirrored" or offered DeCSS for download. [FN84]
[**31] The links on defendants' mirror list fall into one of three categories.
By clicking the mouse on one of these links, the user may be brought to a page
on the linked-to site on which there appears a further link to the DeCSS
software. [FN85]
If the user then clicks on the DeCSS link, download of the software begins. This
page may or may not contain content other than the DeCSS link. [FN86]
Alternatively, the user may be brought to a page on the linked-to site that does
not itself purport to link to DeCSS, but that links, either directly or via a
series of other pages on the site, to another page on the site on which there
appears a link to the DeCSS software. [FN87]
Finally, the user may be brought directly to the DeCSS link on the linked-to
site such that download of DeCSS begins immediately without further user
intervention. [FN88]
F.
The Preliminary Injunction and Defendants' Response
The movie studios, through
the Internet investigations division of the Motion Picture Association of
America ("MPAA"), became aware of the availability of DeCSS on the Internet in
October 1999. [FN89]
The industry responded by sending out a number of cease and desist letters to
web site operators who posted the software, some of which removed it from their
sites. [FN90]
In January 2000, the studios filed this lawsuit against [**32] defendant Eric
Corley and two others. [FN91]
After
a hearing at which defendants presented no affidavits or evidentiary material,
the Court granted plaintiffs' motion for a preliminary injunction barring
defendants from posting DeCSS. [FN92]
At the conclusion of the hearing, plaintiffs sought also to enjoin defendants
from linking to other sites that posted DeCSS, but the Court declined to
entertain the application at that time in view of plaintiffs' failure to raise
the issue in their motion papers. [FN93]
Following the issuance of the
preliminary injunction, defendants removed DeCSS from the 2600.com web site. [FN94]
In what they termed an act of "electronic civil disobedience," [FN95]
however, they continued to support links to other web sites purporting to offer
DeCSS for download, a list which had grown to nearly five hundred by July 2000.
[FN96]
Indeed, they carried a banner [*313] saying "Stop the MPAA" and, in a reference
to this lawsuit, proclaimed:
At least some of the
links currently [**34] on defendants' mirror list lead the user to copies of
DeCSS that, when downloaded and executed, successfully decrypt a motion picture
on a CSS-encrypted DVD. [FN98]
The effect on plaintiffs of defendants'
posting of DeCSS depends upon the ease with which DeCSS decrypts plaintiffs'
copyrighted motion pictures, the quality of the resulting product, and the
convenience with which decrypted copies may be transferred or transmitted.
As noted,
DeCSS was available for download from defendants' web site and remains available
from web sites on defendants' mirror list. [FN99]
Downloading is simple and quick--plaintiffs' expert did it in seconds. [FN100]
The program in fact decrypts at least some DVDs. [FN101]
Although the process is computationally intensive, plaintiffs' expert decrypted
a store-bought copy of Sleepless in Seattle in [**35] 20 to 45 minutes. [FN102]
The copy is stored on the hard drive of the computer. The quality of the
decrypted film is virtually identical to that of encrypted films on DVD. [FN103]
The decrypted file can be copied like any other. [FN104]
The
decryption of a CSS-protected DVD is only the beginning of the tale, as the
decrypted file is very large--approximately 4.3 to 6 GB or more depending on the
length of the film [FN105]
--and thus extremely cumbersome to transfer or to store on portable storage
media. One solution to this problem, however, is DivX, a compression utility
available on the Internet that is promoted as a means of compressing decrypted
motion picture files to manageable [**36] size. [FN106]
DivX is capable of
compressing decrypted files constituting a feature length motion picture to
approximately 650 MB at a compression ratio that involves little loss of
quality. [FN107]
[**37] While the compressed sound and graphic files then must be synchronized, a
tedious process that took plaintiffs' expert between 10 and 20 hours, [FN108]
the task is entirely feasible. Indeed, having compared a store-bought DVD with
portions of a copy compressed and synchronized with DivX (which often are
referred to as "DivX'd" motion pictures), the Court finds that the loss of
quality, at least [*314] in some cases, is imperceptible or so nearly
imperceptible as to be of no importance to ordinary consumers. [FN109]
The
fact that DeCSS-decrypted DVDs can be compressed satisfactorily to 650 MB is
very important. A writeable CD-ROM can hold 650 MB. [FN110]
0Hence, it is entirely feasible to decrypt a DVD with DeCSS, compress and
synchronize it with DivX, and then make as many copies as one wishes by burning
the resulting files onto writeable CD-ROMs, which are sold blank for about one
dollar apiece. [FN111]
Indeed, even if one wished to use a lower compression ratio to improve quality,
a film easily could be compressed to about 1.3 GB and burned onto two CD-ROMs.
But the creation of pirated copies of copyrighted movies on writeable CD-ROMs,
although significant, is not the principal focus of plaintiffs' concern, which
is transmission of pirated copies over the Internet or other networks. [**38]
Network transmission of
decrypted motion pictures raises somewhat more difficult issues because even 650
MB is a very large file that, depending upon the circumstances, may take a good
deal of time to transmit. But there is tremendous variation in transmission
times. Many home computers today have modems with a rated capacity of 56
kilobits per second. DSL lines, which increasingly are available to home and
business users, offer transfer rates of 7 megabits per second. [FN112]
Cable modems also offer increased bandwidth. Student rooms in many universities
are equipped with network connections rated at 10 megabits per second. [FN113]
Large institutions such as universities and major companies often have networks
with backbones rated at 100 megabits per second. [FN114]
While effective transmission times generally are much lower than rated maximum
capacities in consequence of traffic volume [**39] and other considerations,
there are many environments in which very high transmission rates may be
achieved. [FN115]
Hence, transmission times ranging from three [FN116]
to twenty minutes [FN117]
to six hours [FN118]
or more for a feature length film are readily achievable, depending upon the
users' precise circumstances. [FN119]
At trial,
defendants repeated, as if it were a mantra, the refrain [**40] that plaintiffs,
as they stipulated, [FN120]
have no direct evidence of a specific occasion on which any person decrypted a
copyrighted motion picture with DeCSS and transmitted it over the Internet. But
that is unpersuasive. Plaintiffs' expert expended very little effort to find
someone in an IRC chat room who exchanged a compressed, decrypted copy of The
Matrix, one of plaintiffs' copyrighted motion pictures, for a [*315] copy of
Sleepless in Seattle. [FN121]
While the simultaneous electronic exchange of the two movies took approximately
six hours, [FN122]
the computers required little operator attention during the interim. An MPAA
investigator downloaded between five and ten DVD-sourced movies over the
Internet after December 1999. [FN123]
At least one web site contains a list of 650 motion pictures, said to have been
decrypted and compressed with DivX, that purportedly are available for sale,
trade or free download. [FN124]
And although the Court does not accept the list, which is hearsay, as proof of
the truth of the matters asserted therein, it does note that advertisements for
decrypted versions of copyrighted movies first appeared on the Internet in
substantial numbers in late 1999, following [**41] the posting of DeCSS. [FN125]
The net of all this is reasonably plain.
DeCSS is a free, effective and fast means of decrypting plaintiffs' DVDs and
copying them to computer hard drives. DivX, which is available over the Internet
for nothing, with the investment of some time and effort, permits compression of
the decrypted files to sizes that readily fit on a writeable CD-ROM. Copies of
such CD-ROMs can be produced very cheaply and distributed as easily as other
pirated intellectual property. While not everyone with Internet access now will
find it convenient to send or receive DivX'd copies of pirated motion pictures
over the Internet, the availability of high speed network connections in many
businesses and institutions, and their growing availability in homes, make
Internet and other network traffic [**42] in pirated copies a growing threat.
These circumstances
have two major implications for plaintiffs. First, the availability of DeCSS on
the Internet effectively has compromised plaintiffs' system of copyright
protection for DVDs, requiring them either to tolerate increased piracy or to
expend resources to develop and implement a replacement system unless the
availability of DeCSS is terminated. [FN126]
It is analogous to the publication of a bank vault combination in a national
newspaper. Even if no one uses the combination to open the vault, its mere
publication has the effect of defeating the bank's security system, forcing the
bank to reprogram the lock. Development and implementation of a new DVD copy
protection system, however, is far more difficult and costly than reprogramming
a combination lock and may carry with it the added problem of rendering the
existing installed base of compliant DVD players obsolete.
Second, the
application of DeCSS to copy and distribute motion pictures [**43] on DVD, both
on CD-ROMs and via the Internet, threatens to reduce the studios' revenue from
the sale and rental of DVDs. It threatens also to impede new, potentially
lucrative initiatives for the distribution of motion pictures in digital form,
such as video-on-demand via the Internet. [FN127]
In consequence, plaintiffs already have
been gravely injured. As the pressure for and competition to supply more and
more users with faster and faster network connections grows, the injury will
multiply.
II.
The Digital Millennium Copyright Act
A.
Background and Structure of the Statute
In December 1996, the
World Intellectual Property Organization ("WIPO"), held a diplomatic conference
in Geneva that led to the adoption of two treaties. Article 11 of the relevant
treaty, the WIPO Copyright [*316] Treaty, provides in relevant part that
contracting states "shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are
used [**44] 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."
[FN128]
The
adoption of the WIPO Copyright Treaty spurred continued Congressional attention
to the adaptation of the law of copyright to the digital age. Lengthy hearings
involving a broad range of interested parties both preceded and succeeded the
Copyright Treaty. As noted above, a critical focus of Congressional
consideration of the legislation was the conflict between those who opposed
anti-circumvention measures as inappropriate extensions of copyright and
impediments to fair use and those who supported them as essential to proper
protection of copyrighted materials in the digital age. [FN129]
The DMCA was enacted in October 1998 as the culmination of this process. [**45]
[FN130]
The DMCA contains two
principal anticircumvention provisions. The first, Section 1201(a)(1), governs
"the act of circumventing a technological protection measure put in place by a
copyright owner to control access to a copyrighted work," an act described by
Congress as "the electronic equivalent of breaking into a locked room in order
to obtain a copy of a book." [FN131]
The second, Section 1201(a)(2), which is the focus of this case, "supplements
the prohibition against the act of circumvention in paragraph (a)(1) with
prohibitions on creating and making available certain technologies . . .
developed or advertised to defeat technological protections against unauthorized
access to a work." [FN132]
As defendants are accused here only of posting and linking to [**46] other sites
posting DeCSS, and not of using it themselves to bypass plaintiffs' access
controls, it is principally the second of the anticircumvention provisions that
is at issue in this case. [FN133]
1.
Violation of Anti-Trafficking [**47] Provision
Section 1201(a)(2) of the
Copyright Act, part of the DMCA, provides that:
(1)
CSS Effectively Controls Access to Copyrighted Works
During pretrial proceedings and at
trial, defendants attacked plaintiffs' Section 1201(a)(2)(A) claim, arguing that
CSS, which is based on a 40-bit encryption key, is a weak cipher that does not
"effectively control" access to plaintiffs' copyrighted works. They reasoned
from this premise that CSS is not protected under this branch of the statute at
all. Their post-trial memorandum appears to have abandoned this argument. In any
case, however, the contention is indefensible as a matter of law.
First, the statute expressly provides that "a technological measure 'effectively
controls access to a work' if the measure, in the ordinary course of its
operation, requires the application of information or a process or a treatment,
with the authority of the copyright owner, to gain access to a work." [FN138]
One cannot gain access to a CSS-protected work on a DVD without application of
the three keys that are required by the software. One cannot lawfully gain
access to the keys except by entering into a license with the DVD CCA [*318]
under authority granted by the copyright owners or by purchasing a DVD player
[**51] or drive containing the keys pursuant to such a license. In consequence,
under the express terms of the statute, CSS "effectively controls access" to
copyrighted DVD movies. It does so, within the meaning of the statute, whether
or not it is a strong means of protection. [FN139]
This view is confirmed by the
legislative history, which deals with precisely this point. The House Judiciary
Committee section-by-section analysis of the House bill, which in this respect
was enacted into law, makes clear that a technological measure "effectively
controls access" to a copyrighted work if its function is to control
access:
Finally, the
interpretation of the phrase "effectively controls access" offered by defendants
at trial--viz., that the use of the word "effectively" means that the statute
protects only successful or efficacious technological means of controlling
access--would gut the statute if it were adopted. If a technological means of
access control is circumvented, it is, in common parlance, ineffective. Yet
defendants' construction, if adopted, would limit the application of the statute
to access control measures that thwart circumvention, but withhold protection
for those measures that can be circumvented. In other words, defendants would
have the Court construe the statute to offer protection where none is needed but
to withhold protection precisely where protection is essential. The Court
declines to do so. Accordingly, the Court holds that CSS effectiely controls
access to plaintiffs' copyrighted works. [FN142]
[**54]
(2)
DeCSS Was Designed Primarily to Circumvent CSS
As CSS effectively
controls access to plaintiffs' copyrighted works, the only remaining question
under Section 1201(a)(2)(A) is whether DeCSS was designed primarily to
circumvent CSS. The [*319] answer is perfectly obvious. By the admission of both
Jon Johansen, the programmer who principally wrote DeCSS, and defendant Corley,
DeCSS was created solely for the purpose of decrypting CSS--that is all it does.
[FN143]
Hence, absent satisfaction of a statutory exception, defendants clearly violated
Section 1201(a)(2)(A) by posting DeCSS to their web site.
As the only purpose or use of DeCSS is
to circumvent CSS, the foregoing is sufficient to establish a prima facie
violation of Section 1201(a)(2)(B) as well.
Perhaps the
centerpiece of defendants' statutory position is the contention that DeCSS was
not created for the purpose of pirating copyrighted motion pictures. [**55]
Rather, they argue, it was written to further the development of a DVD player
that would run under the Linux operating system, as there allegedly were no
Linux compatible players on the market at the time. [FN144]
The argument plays itself out in various ways as different elements of the DMCA
come into focus. But it perhaps is useful to address the point at its most
general level in order to place the preceding discussion in its fullest context.
As
noted, Section 1201(a) of the DMCA contains two distinct prohibitions. Section
1201(a)(1), the so-called basic provision, "aims against those who engage in
unauthorized circumvention of technological measures . . . . [It] focuses
directly on wrongful conduct, rather than on those who facilitate wrongful
conduct . . . ." [FN145]
Section 1201(a)(2), the anti-trafficking provision at issue in this case, on the
other hand, separately bans offering or providing technology that may be used to
circumvent technological means of controlling access [**56] to copyrighted
works. [FN146]
If the means in question meets any of the three prongs of the standard set out
in Section 1201(a)(2)(A), (B), or (C), it may not be offered or disseminated.
As the earlier discussion demonstrates,
the question whether the development of a Linux DVD player motivated those who
wrote DeCSS is immaterial to the question whether the defendants now before the
Court violated the anti-trafficking provision of the DMCA. The inescapable facts
are that (1) CSS is a technological means that effectively controls access to
plaintiffs' copyrighted works, (2) the one and only function of DeCSS is to
circumvent CSS, and (3) defendants offered and provided DeCSS by posting it on
their web site. Whether defendants did so in order to infringe, or to permit or
encourage others to infringe, copyrighted works in violation of other provisions
of the Copyright Act simply does not matter for purposes [**57] of Section
1201(a)(2). The offering or provision of the program is the prohibited
conduct--and it is prohibited irrespective of why the program was written,
except to whatever extent motive may be germane to determining whether their
conduct falls within one of the statutory exceptions.
Earlier in the
litigation, defendants contended that their activities came within several
exceptions contained in the DMCA and the Copyright Act and constitute fair use
under the Copyright Act. Their post-trial memorandum appears to confine their
argument to the reverse engineering exception. [FN147]
In any case, all of their assertions are entirely without merit.
Defendants claim to fall
under Section 1201(f) of the statute, which provides [*320] in substance that
one may circumvent, or develop and employ technological means to circumvent,
access control measures in order to achieve interoperability with another
computer program provided [**58] that doing so does not infringe another's
copyright [FN148]
and, in addition, that one may make information acquired through such efforts
"available to others, if the person [in question] . . . provides such
information solely for the purpose of enabling interoperability of an
independently created computer program with other programs, and to the extent
that doing so does not constitute infringement . . . ." [FN149]
They contend that DeCSS is necessary to achieve interoperability between
computers running the Linux operating system and DVDs and that this exception
therefore is satisfied. [FN150]
This contention fails.
First, Section 1201(f)(3) permits
information acquired through reverse engineering to be made available to others
only by the person who acquired the information. But these defendants did not do
any reverse engineering. They simply took DeCSS off someone else's web site and
[**59] posted it on their own.
Defendants would be in
no stronger position even if they had authored DeCSS. The right to make the
information available extends only to dissemination "solely for the purpose" of
achieving interoperability as defined in the statute. It does not apply to
public dissemination of means of circumvention, as the legislative history
confirms. [FN151]
These defendants, however, did not post DeCSS "solely" to achieve
interoperability with Linux or anything else.
Finally, it is important to recognize
that even the creators of DeCSS cannot credibly maintain that the "sole" purpose
of DeCSS was to create a Linux DVD player. DeCSS concededly was developed on and
runs under Windows--a far more widely used operating system. The developers of
DeCSS therefore knew that DeCSS could be used to decrypt and play DVD movies on
Windows as well as Linux machines. They knew also that the decrypted files could
be copied like any other unprotected computer file. Moreover, the Court [**60]
does not credit Mr. Johansen's testimony that he created DeCSS solely for the
purpose of building a Linux player. Mr. Johansen is a very talented young man
and a member of a well known hacker group who viewed "cracking" CSS as an end it
itself and a means of demonstrating his talent and who fully expected that the
use of DeCSS would not be confined to Linux machines. Hence, the Court finds
that Mr. Johansen and the others who actually did develop DeCSS did not do so
solely for the purpose of making a Linux DVD player if, indeed, developing a
Linux-based DVD player was among their purposes.
Accordingly, the reverse engineering
exception to the DMCA has no application here.
Section 1201(g)(4) provides in
relevant part that:
Neither of the defendants remaining in this case was or is involved in good
faith encryption research. [FN153]
They posted DeCSS for all the world to see. There is no evidence that they made
any effort to provide the results of the DeCSS effort to the copyright owners.
Surely there is no suggestion that either of them made a good faith effort to
obtain authorization from the copyright owners. Accordingly, defendants are not
protected by Section 1201(g). [FN154]
[**63] c.
Security testing
Defendants contended earlier that their actions should be considered exempt
security testing under Section 1201(j) of the statute. [FN155]
This exception, however, is limited to "assessing a computer, computer system,
or computer network, solely for the purpose of good faith testing,
investigating, or correcting [of a] security flaw or vulnerability, with the
authorization of the owner or operator of such computer system or computer
network." [FN156]
The record does not
indicate that DeCSS has anything to do with testing computers, computer systems,
or computer networks. Certainly defendants sought, and plaintiffs' granted, no
authorization for defendants' activities. This exception therefore has no
bearing in this case. [FN157]
[**64] d.
Fair use
Finally, defendants
rely on the doctrine of fair use. Stated in its most general terms, the
doctrine, now codified in Section 107 of the Copyright Act, [FN158]
limits the exclusive rights of a copyright holder by permitting others to make
limited use of portions of the copyrighted work, for appropriate purposes, free
of liability for copyright infringement. For example, it is permissible for one
other than the copyright owner to reprint or quote a suitable part of a
copyrighted book or article in certain circumstances. The doctrine traditionally
has facilitated literary and artistic criticism, teaching and scholarship, and
other socially useful forms of expression. [*322] It has been viewed by courts
as a safety valve that accommodates the exclusive rights conferred by copyright
with the freedom of expression guaranteed by the First Amendment.
The
use of technological means of controlling access to a copyrighted work may
affect the ability to make fair uses [**65] of the work. [FN159]
Focusing specifically on the facts of this case, the application of CSS to
encrypt a copyrighted motion picture requires the use of a compliant DVD player
to view or listen to the movie. Perhaps more significantly, it prevents exact
copying of either the video or the audio portion of all or any part of the film.
[FN160]
This latter point means that certain uses that might qualify as "fair" for
purposes of copyright infringement--for example, the preparation by a film
studies professor of a single CD-ROM or tape containing two scenes from
different movies in order to illustrate a point in a lecture on cinematography,
as opposed to showing relevant parts of two different DVDs--would be difficult
or impossible absent circumvention of the CSS encryption. Defendants therefore
argue that the DMCA cannot properly be construed to make it difficult or
impossible to make any fair use of plaintiffs' copyrighted works and that the
statute therefore does not reach their activities, which are simply a means to
enable users of DeCSS to make such fair uses.
Defendants have focused on a significant
point. Access control measures such as CSS do involve some risk of preventing
lawful as well as unlawful uses of copyrighted material. Congress, however,
clearly faced up to and dealt with this question in enacting the DMCA.
The Court begins
its statutory analysis, as it must, with the language of the statute. Section
107 of the Copyright Act provides in critical part that certain uses of
copyrighted works that otherwise would be wrongful are "not . . .
infringement[s] of copyright." [FN161]
Defendants, however, are not here sued for copyright infringement. They are sued
for offering and providing technology designed to circumvent technological
measures that control access to copyrighted works and otherwise violating
Section 1201(a)(2) of the Act. If Congress had meant the fair use defense to
apply to such actions, [**67] it would have said so. Indeed, as the legislative
history demonstrates, the decision not to make fair use a defense to a claim
under Section 1201(a) was quite deliberate.
Congress was well
aware during the consideration of the DMCA of the traditional role of the fair
use defense in accommodating the exclusive rights of copyright owners with the
legitimate interests of noninfringing users of portions of copyrighted works. It
recognized the contention, voiced by a range of constituencies concerned with
the legislation, that technological controls on access to copyrighted works
might erode fair use by preventing access even for uses that would be deemed
"fair" if only access might be gained. [FN162]
And it struck a balance among the competing interests.
The
first element of the balance was the careful limitation of Section 1201(a)(1)'s
prohibition of the act of circumvention to the act itself so as not to "apply to
subsequent actions of a person once he or she has obtained authorized access to
a copy of a [copyrighted] work. . . ." [FN163]
By doing so, it left "the traditional defenses to copyright infringement,
including fair use, . . . fully applicable" provided "the access is authorized."
[FN164]
Second, Congress
delayed the effective date of Section 1201(a)(1)'s prohibition of the act of
circumvention for two years pending further investigation about how best to
reconcile Section 1201(a)(1) with fair use concerns. Following that
investigation, which is being carried out in the form of a rule-making by the
Register of Copyright, the prohibition will not apply to users of particular
classes of copyrighted works who demonstrate that their ability to make
noninfringing uses of those classes of works would be affected [**69] adversely
by Section 1201(a)(1). [FN165]
Third, it created a
series of exceptions to aspects of Section 1201(a) for certain uses that
Congress thought "fair," including reverse engineering, security testing, good
faith encryption research, and certain uses by nonprofit libraries, archives and
educational institutions. [FN166]
Defendants claim also
that the possibility that DeCSS might be used for the purpose of gaining access
to copyrighted works in order to make fair use of those works saves them under
Sony Corp. v. Universal City Studios, Inc. [**70] [FN167]
But they are mistaken. Sony does not apply to the activities with which
defendants here are charged. Even if it did, it would not govern here. Sony
involved a construction of the Copyright Act that has been overruled by the
later enactment of the DMCA to the extent of any inconsistency between Sony and
the new statute.
Sony was a suit for
contributory infringement brought against manufacturers of video cassette
recorders on the theory that the manufacturers were contributing to infringing
home taping of copyrighted television broadcasts. The Supreme Court held that
the manufacturers were not liable in view of the substantial numbers of
copyright holders who either had authorized or did not object to such taping by
viewers. [FN168]
But Sony has no application here.
[**71] When Sony was decided, the only
question was whether the manufacturers could be held liable for infringement by
those who purchased equipment from them in circumstances in which there were
many noninfringing uses for their equipment. But that is not the question now
before this Court. The question here is whether the possibility of noninfringing
fair use by someone who gains access to a protected copyrighted work through a
circumvention technology distributed by the defendants saves the defendants from
liability under Section 1201. But nothing in Section 1201 so suggests. By
prohibiting the provision of circumvention technology, the DMCA fundamentally
altered the landscape. A given device or piece of technology might have "a
substantial noninfringing use, and hence be immune from attack under Sony's
construction of the Copyright Act--but nonetheless still be subject to
suppression under Section 1201." [FN169]
Indeed, [*324] Congress explicitly noted that Section 1201 does not incorporate
Sony. [FN170]
The policy concerns raised by defendants
were considered by Congress. Having considered them, Congress crafted a statute
that, so far as the applicability of the fair use defense to Section 1201(a)
claims is concerned, is crystal clear. In such circumstances, courts may not
undo what Congress so plainly has done by "construing" the words of a statute to
accomplish a result that Congress rejected. The fact that Congress elected to
leave technologically unsophisticated persons who wish to make fair use of
encrypted copyrighted works without the technical means of doing so is a matter
for Congress unless Congress' decision contravenes the Constitution, a matter to
which the Court turns below. Defendants' statutory fair use argument therefore
is entirely without merit.
C.
Linking to Sites Offering DeCSS
Plaintiffs seek also
to enjoin defendants from "linking" their [**73] 2600.com web site to other
sites that make DeCSS available to users. Their request obviously stems in no
small part from what defendants themselves have termed their act of "electronic
civil disobedience" --their attempt to defeat the purpose of the preliminary
injunction by (a) offering the practical equivalent of making DeCSS available on
their own web site by electronically linking users to other sites still offering
DeCSS, and (b) encouraging other sites that had not been enjoined to offer the
program. The dispositive question is whether linking to another web site
containing DeCSS constitutes "offering [DeCSS] to the public" or "providing or
otherwise trafficking" in it within the meaning of the DMCA. [FN171]
Answering this question requires careful consideration of the nature and types
of linking.
Most web pages are written
in computer languages, chiefly HTML, which allow the programmer to prescribe the
appearance of the web page on the computer screen [**74] and, in addition, to
instruct the computer to perform an operation if the cursor is placed over a
particular point on the screen and the mouse then clicked. [FN172]
Programming a particular point on a screen to transfer the user to another web
page when the point, referred to as a hyperlink, is clicked is called linking.
[FN173]
Web pages can be designed to link to other web pages on the same site or to web
pages maintained by different sites. [FN174]
As noted earlier, the links that
defendants established on their web site are of several types. Some transfer the
user to a web page on an outside site that contains a good deal of information
of various types, does not itself contain a link to DeCSS, but that links,
either directly [**75] or via a series of other pages, to another page on the
same site that posts the software. It then is up to the user to follow the link
or series of links on the linked-to web site in order to arrive at the page with
the DeCSS link and commence the download of the software. Others take the user
to a page on an outside web site on which there appears a direct link to the
DeCSS software and which may or may not contain text or links other than the
DeCSS link. The user has only to click on the DeCSS link to commence the
download. Still others may directly transfer the user to a file on the linked-to
web site such that the download of DeCSS to the user's computer automatically
[*325] commences without further user intervention.
The statute makes it
unlawful to offer, provide or otherwise traffic in described technology. [FN175]
To "traffic" in something is to engage in dealings in it, [FN176]
conduct that necessarily involves awareness of the nature of the subject of the
trafficking. To "provide" something, in the sense used in the statute, is to
make it available or furnish it. [FN177]
To "offer" is to present or hold it out for consideration. [FN178]
The phrase "or otherwise traffic in" modifies and gives [**76] meaning to the
words "offer" and "provide." [FN179]
In consequence, the anti-trafficking provision of the DMCA is implicated where
one presents, holds out or makes a circumvention technology or device available,
knowing its nature, for the purpose of allowing others to acquire it.
To the extent that defendants have
linked to sites that automatically commence the process of downloading DeCSS
upon a user being transferred by defendants' hyperlinks, there can be no serious
question. Defendants are engaged in the functional equivalent of transferring
the DeCSS code to the user themselves.
Substantially the same is true of
defendants' hyperlinks to web pages that display nothing more than the DeCSS
code or present [**77] the user only with the choice of commencing a download of
DeCSS and no other content. The only distinction is that the entity extending to
the user the option of downloading the program is the transferee site rather
than defendants, a distinction without a difference.
Potentially more
troublesome might be links to pages that offer a good deal of content other than
DeCSS but that offer a hyperlink for downloading, or transferring to a page for
downloading, DeCSS. If one assumed, for the purposes of argument, that the Los
Angeles Times web site somewhere contained the DeCSS code, it would be wrong to
say that anyone who linked to the Los Angeles Times web site, regardless of
purpose or the manner in which the link was described, thereby offered, provided
or otherwise trafficked in DeCSS merely because DeCSS happened to be available
on a site to which one linked. [FN180]
But that is not this case. Defendants urged others to post DeCSS in an effort to
disseminate DeCSS and to inform defendants that they were doing so. Defendants
then linked their site to those "mirror" sites, after first checking to ensure
that the mirror sites in fact were posting DeCSS or something that looked [**78]
like it, and proclaimed on their own site that DeCSS could be had by clicking on
the hyperlinks on defendants' site. By doing so, they offered, provided or
otherwise trafficked in DeCSS, and they continue to do so to this day.
Defendants argue that the DMCA, at least
as applied to prevent the public dissemination of DeCSS, violates the First
Amendment to the Constitution. They claim that it does so in two ways. First,
they argue that computer code is protected speech and that the DMCA's
prohibition of dissemination of DeCSS therefore violates defendants' First
Amendment rights. Second, they contend that the DMCA is unconstitutionally
[*326] overbroad, [**79] chiefly because its prohibition of the dissemination of
decryption technology prevents third parties from making fair use of plaintiffs'
encrypted works, and vague. They argue also that a prohibition on their linking
to sites that make DeCSS available is unconstitutional for much the same
reasons.
A.
Computer Code and the First Amendment
The premise of defendants' first
position is that computer code, the form in which DeCSS exists, is speech
protected by the First Amendment. Examination of that premise is the logical
starting point for analysis. And it is important in examining that premise first
to define terms.
Defendants' assertion that computer code is "protected" by the First Amendment
is quite understandable. Courts often have spoken of certain categories of
expression as "not within the area of constitutionally protected speech," [FN181]
so defendants naturally wish to avoid exclusion by an unfavorable categorization
of computer code. But such judicial statements in fact are not literally true.
All modes of expression are covered by the First Amendment in the sense that the
constitutionality of their "regulation must be determined by reference to First
Amendment doctrine [**80] and analysis." [FN182]
Regulation of different categories of expression, however, is subject to varying
levels of judicial scrutiny. Thus, to say that a particular form of expression
is "protected" by the First Amendment means that the constitutionality of any
regulation of it must be measured by reference to the First Amendment. In some
circumstances, however, the phrase connotes also that the standard for
measurement is the most exacting level available.
It cannot seriously be
argued that any form of computer code may be regulated without reference to
First Amendment doctrine. The path from idea to human language to source code to
object code is a continuum. As one moves from one to the other, the levels of
precision and, arguably, abstraction increase, as does the level of training
necessary to discern the idea from the expression. Not everyone can understand
each of these forms. Only English speakers will understand English formulations.
Principally those familiar with the particular programming language will
understand the source code expression. And only a relatively small number of
skilled programmers and computer scientists will understand the machine readable
object code. [**82] But each form expresses the same idea, albeit in different
ways. [FN183]
There perhaps was a time
when the First Amendment was viewed only as a limitation on the ability of
government to censor speech in advance. [FN184]
[*327] But we have moved far beyond that. All modes by which ideas may be
expressed or, perhaps, emotions evoked--including speech, books, movies, art,
and music--are within the area of First Amendment concern. [FN185]
As computer code--whether source or object--is a means of expressing ideas, the
First Amendment must be considered before its dissemination may be prohibited or
regulated. In that sense, computer code is covered or, as sometimes is said,
"protected" by the First Amendment. [**83] [FN186]
But that conclusion still leaves for determination the level of scrutiny to be
applied in determining the constitutionality of regulation of computer code.
[**84] B.
The Constitutionality of the DMCA's Anti-Trafficking Provision
1.
Defendants' Alleged Right to Disseminate DeCSS
Defendants first attack Section
1201(a)(2), the anti-trafficking provision, as applied to them on the theory
that DeCSS is constitutionally protected expression and that the statute
improperly prevents them from communicating it. Their attack presupposes that a
characterization of code as constitutionally protected subjects any regulation
of code to the highest level of First Amendment scrutiny. As we have seen,
however, this does not necessarily follow.
Just as computer code cannot be excluded
from the area of First Amendment concern because it is abstract and, in many
cases, arcane, the long history of First Amendment jurisprudence makes equally
clear that the fact that words, symbols and even actions convey ideas and evoke
emotions does not inevitably place them beyond the power of government. The
Supreme Court has evolved an analytical framework by which the permissibility of
particular restrictions on the expression of ideas must determined.
Broadly speaking, restrictions on
expression fall into two categories. Some are restrictions on the voicing [**85]
of particular ideas, which typically are referred to as content based
restrictions. Others have nothing to do with the content of the
expression--i.e., they are content neutral--but they have the incidental effect
of limiting expression.
In general,
"government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content . . . ." [FN187]
"Subject only to narrow and well-understood exceptions, [the First Amendment]
does not countenance governmental control over the content of messages expressed
by private individuals." [FN188]
In consequence, content based restrictions on speech are permissible only if
they serve compelling state interests by the least restrictive means available.
[FN189]
[**86] Content neutral restrictions, in contrast, are
measured against a less exacting standard. Because restrictions of this type are
not motivated by a desire to limit the message, they will be upheld if they
serve a substantial governmental interest [*328] and restrict First Amendment
freedoms no more than necessary. [FN190]
Restrictions on the
nonspeech elements of expressive conduct fall into the conduct-neutral category.
The Supreme Court long has distinguished for First Amendment purposes between
pure speech, which ordinarily receives the highest level of protection, and
expressive conduct. [FN191]
Even if conduct contains an expressive element, its nonspeech aspect need not be
ignored. [FN192]
"When 'speech' and 'nonspeech' elements are combined in the same course of
conduct, a sufficiently important governmental interest in regulating the
nonspeech [**87] element can justify incidental limitations on First Amendment
freedoms." [FN193]
The critical point is that nonspeech elements may create hazards for society
above and beyond the speech elements. They are subject to regulation in
appropriate circumstances because the government has an interest in dealing with
the potential hazards of the nonspeech elements despite the fact that they are
joined with expressive elements.
Thus, the starting point for analysis is
whether the DMCA, as applied to restrict dissemination of DeCSS and other
computer code used to circumvent access control measures, is a content based
restriction on speech or a content neutral regulation. Put another way, the
question is the level of review that governs the DMCA's anti-trafficking
provision as applied to DeCSS--the strict scrutiny standard applicable to
content based regulations or the intermediate level applicable to content
neutral regulations, including regulations of the nonspeech elements of
expressive conduct.
Given the fact that
DeCSS code is expressive, defendants would have the Court leap immediately to
the conclusion that Section 1201(a)(2)'s prohibition on providing DeCSS
necessarily is content based regulation of speech because it suppresses
dissemination of a particular kind of expression. [FN194]
But this would be a unidimensional approach to a more textured reality and
entirely too facile.
[**89] The "principal inquiry in determining content
neutrality . . . is whether the government has adopted a regulation of speech
because of [agreement or] disagreement with the message it conveys." [FN195]
The computer code at issue in this case, however, does more than express the
programmers' concepts. It does more, in other words, than convey a message.
DeCSS, like any other computer program, is a series of instructions that causes
a computer to perform a particular sequence [*329] of tasks which, in the
aggregate, decrypt CSS-protected files. Thus, it has a distinctly functional,
non-speech aspect in addition to reflecting the thoughts of the programmers. It
enables anyone who receives it and who has a modicum of computer skills to
circumvent plaintiffs' access control system.
[**90] The reason that Congress enacted the
anti-trafficking provision of the DMCA had nothing to do with suppressing
particular ideas of computer programmers and everything to do with
functionality--with preventing people from circumventing technological access
control measures--just as laws prohibiting the possession of burglar tools have
nothing to do with preventing people from expressing themselves by accumulating
what to them may be attractive assortments of implements and everything to do
with preventing burglaries. Rather, it is focused squarely upon the effect of
the distribution of the functional capability that the code provides. Any impact
on the dissemination of programmers' ideas is purely incidental to the
overriding concerns of promoting the distribution of copyrighted works in
digital form while at the same time protecting those works from piracy and other
violations of the exclusive rights of copyright holders. [FN196]
[**91] These
considerations suggest that the DMCA as applied here is content neutral, a view
that draws support also from City of Renton v. Playtime Theatres, Inc. [FN197]
The Supreme Court there upheld against a First Amendment challenge a zoning
ordinance that prohibited adult movie theaters within 1,000 feet of a
residential, church or park zone or within one mile of a school. Recognizing
that the ordinance did "not appear to fit neatly into either the 'content
based-or the 'content-neutral' category," it found dispositive the fact that the
ordinance was justified without reference to the content of the regulated speech
in that the concern of the municipality had been with the secondary effects of
the presence of adult theaters, not with the particular content of the speech
that takes place in them. [FN198]
As Congress' concerns in enacting the anti-trafficking provision of the DMCA
were to suppress copyright piracy and infringement and to promote the
availability of copyrighted works in digital form, and not to regulate the
expression of ideas that might be inherent in particular anti-circumvention
devices or technology, this provision of the statute properly is viewed as
content neutral. [**92] [FN199]
Congress is not powerless to regulate
content neutral regulations that incidentally affect expression, including the
dissemination of the functional capabilities of computer code. A sufficiently
important governmental interest in seeing to it that computers are not
instructed to perform particular functions may justify incidental restrictions
on the dissemination of the expressive elements of a program. Such a regulation
will be upheld if:
[**94] The anti-trafficking provision of the DMCA furthers
an important governmental interest--the protection of copyrighted works stored
on digital media from the vastly expanded risk of piracy in this electronic age.
The substantiality of that interest is evident both from the fact that the
Constitution specifically empowers Congress to provide for copyright protection
[FN203]
and from the significance to our economy of trade in copyrighted materials. [FN204]
Indeed, the Supreme Court has made clear that copyright p5rotection itself is
"the engine of free expression." [FN205]
That substantial interest, moreover, is unrelated to the suppression of
particular views expressed in means of gaining access to protected copyrighted
works. Nor is the incidental restraint on protected expression--the prohibition
of trafficking in means that would circumvent controls limiting access to
unprotected materials or to copyrighted materials for noninfringing
purposes--broader than is necessary to accomplish Congress' goals of preventing
infringement and promoting the availability of content in digital form. [FN206]
This analysis finds
substantial support in the principal case relied upon by defendants, Junger v.
Daley. [FN207]
The plaintiff in that case challenged on First Amendment grounds an Export
Administration regulation that barred the export of computer encryption
software, [**96] arguing that the software was expressive and that the
regulation therefore was unconstitutional. The Sixth Circuit acknowledged the
expressive nature of computer code, holding that it therefore was within the
scope of the First Amendment. But it recognized also that computer code is
functional as well and said that "the functional capabilities of source code,
particularly those of encryption source code, should be considered when
analyzing the governmental interest in regulating the exchange of this form of
speech." [FN208]
Indeed, it went on to indicate that the pertinent standard of review was that
established in United States v. O'Brien, [FN209]
the seminal speech-versus-conduct [*331] decision. Thus, rather than holding the
challenged regulation unconstitutional on the theory that the expressive aspect
of source code immunized it from regulation, the court remanded the case to the
district court to determine whether the O'Brien standard was met in view of the
functional aspect of code. [FN210]
Notwithstanding its
adoption by the Sixth Circuit, the 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 computer 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. [FN211]
[**98] The characterization of functionality as a proxy for the
consequences of use is accurate. But the assumption that the chain of causation
is too attenuated to justify the use of functionality to determine the level of
scrutiny, at least in this context, is not.
Society increasingly depends upon
technological 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 opportunity,
will bypass those security measures, some for the sheer joy of doing it, some
for innocuous reasons, and others for more malevolent purposes. 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
infringement could be dealt with quite adequately by focusing on the infringing
act. If someone wished to make and sell high quality but unauthorized copies of
a copyrighted book, for example, the infringer needed a printing press. [**99]
The copyright holder, once aware of the appearance of infringing copies, usually
was able to trace the copies up the chain of distribution, find and prosecute
the infringer, and shut off the infringement at the source.
In
principle, the digital world is very different. Once a decryption program like
DeCSS is written, it quickly can be sent all over the world. Every recipient is
capable not only of decrypting and perfectly copying plaintiffs' copyrighted
DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every
recipient to do the same. They likewise are capable of transmitting perfect
copies of the decrypted DVD. The process potentially is exponential rather than
linear. Indeed, the difference is illustrated by comparison of two
epidemiological models describing the spread of different kinds of disease. [FN212]
In a common source epidemic, as where members of a population contract a
non-contagious disease from a poisoned well, the disease spreads only by
exposure to the common source. If one eliminates the source, or closes the
contaminated well, the epidemic is stopped. In a propagated [*332] outbreak
epidemic, on the other hand, the disease spreads from person to person. [**100]
Hence, finding the initial source of infection accomplishes little, as the
disease continues to spread even if the initial source is eliminated. [FN213]
For obvious reasons, then, a propagated outbreak epidemic, all other things
being equal, can be far more difficult to control.
This disease metaphor
is helpful here. The book infringement hypothetical is analogous to a common
source outbreak epidemic. Shut down the printing [**101] press (the poisoned
well) and one ends the infringement (the disease outbreak). The spread of means
of circumventing access to copyrighted works in digital form, however, is
analogous to a propagated outbreak epidemic. Finding the original source of
infection (e.g., the author of DeCSS or the first person to misuse it)
accomplishes nothing, as the disease (infringement made possible by DeCSS and
the resulting availability of decrypted DVDs) may continue to spread from one
person who gains access to the circumvention program or decrypted DVD to
another. And each is "infected," i.e., each is as capable of making perfect
copies of the digital file containing the copyrighted work as the author of the
program or the first person to use it for improper purposes. The disease
metaphor breaks down principally at the final point. Individuals infected with a
real disease become sick, usually are driven by obvious self-interest to seek
medical attention, and are cured of the disease if medical science is capable of
doing so. Individuals infected with the "disease" of capability of circumventing
measures controlling access to copyrighted works in digital form, however, do
not suffer from having [**102] that ability. They cannot be relied upon to
identify themselves to those seeking to control the "disease." And their
self-interest will motivate some to misuse the capability, a misuse that, in
practical terms, often will be untraceable. [FN214]
These considerations
drastically alter consideration of the causal link between dissemination of
computer programs such as this and their illicit use. Causation in the law
[**103] ultimately involves practical policy judgments. [FN215]
Here, dissemination itself carries very substantial 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 circumvention computer programs and their improper
use is more than sufficiently close to warrant selection of a level of
constitutional scrutiny based on the programs' functionality.
Accordingly, this Court holds that the anti-trafficking provision of the DMCA as
applied to the posting of computer code that circumvents measures that control
access to copyrighted works in digital form is a valid exercise of Congress'
authority. It is a content neutral regulation in furtherance of important
governmental [**104] interests that does not unduly restrict expressive
activities. In any case, its particular functional characteristics are such that
the Court would apply the same level of scrutiny [*333] even if it were viewed
as content based. [FN216]
Yet it is important to emphasize that this is a very narrow holding. The
restriction the Court here upholds, notwithstanding that computer code is within
the area of First Amendment concern, is limited (1) to programs that circumvent
access controls to copyrighted works in digital form in circumstances in which
(2) there is no other practical means of preventing infringement through use of
the programs, and (3) the regulation is motivated by a desire to prevent
performance of the function for which the programs exist rather than any message
they might convey. One readily might imagine other circumstances in which a
governmental attempt to regulate the dissemination of computer code would not
similarly be justified. [FN217]
Defendants argue also that injunctive
relief against dissemination of DeCSS is barred by the prior restraint doctrine.
The Court disagrees.
Few phrases are as firmly
rooted in our constitutional jurisprudence as the maxim that "any system of
prior restraints of expression comes to [a] Court bearing a heavy presumption
against its constitutional validity." [FN218]
Yet there is a significant gap [**106] between the rhetoric and the reality.
Courts often have upheld restrictions on expression that many would describe as
prior restraints, [FN219]
sometimes by [*334] characterizing the expression as unprotected [FN220]
and on other occasions finding the restraint justified despite its presumed
invalidity. [FN221]
Moreover, the prior restraint doctrine, which has expanded far beyond the
Blackstonian model [FN222]
that doubtless informed the understanding of the Framers of the First Amendment,
[FN223]
has been criticized as filled with "doctrinal ambiguities and inconsistencies
resulting from the absence of any detailed judicial analysis of [its] true
rationale" [FN224]
and, in one case, even as "fundamentally unintelligible." [FN225]
Nevertheless, the doctrine has a well established core: administrative
preclearance requirements for and at least preliminary injunctions against
speech as conventionally understood are presumptively unconstitutional. Yet that
proposition does not dispose of this case. [FN226]
The classic prior restraint
cases were dramatically different from this one. Near v. Minnesota [FN227]
involved a state procedure for abating scandalous and defamatory newspapers as
public nuisances. New York Times Co. v. United States [FN228]
dealt with an attempt to enjoin a newspaper from publishing [**110] an internal
government history of the Vietnam War. Nebraska Press Association v. Stuart [FN229]
concerned a court order barring the reporting of certain details about a
forthcoming murder case. In each case, therefore, the government sought to
suppress speech at the very heart of First Amendment concern--expression about
public issues of the sort [*335] that is indispensable to self government. And
while the prior restraint doctrine has been applied well beyond the sphere of
political expression, we deal here with something new altogether--computer code,
a fundamentally utilitarian construct, albeit one that embodies an expressive
element. Hence, it would be a mistake simply to permit its expressive element to
drive a characterization of the code as speech no different from the Pentagon
Papers, the publication of a newspaper, or the exhibition of a motion picture
and then to apply prior restraint rhetoric without a more nuanced consideration
of the competing concerns.
[**111] In this case, the considerations supporting
an injunction are very substantial indeed. Copyright and, more broadly,
intellectual property piracy are endemic, as Congress repeatedly has found. [FN230]
The interest served by prohibiting means that facilitate such piracy--the
protection of the monopoly granted to copyright owners by the Copyright Act--is
of constitutional dimension. There is little room for doubting that broad
dissemination of DeCSS threatens ultimately to injure or destroy plaintiffs'
ability to distribute their copyrighted products on DVDs and, for that matter,
undermine their ability to sell their products to the home video market in other
forms. The potential damages probably are incalculable, and these defendants
surely would be in no position to compensate plaintiffs for them if plaintiffs
were remitted only to post hoc damage suits.
[**112] On the other side of the coin, the First
Amendment interests served by the dissemination of DeCSS on the merits are
minimal. The presence of some expressive content in the code should not obscure
the fact of its predominant functional character--it is first and foremost a
means of causing a machine with which it is used to perform particular tasks.
Hence, those of the traditional rationales for the prior restraint doctrine that
relate to inhibiting the transmission and receipt of ideas are of attenuated
relevance here. Indeed, even academic commentators who take the extreme position
that most injunctions in intellectual property cases are unconstitutional prior
restraints concede that there is no First Amendment obstacle to injunctions
barring distribution of copyrighted computer object code or restraining the
construction of a new building based on copyrighted architectural drawings
because the functional aspects of these types of information are "sufficiently
nonexpressive." [FN231]
[**113] To be sure, there is much
to be said in most circumstances for the usual procedural rationale for the
prior restraint doctrine: prior restraints carry with them the risk of
erroneously suppressing expression that could not constitutionally be punished
[*336] after publication. [FN232]
In this context, however, that concern is not persuasive, both because the
enjoined expressive element is minimal and because a full trial on the merits
has been held. [FN233]
Accordingly, the Court holds that the prior restraint doctrine does not require
denial of an injunction in this case.
[**114] 3.
Overbreadth
Defendants' second focus is the contention that Section 1201(a)(2) is
unconstitutional because it prevents others from making fair use of copyrighted
works by depriving them of the means of circumventing plaintiffs' access control
system. [FN234]
In substance, they contend that the anti-trafficking provision leaves those who
lack sufficient technical expertise to circumvent CSS themselves without the
means of acquiring circumvention technology that they need to make fair use of
the content of plaintiffs' copyrighted DVDs. [FN235]
[**115] As a general proposition, "a
person to whom a statute constitutionally may be applied may not challenge that
statute on the ground that it conceivably may be applied unconstitutionally to
others in situations not before the Court." [FN236]
When statutes regulate speech, however, "the transcendent value to all society
of constitutionally protected expression is deemed to justify 'attacks on overly
broad statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with the
requisite narrow specificity.'" [FN237]
This is so because the absent third parties may not exercise their rights for
fear of triggering "sanctions provided by a statute susceptible of application
to protected expression." [FN238]
But the overbreadth doctrine "'is 'strong medicine' . . . . employed . . . with
hesitation, and then 'only as a last resort''" because it conflicts with "the
personal nature of constitutional rights and the prudential limitations on
constitutional adjudication," including the importance of focusing carefully on
the facts in deciding constitutional questions. [FN239]
Moreover, the limited function of the overbreadth doctrine [**116] "'attenuates
as the otherwise unprotected behavior that it forbids the State to sanction
moves from 'pure speech' toward conduct and that conduct--even if
expressive--falls within the scope of otherwise valid criminal [*337] laws . . .
.'" [FN240]
As defendants concede, "where conduct and not merely speech is involved, . . .
the overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep." [FN241]
Factors arguing against use of the
overbreadth doctrine are present here. To begin with, we do not here have a
complete view of whether the interests of the absent third parties upon whom
defendants rely really are substantial and, in consequence, whether the DMCA as
applied here would materially affect their ability to make fair use of
plaintiffs' copyrighted works.
The copyrighted works at issue, of
course, are motion pictures. People use copies of them in DVD and other formats
for various purposes, and we confine our consideration to the lawful purposes,
which by definition are noninfringing or fair uses. The principal noninfringing
use is to play the DVD for the purpose of watching the movie--viewing the images
and hearing the sounds that are synchronized with them. Fair uses are much more
varied. A movie reviewer might wish to quote a portion of the verbal script in
an article or broadcast review. A television station might want to broadcast
part of a particular scene to illustrate a review, a news story about a
performer, or a story about [**118] particular trends in motion pictures. A
musicologist perhaps would wish to play a portion of a musical sound track. A
film scholar might desire to create and exhibit to students small segments of
several different films to make some comparative point about the cinematography
or some other characteristic. Numerous other examples doubtless could be
imagined. But each necessarily involves one or more of three types of use: (1)
quotation of the words of the script, (2) listening to the recorded sound track,
including both verbal and non-verbal elements, and (3) viewing of the graphic
images.
All
three of these types of use now are affected by the anti-trafficking provision
of the DMCA, but probably only to a trivial degree. To begin with, all or
substantially all motion pictures available on DVD are available also on
videotape. [FN242]
In consequence, anyone wishing to make lawful use of a particular movie may buy
or rent a videotape, play it, and even copy all or part of it with readily
available equipment. But even if movies were available only on DVD, as someday
may be the case, the impact on lawful use would be limited. Compliant DVD
players permit one to view or listen to a DVD movie [**119] without
circumventing CSS in any prohibited sense. The technology permitting manufacture
of compliant DVD players is available to anyone on a royalty-free basis and at
modest cost, so CSS raises no technological barrier to their manufacture. Hence,
those wishing to make lawful use of copyrighted movies by viewing or listening
to them are not hindered in doing so in any material way by the anti-trafficking
provision of the DMCA. [FN243]
[**120] [*338] Nor does the DMCA materially affect quotation of language from
CSS-protected movies. Anyone with access to a compliant DVD player may play the
movie and write down or otherwise record the sound for the purpose of quoting it
in another medium.
The
DMCA does have a notable potential impact on uses that copy portions of a DVD
movie because compliant DVD players are designed so as to prevent copying. In
consequence, even though the fair use doctrine permits limited copying of
copyrighted works in appropriate circumstances, the CSS encryption of DVD
movies, coupled with the characteristics of licensed DVD players, limits such
uses absent circumvention of CSS. [FN244]
Moreover, the anti-trafficking provision of the DMCA may prevent technologically
unsophisticated persons who wish to copy portions of DVD movies for fair use
from obtaining the means of doing so. It is the interests of these individuals
upon which defendants rely most heavily in contending that the DMCA violates the
First Amendment because it deprives such persons of an asserted constitutional
right to make fair use of copyrighted materials. [FN245]
As the foregoing
suggests, the interests of persons wishing to circumvent CSS in order to make
lawful use of the copyrighted movies it protects are remarkably varied. Some
presumably are technologically sophisticated and therefore capable of
circumventing CSS without access to defendants' or other purveyors' decryption
programs; many presumably are not. Many of the possible fair uses may be made
without circumventing CSS while [**122] others, i.e., those requiring copying,
may not. Hence, the question whether Section 1201(a)(2) as applied here
substantially affects rights, much less constitutionally protected rights, of
members of the "fair use community" cannot be decided in bloc, without
consideration of the circumstances of each member or similarly situated groups
of members. Thus, the prudential concern with ensuring that constitutional
questions be decided only when the facts before the Court so require counsels
against permitting defendants to mount an overbreadth challenge here. [FN246]
[**123] Second, there is no reason to suppose here that prospective
fair users will be deterred from asserting their alleged rights by fear of
sanctions imposed by the DMCA or the Copyright Act.
Third, we do not deal here with "pure
speech." Rather, the issue concerns dissemination of technology that is
principally functional in nature. The same consideration that warrants restraint
in applying the overbreadth doctrine to statutes regulating [*339] expressive
conduct applies here. For reasons previously expressed, government's interest in
regulating the functional capabilities of computer code is no less weighty than
its interest in regulating the nonspeech aspects of expressive conduct.
Finally, there has
been no persuasive evidence that the interests of persons who wish access to the
CSS algorithm in order to study its encryption methodology or to evaluate
theories regarding decryption raise serious problems. The statute contains an
exception for good faith encryption research. [FN247]
[**124] Accordingly, defendants will not be heard to mount an
overbreadth challenge to the DMCA in this context.
Defendants argue also
that the DMCA is unconstitutionally vague because the terms it employs are not
understandable to persons of ordinary intelligence and because they are subject
to discriminatory enforcement. [FN248]
As
the Supreme Court has made clear, one who "engages in some conduct that is
clearly proscribed [by the challenged statute] cannot complain of the vagueness
of the law as applied to the conduct of others." [FN249]
There can be no serious doubt that posting a computer program the sole purpose
of which is to defeat an encryption system controlling access to plaintiff's
copyrighted movies constituted an "offer to the public" of "technology [or a]
product" that was "primarily designed for the purpose of circumventing"
plaintiffs' access control system. [FN250]
Defendants thus engaged in conduct clearly proscribed by the DMCA and will not
be heard [**125] to complain of any vagueness as applied to others.
As indicated above, the DMCA reaches
links deliberately created by a web site operator for the purpose of
disseminating technology that enables the user to circumvent access controls on
copyrighted works. The question is whether it may do so consistent with the
First Amendment.
Links bear a relationship to the
information superhighway comparable to the relationship that roadway signs bear
to roads but they are more functional. Like roadway signs, they point out the
direction. Unlike roadway signs, they take one almost instantaneously to the
desired destination with the mere click of an electronic mouse. Thus, like
computer code in general, they have both expressive and functional elements.
Also like computer code, they are within the area of First Amendment [**126]
concern. Hence, the constitutionality of the DMCA as applied to defendants'
linking is determined by the same O'Brien standard that governs trafficking in
the circumvention technology generally.
There is little
question that the application of the DMCA to the linking at issue in this case
would serve, at least to some extent, the same substantial governmental interest
as its application to defendants' posting of the DeCSS code. Defendants' posting
and their linking amount to very much the same thing. Similarly, the regulation
of the linking at issue here is "unrelated to the suppression of free
expression" for the same reason as the regulation of the posting. The third
prong of the O'Brien test as subsequently interpreted--whether the "regulation
promotes a substantial government interest that would be achieved less
effectively absent the regulation" [FN251]
--is a somewhat closer call.
[**127] [*340] Defendants and, by logical extension, others may be enjoined
from posting DeCSS. Plaintiffs may seek legal redress against anyone who
persists in posting notwithstanding this decision. Hence, barring defendants
from linking to sites against which plaintiffs readily may take legal action
would advance the statutory purpose of preventing dissemination of circumvention
technology, but it would do so less effectively than would actions by plaintiffs
directly against the sites that post. For precisely this reason, however, the
real significance of an anti-linking injunction would not be with U.S. web sites
subject to the DMCA, but with foreign sites that arguably are not subject to it
and not subject to suit here. An anti-linking injunction to that extent would
have a significant impact and thus materially advance a substantial governmental
purpose. In consequence, the Court concludes that an injunction against linking
to other sites posting DeCSS satisfies the O'Brien standard. There remains,
however, one further important point.
Links are "what unify the
[World Wide] Web into a single body of knowledge, and what makes the Web
unique." [FN252]
They "are the mainstay of the Internet [**128] and indispensable to its
convenient access to the vast world of information." [FN253]
They often are used in ways that do a great deal to promote the free exchange of
ideas and information that is a central value of our nation. Anything that would
impose strict liability on a web site operator for the entire contents of any
web site to which the operator linked therefore would raise grave constitutional
concerns, as web site operators would be inhibited from linking for fear of
exposure to liability. [FN254]
And it is equally clear that exposing those who use links to liability under the
DMCA might chill their use, as some web site operators confronted with claims
that they have posted circumvention technology falling within the statute may be
more inclined to remove the allegedly offending link rather than test the issue
in court. Moreover, web sites often contain a great variety of things, and a ban
on linking to a site that contains DeCSS amidst other content threatens to
restrict communication of this information to an excessive degree.
The possible chilling effect of a rule
permitting liability for or injunctions against Internet hyperlinks is a genuine
concern. But it is not unique to the issue of linking. The constitutional law of
defamation provides a highly relevant analogy. The threat of defamation suits
creates the same risk of self-censorship, the same chilling effect, for the
traditional press as a prohibition of linking to sites containing circumvention
technology poses for web site operators. Just as the potential chilling effect
of defamation suits has not utterly immunized the press from all actions for
defamation, however, the potential chilling effect of DMCA liability cannot
utterly immunize web site operators from all actions for disseminating
circumvention technology. And the solution to the problem is the same: the
adoption of a standard of culpability sufficiently high to immunize [**130] the
activity, whether it is publishing a newspaper or linking, except in cases in
which the conduct in question has little or no redeeming constitutional value.
In
the defamation area, this has been accomplished by a two-tiered constitutional
standard. There may be no liability under the First Amendment for defamation of
a public official or a public figure unless the plaintiff proves, by clear and
convincing evidence, that the defendant published the offending statement with
knowledge of its [*341] falsity or with serious doubt as to its truth. [FN255]
Liability in private figure cases, on the other hand, may not be imposed absent
proof at least of negligence under Gertz v. Robert Welch, Inc. [FN256]
A similar approach would minimize any chilling effect here.
[**131] The other concern--that a liability based on a link to another
site simply because the other site happened to contain DeCSS or some other
circumvention technology in the midst of other perfectly appropriate content
could be overkill--also is readily dealt with. The offense under the DMCA is
offering, providing or otherwise trafficking in circumvention technology. An
essential ingredient, as explained above, is a desire to bring about the
dissemination. Hence, a strong requirement of that forbidden purpose is an
essential prerequisite to any liability for linking.
Accordingly, there may
be no injunction against, nor liability for, linking to a site containing
circumvention technology, the offering of which is unlawful under the DMCA,
absent clear and convincing evidence that those responsible for the link (a)
know at the relevant time that the offending material is on the linked-to site,
(b) know that it is circumvention technology that may not lawfully be offered,
and (c) create or maintain the link for the purpose of disseminating that
technology. [FN257]
Such a standard will limit the fear of liability on the part of web site
operators just as the New York Times standard gives [**132] the press great
comfort in publishing all sorts of material that would have been actionable at
common law, even in the face of flat denials by the subjects of their stories.
And it will not subject web site operators to liability for linking to a site
containing proscribed technology where the link exists for purposes other than
dissemination of that technology.
In this case,
plaintiffs have established by clear and convincing evidence that these
defendants linked to sites posting DeCSS, [**133] knowing that it was a
circumvention device. Indeed, they initially touted it as a way to get free
movies, [FN258]
and they later maintained the links to promote the dissemination of the program
in an effort to defeat effective judicial relief. They now know that
dissemination of DeCSS violates the DMCA. An anti-linking injunction on these
facts does no violence to the First Amendment. Nor should it chill the
activities of web site operators dealing with different materials, as they may
be held liable only on a compelling showing of deliberate evasion of the
statute.
The DMCA provides that
"any person injured by a violation of section 1201 or 1202 may bring a civil
action in an appropriate United States court for such violation." [FN259]
For the reasons set forth above, plaintiffs obviously have suffered and, absent
effective relief, will continue to suffer injury by virtue of the ready
availability of means of circumventing the CSS access control [**134] system on
their DVDs. Defendants nevertheless argue that they have [*342] not met the
injury requirement of the statute. Their contentions are a farrago of
distortions.
They
begin with the assertion that plaintiffs have failed to prove that decrypted
motion pictures actually are available. [FN260]
To be sure, plaintiffs might have done a better job of proving what appears to
be reasonably obvious. They certainly could have followed up on more of the 650
movie titles listed on the web site described above to establish that the titles
in fact were available. But the evidence they did adduce is not nearly as meager
as defendants would have it. Dr. Shamos did pursue and obtain a pirated copy of
a copyrighted, DivX'd motion picture from someone he met in an Internet chat
room. An MPAA investigator downloaded between five and ten such copies. And the
sudden appearance of listings of available motion pictures on the Internet
promptly after DeCSS became available is far from lacking [**135] in evidentiary
significance. In any case, in order to obtain the relief sought here, plaintiffs
need show only a threat of injury by reason of a violation of the statute. [FN261]
The Court finds that plaintiffs overwhelmingly have established a clear threat
of injury by reason of defendants' violation of the statute.
Defendants next maintain
that plaintiffs exaggerate the extent of the threatened injury. They claim that
the studios in fact believe that DeCSS is not a threat. [FN262]
But the only basis for that contention is a couple of quotations from statements
that the MPAA or one or another studio made (or considered making but did not in
fact issue) to the effect that it was not concerned about DeCSS or that it was
inconvenient to use. [FN263]
These statements, however, were [**136] attempts to "spin" public opinion. [FN264]
They do not now reflect the actual state of affairs or the studios' actual
views, if they ever did.
Third, defendants contend
that there is no evidence that any decrypted movies that may be available, if
any there are, were decrypted with DeCSS. They maintain that "many utilities and
devices . . . can decrypt DVDs equally well and often faster and with greater
ease than by using DeCSS." [FN265]
This is a substantial exaggeration. There appear to be a few other so-called
rippers, but the Court finds that DeCSS is usable on a broader range of DVDs
than any of the others. Further, there is no credible evidence that any other
utility is faster or easier to use than DeCSS. Indeed, the Court concludes that
DeCSS is the superior product, as evidenced by the fact that the web site
promoting DivX as a tool for obtaining usable copies of copyrighted movies
recommends [**137] the use of DeCSS, rather than anything else, for the
decryption step [FN266]
and that the apparent availability of pirated motion pictures shot up so
dramatically upon the introduction of DeCSS. [FN267]
[**138] [*343] B.
Permanent Injunction and Declaratory Relief
Plaintiffs seek a permanent injunction
barring defendants from posting DeCSS on their web site and from linking their
site to others that make DeCSS available.
The starting point, as
always, is the statute. The DMCA provides in relevant part that the court in an
action brought pursuant to its terms "may grant temporary and permanent
injunctions on such terms as it deems reasonable to prevent or restrain a
violation . . . ." [FN268]
Where statutes in substance so provide, injunctive relief is appropriate if
there is a reasonable likelihood of future violations absent such relief [FN269]
and, in cases brought by private plaintiffs, if the plaintiff lacks an adequate
remedy at law. [FN270]
In this case, it is quite likely that
defendants, unless enjoined, will continue to violate the Act. Defendants are in
the business of disseminating information to assist hackers in "cracking"
various types of technological security systems. And while defendants argue that
they promptly stopped posting DeCSS when enjoined preliminarily from doing so,
thus allegedly demonstrating their willingness to comply with the law, their
reaction to the preliminary injunction in fact cuts the other way. Upon being
enjoined from posting DeCSS themselves, defendants encouraged others to "mirror"
the information--that is, to post DeCSS--and linked their own web site to mirror
sites in order to assist users of defendants' web site in obtaining DeCSS
despite [**140] the injunction barring defendants from providing it directly.
While there is no claim that this activity violated the letter of the
preliminary injunction, and it therefore presumably was not contumacious, and
while its status under the DMCA was somewhat uncertain, it was a studied effort
to defeat the purpose of the preliminary injunction. In consequence, the Court
finds that there is a substantial likelihood of future violations absent
injunctive relief.
There also is little doubt that plaintiffs have no adequate remedy at law. The
only potential legal remedy would be an action for damages under Section
1203(c), which provides for recovery of actual damages or, upon the election of
the plaintiff, statutory damages of up to $ 2,500 per offer of DeCSS. Proof of
actual damages in a case of this nature would be difficult if not [*344]
virtually impossible, as it would involve proof of the extent to which motion
picture attendance, sales of broadcast and other motion picture rights, and
sales and rentals of DVDs and video tapes of movies were and will be impacted by
the availability of DVD decryption technology. Difficulties in determining what
constitutes an "offer" of DeCSS in a world in [**141] which the code is
available to much of the world via Internet postings, among other problems,
render statutory damages an inadequate means of redressing plaintiffs' claimed
injuries. Indeed, difficulties such as this have led to the presumption that
copyright and trademark infringement cause irreparable injury, [FN271]
i.e., injury for which damages are not an adequate remedy. [FN272]
The Court therefore holds that the traditional requirements for issuance of a
permanent injunction have been satisfied. Yet there remains another point for
consideration.
[**142] Defendants argue that an injunction in this case would be
futile because DeCSS already is all over the Internet. They say an injunction
would be comparable to locking the barn door after the horse is gone. And the
Court has been troubled by that possibility. But the countervailing arguments
overcome that concern.
To begin with, any such conclusion
effectively would create all the wrong incentives by allowing defendants to
continue violating the DMCA simply because others, many doubtless at defendants'
urging, are doing so as well. Were that the law, defendants confronted with the
possibility of injunctive relief would be well advised to ensure that others
engage in the same unlawful conduct in order to set up the argument that an
injunction against the defendants would be futile because everyone else is doing
the same thing.
Second, and closely
related, is the fact that this Court is sorely "troubled by the notion that any
Internet user . . . can destroy valuable intellectual property rights by posting
them over the Internet." [FN273]
While equity surely should not act where the controversy has become moot, it
ought to look very skeptically at claims that the defendant or others already
[**143] have done all the harm that might be done before the injunction issues.
The key to reconciling these views is
that the focus of injunctive relief is on the defendants before the Court. If a
plaintiff seeks to enjoin a defendant from burning a pasture, it is no answer
that there is a wild fire burning in its direction. If the defendant itself
threatens the plaintiff with irreparable harm, then equity will enjoin the
defendant from carrying out the threat even if other threats abound and even if
part of the pasture already is burned.
These defendants would harm plaintiffs every day on which they post DeCSS on
their heavily trafficked web site and link to other sites that post it because
someone who does not have DeCSS thereby might obtain it. They thus threaten
plaintiffs with immediate and irreparable injury. They will not be allowed to
continue to do so simply because others may do so as [**144] well. In short,
this Court, like others than have faced the issued, is "not persuaded that
modern technology has withered the strong right arm of equity." [FN274]
Indeed, [*345] the likelihood is 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.
Appropriate injunctive [FN275]
and declaratory relief will issue simultaneously with this opinion.
[**145] V.
Miscellaneous Contentions
There remain for consideration two other
matters, plaintiffs' application for costs and attorney's fees and defendants'
pretrial complaints concerning discovery.
The DMCA permits
awards of costs and attorney's fees to the prevailing party in the discretion of
the Court. [FN276]
Insofar as attorney's fees are concerned, this is an exception to the so-called
"American rule" pursuant to which each side in a litigation customarily bears
its own attorney's fees. As this was a test case raising important issues, it
would be inappropriate to award attorney's fees pursuant to the DMCA. [FN277]
There is no comparable reason, however, for failing to award costs, particularly
as taxable costs are related to the excessive discovery demands that the Court
already has commented upon. [FN278]
[**146] A final word is in order in view of
defendants' repeated pretrial claims that their discovery efforts were being
thwarted. During the course of the trial, they applied for leave to take one
deposition, which was granted. At no point did they make any showing that they
were hampered in presenting their case or meeting the plaintiffs' case by virtue
of any failure to obtain discovery. They applied for no continuance. They have
not sought a new trial. And though they estimated that their case would take
several weeks to present, the entire trial was completed in six days. Indeed, in
the Court's view, the trial fully vindicated its pretrial assessment that there
were, in actuality, very few genuinely disputed questions of material fact, and
most of those involved expert testimony that was readily available to both
sides. [FN279]
Examination of the trial record will reveal that virtually the entire case could
have been stipulated, although the legal conclusions to be drawn from the
stipulated facts of course would have remained a matter of controversy.
[**147] VI.
Conclusion
In the final analysis, the dispute
between these parties is simply put if not necessarily simply resolved.
[*346] Plaintiffs have invested huge sums over the years in producing
motion pictures in reliance upon a legal framework that, through the law of
copyright, has ensured that they will have the exclusive right to copy and
distribute those motion pictures for economic gain. They contend that the advent
of new technology should not alter this long established structure.
Defendants, on the other hand, are
adherents of a movement that believes that information should be available
without charge to anyone clever enough to break into the computer systems or
data storage media in which it is located. Less radically, they have raised a
legitimate concern about the possible impact on traditional fair use of access
control measures in the digital era.
Each side is entitled to its views. In
our society, however, clashes of competing interests like this are resolved by
Congress. For now, at least, Congress has resolved this clash in the DMCA and in
plaintiffs' favor. Given the peculiar characteristics of computer programs for
circumventing encryption and other access control [**148] measures, the DMCA as
applied to posting and linking here does not contravene the First Amendment.
Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory
relief.
SO ORDERED.
FN1.
17 U.S.C. § 1201 et seq.
FN2.
Shortly after the commencement of the action, the Court granted plaintiffs'
motion for a preliminary injunction barring defendants from posting DeCSS.
Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000).
Subsequent motions to expand the preliminary injunction to linking and to vacate
it were consolidated with the trial on the merits. This opinion reflects the
Court's findings of fact, conclusions of law and decision on the merits.
The Court notes the receipt of a number
of amicus submissions. Although many were filed by defendants' counsel on behalf
of certain amici, and therefore were of debatable objectivity, the amicus
submissions considered as a group were helpful.
FN3.
David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U.
PA. L. REV. 673, 739-41 (2000) (hereinafter A Riff on Fair Use).
FN4.
United States v. Microsoft Corp., 84 F. Supp. 2d 9, 13 (D.D.C. 1999). The
quotations are from a finding of fact in the Microsoft case of which the Court,
after notice to and without objection by the parties, takes judicial notice. Tr.
at 1121. Subsequent references to Microsoft findings reflect similar instances
of judicial notice without objection.
FN5.
United States v. Microsoft Corp., 84 F. Supp. 2d at 13.
FN6.
Open source is a software development model by which the source code to a
computer program is made available publicly under a license that gives users the
right to modify and redistribute the program. The program develops through this
process of modification and redistribution and through a process by which users
download sections of code from a web site, modify that code, upload it to the
same web site, and merge the modified sections into the original code. Trial
transcript ("Tr.") (Craig) at 1008.
FN7.
Tr. (Pavlovich) at 936.
FN8.
Tr. (DiBona) at 994-95.
FN9.
Id.
FN10.
THE NEW YORK PUBLIC LIBRARY, SCIENCE DESK REFERENCE 496 (1995) (hereinafter
SCIENCE DESK REFERENCE); see also Tr. (Felten) at 758-59; Hon. Shira A.
Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil
Litigation: Is Rule 34 Up to the Task? 41 B.C. L. REV. 327, 333-35
(2000).
FN11.
Tr. (Felten) at 759; Scheindlin & Rabkin, 34 B. C. L. REV. at
333-35.
FN12.
SCIENCE DESK REFERENCE, at 501.
FN13.
Id.
FN14.
Id.
FN15.
See Tr. (Felten) at 759-60.
FN16.
The Court's findings with respect to the definitions of source code and object
code are taken from the trial testimony of Robert Schumann, Tr. at 258, and Drs.
Edward Felten, Tr. at 738-39, 757-63, David S. Touretzky, Tr. at 1065-91, and
Andrew Appel, Tr. at 1096, and the deposition testimony of Dr. Harold Abelson,
Ex. AZO at 34-37, 45-49. See also Ex. BBE.
FN17.
Frequently, programs written in such languages must be transformed or translated
into machine readable form by other programs known as compilers.
FN18.
This to some degree is an oversimplification. Object code often is directly
executable by the computer into which it is entered. It sometimes contains
instructions, however, that are readable only by computers containing a
particular processor, such as a Pentium processor, or a specific operating
system such as Microsoft Windows. In such instances, a computer lacking the
specific processor or operating system can execute the object code only if it
has an emulator program that simulates the necessary processor or operating
system or if the code first is run through a translator program that converts it
into object code readable by that computer. Ex. BBE.
FN19.
United States v. Microsoft Corp., 84 F. Supp. 2d at 13.
FN20.
Tr. (Shamos) at 67-68.
FN21.
United States v. Microsoft Corp., 84 F. Supp. 2d at 13.
FN22.
Id. at 14.
FN23.
Id.
FN24.
Id.
FN25.
Not too many years ago, the most common transportable storage media were 5 1/4
inch flexible magnetic disks. Their flexibility led to their being referred to
as "floppies." They have been replaced almost entirely with today's 3 1/2 inch
disks, which are enclosed in hard plastic housings and which therefore are not
flexible or "floppy." The earlier name, however, has stuck.
FN26.
Tr. (King) at 403-04.
FN27.
Tr. (Shamos) at 24.
FN28.
Id. at 24-25.
FN29.
Such devices are referred to subsequently as compliant.
FN30.
Tr. (Shamos) at 25.
FN31.
Tr. (Schumann) at 273.
FN32.
Tr. (Ramadge) at 911.
FN33.
Id. at 911-12.
FN34.
Ex. 2.1-2.34; 3.1-3.34.
FN35.
Tr. (King) at 404.
FN36.
Tr. (Corley) at 787, 827.
FN37.
Tr. (Corley) at 777, 790, 795; Ex. 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.11,
1.12, 1.13, 1.14, 1.15, 1.16; 79 (Corley Dec.) P1.
FN38.
See Tr. (Corley) at 781.
FN39.
Tr. (Corley) 786-87.
FN40.
Id. at 787.
FN41.
Ex. 1.2 (Redomega Crim, How Domains Are Stolen, 2600: THE HACKER QUARTERLY,
Summer 2000, at 43).
FN42.
Ex. 1.16 (Schlork, Snooping via MS-Mail, 2600: THE HACKER QUARTERLY, Winter
1996-97, at 28).
FN43.
Ex. 1.14 (Thomas Icom, Cellular Interception Techniques, 2600: THE HACKER
QUARTERLY, Spring 1995, at 23).
FN44.
Ex. 1.12 (nux, Fun at Costco, 2600: THE HACKER QUARTERLY, Summer 1999, at
12).
FN45.
Ex. 1.19 (PhranSys Drak3, Hacking FedEx, 2600: THE HACKER QUARTERLY, Autumn
1997, at 14).
FN46.
Ex. 1.19 (Agent Steal, Busted! A Complete Guide to Getting Caught, 2600: THE
HACKER QUARTERLY, Autumn 1997, at 6).
FN47.
Tr. (Corley) at 790; Ex. 52-54, 64, 79 (Corley Dec.) P20; 97. Interestingly,
defendants' copyright both their magazine and the material on their web site to
prevent others from copying their works. Tr. (Corley) at 832; Ex. 96 (Corley
Dep.) at 23-24.
FN48.
Tr. (Corley) at 791; Ex. 28.
FN49.
Tr. (Corley) at 791, 829, 848; Ex. 28.
FN50.
Tr. (King) at 402. n5
FN51.
Id. at 404, 468.
FN52.
Id. at 408, 468, 470.
FN53.
Id. at 404-05.
FN54.
Id. at 404-05, 468-70.
FN55.
Id. at 406.
FN56.
Id. at 405-06, 471, 476-78.
FN57.
Id. at 405, 470-71, 479.
FN58.
Id. at 406-07, 502-04.
FN59.
An algorithm is a recipe that contains instructions for completing a task. It
can be expressed in any language, from natural spoken language to computer
programming language. Ex. AZO (Abelson Dep.) at 9-10.
FN60.
The licensing function initially was performed by MEI and Toshiba. Subsequently,
MEI and Toshiba granted a royalty free license to the DVD Copy Control
Association ("DVD CCA"), which now handles the licensing function. Tr. (King) at
485-86, 510; Ex. XXY (Attaway Dep.) at 31. The motion picture companies
themselves license CSS from the DVD CCA. Ex. XYY (Attaway Dep.) at
31-32.
FN61.
See, e.g., Ex. AHV §§ 5, 6.2.
FN62.
Tr. (King) at 450-51, 492-93; Ex. XXY (Attaway Dep.) at 61-62; Ex. AHV.
FN63.
The administrative fee is one million yen, now about $ 9,200, for each
"membership category" selected by the licensee. Twelve membership categories are
available, and one or more are selected by a licensee depending on the use which
the licensee intends to make of the licensed technology. The membership
categories are: content provider, authoring studio, DVD disc replicator, DVD
player manufacturer, DVD-ROM drive manufacturer, DVD decoder manufacturer,
descramble module manufacturer, authentication chip manufacturer for DVD-ROM
drive, authenticator manufacturer for DVD decoder, integrated product
manufacturer, and reseller. Ex. AJB, AIZ, AOV, AOU, AOQ.
FN64.
Tr. (King) at 437-38; see also Tr. (Pavolvich) at 961; Ex. BD.
FN65.
Tr. (King) at 408-09.
FN66.
Id. at 409.
FN67.
Id. at 417-18.
FN68.
Id. at 442.
FN69.
Revenue from the distribution of DVDs makes up approximately 35 percent of
Warner Brothers' total worldwide revenue from movie distribution in the home
video market. Id. at 403.
FN70.
Distribution in the home video market accounts for approximately 40 percent of
Warner Brothers' total income from movie distribution. Id.
FN71.
Tr. (Johansen) at 619-22, 633, 639.
FN72.
Id. at 619-21, 634; (Schumann) at 246-48. Mr. Johansen testified that the "De"
in DeCSS stands for "decrypt." Tr. (Johansen) at 628.
FN73.
Tr. (Johansen) at 622-23, 638; Ex. 9 at SCH-000846. Mr. Johansen did not post
the source code on his Web site. Tr. (Johansen) at 635.
FN74.
Tr. (Johansen) at 620.
FN75.
Id. at 620.
FN76.
Id. at 621-22.
FN77.
Id. at 621-22, 624; (Stevenson) at 214.
FN78.
Tr. (Johansen) at 623.
FN79.
Substantial questions have been raised both at trial and elsewhere as to the
veracity of Mr. Johansen's claim. See Ex. CS, at S10006 ("Our analysis indicates
that the primary technical breakthroughs were developed outside of the Linux
development groups.").
FN80.
Tr. (Johansen) at 626-27.
FN81.
Ex. 97, 107, 126.
FN82.
Tr. (Stevenson) at 217-18, 226-29; (Schumann) at 290, 338-41; (Johansen) at 641;
(Reider) at 681-85. One, DOD (Drink or Die) Speed Ripper, does not work with all
DVDs that DeCSS will decrypt. Id.; Ex. CS, at S10011; Ex. 9. Some of these
programs perform only a portion of what DeCSS does and must be used in
conjunction with others in order to decrypt the contents of a DVD. Tr. (Schuman)
at 290, 338-39. Some of defendants' claims about these other means proved
baseless at trial. See Tr. (Pavlovich) at 965-68.
FN83.
Tr. (Corley) at 791; Ex. 28.
FN84.
Tr. (Corley) at 791, 829, 848; Ex. 28.
FN85.
Tr. (Corley) at 829-30, 845.
FN86.
Id. at 831, 845.
FN87.
Id. at 829-30, 845.
FN88.
Id. at 830; (Shamos) at 38. As Mr. Corley testified, the download process
generally begins with the appearance of a dialog box, or small window, prompting
the user to confirm the location on the user's computer hard drive where the
downloaded software will be stored. The actual download does not begin until the
user provides the computer with this information. Tr. (Corley) at 830. It is
possible also to create a link that commences the download immediately upon
being clicked. See Tr. (Touretzky) at 1082-83.
FN89.
Tr. (Reider) at 652.
FN90.
Tr. (King) at 435, 548; (Reider) at 653; Ex. 55.
FN91.
The other two defendants entered into consent decrees with plaintiffs.
Plaintiffs subsequently amended the complaint to add 2600 Enterprises, Inc. as a
defendant.
FN92.
Preliminary Injunction, Jan. 20, 2000 (DI 6); Universal City Studios, Inc., 82
F. Supp. 2d 211.
FN93.
Tr., Jan. 20, 2000 (DI 17) at 85.
FN94.
Tr. (Corley) at 791; Ex. 51.
FN95.
Tr. (Corley) at 834; Ex. 96 (Corley Dep.) at 151-53.
FN96.
Tr. (Corley) at 791; Ex. 79 (Corley Dec.) P21; 126.
FN97.
Ex. 106.
FN98.
Tr. (Shamos) at 36-42; (Schumann) at 272-73; 265-66 (defendants' stipulation
that their web site links to other sites containing executable copies of
DeCSS).
FN99.
Tr. (Shamos) at 36-42; (Schumann) at 272-73.
FN100.
Tr. (Shamos) at 39-40; see also Ex. AYZ (Hunt Dep.) at 18.
FN101.
Tr. (Shamos) at 41-42; (Schumann) at 272-73.
FN102.
Tr. (Shamos) at 41-42, 156.
FN103.
Tr. (Schumann) at 273; Ex. AYZ (Hunt Dep.) at 26.
FN104.
Tr. (Johansen) at 628; see also Ex. AZN (Simons Dep.) at 48.
FN105.
Tr. (Shamos) at 42; (Ramadge) at 900.
FN106.
See Tr. (Shamos) at 54-56; Ex. 112-13.
FN107.
DivX effects what is known as "lossy" compression--it achieves its reduction in
file size by eliminating some of the data in the file being compressed. The
trick, however, is that it seeks to do so by eliminating data that is
imperceptible, or nearly so, to the human observer. Tr. (Shamos) at 43-44;
(Ramadge) at 882-98.
FN108.
Tr. (Shamos) at 51.
FN109.
Defendants produced an expert whose DivX of a DeCSS decrypted file was of
noticeably lower quality than that of plaintiffs' expert's DivX'd film. The
reasons for the difference are not clear. The Court is satisfied, however, that
it is possible to make high quality 650 MB DivX'd copies of many films.
FN110.
Tr. (Ramadge) at 930.
FN111.
Tr. (Shamos) at 56-57. The copies do not require resynchronization of the sound
and graphics.
FN112.
Tr. (Shamos) at 95.
FN113.
Tr. (Shamos) at 89-90, 98; (Peterson) at 865; (Pavlovich) at 943.
FN114.
Tr. (Shamos) at 90; (Felten) at 772; (Peterson) at 879.
FN115.
See, e.g., Tr. (Peterson) at 861, 875-76.
FN116.
Id. (Shamos) at 87-88.
FN117.
Id.
FN118.
Id. at 77.
FN119.
It should be noted here that the transmission time achieved by plaintiff's
expert, Dr. Shamos, almost certainly was somewhat skewed because the work was
done late at night on a university system after the close of the regular school
year, conditions favorable to high effective transmission rates due to low
traffic on the system.
FN120.
Tr. (Schumann) at 334-36.
FN121.
Tr. (Shamos) at 68-76.
FN122.
Id. at 76-77.
FN123.
Ex. AYY (Reider Dep.) at 98-101; see also id. at 121-23.
FN124.
Ex. 116B.
FN125.
Tr. (Reider) at 661.
FN126.
Tr. (King) at 418.
FN127.
Id. at 420.
FN128.
WIPO Copyright Treaty, Apr. 12, 1997, Art. 11, S. Treaty Doc. No. 105-17 (1997),
available at 1997 WL 447232.
FN129.
There is an excellent account of the legislative history of the statute. Nimmer,
A Riff on Fair Use, 148 U. PA. L. REV. at 702-38.
FN130.
See generally S. REP. No. 105-190, 105th Cong., 2d Sess. ("SENATE REP."), at 2-8
(1998).
FN131.
H.R. REP. No. 105-551(I), 105th Cong., 2d Sess. ("JUDICIARY COMM. REP."), at 17
(1998).
FN132.
Id. at 18.
FN133.
Plaintiffs rely also on Section 1201(b), which is very similar to Section
1201(a)(2) except that the former applies to trafficking in means of
circumventing protection offered by a technological measure that effectively
protects "a right of a copyright owner in a work or a portion thereof" whereas
the latter applies to trafficking in means of circumventing measures controlling
access to a work. See generally 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER
ON COPYRIGHT ("NIMMER") § 12A.03[C] (1999). In addition, as noted below, certain
of the statutory exceptions upon which defendants have relied apply only to
Section 1201(a)(2).
FN134.
17 U.S.C. § 1201(a)(2). See also 1 NIMMER § 12A.03[1][a], at 12A-16.
FN135.
In their Post-Trial Brief, defendants argue that "at least some of the members
of Congress" understood § 1201 to be limited to conventional devices,
specifically 'black boxes,' as opposed to computer code." Def. Post-Trial Mem.
at 21. However, the statute is clear that it prohibits "any technology,"
not simply black boxes. 17 U.S.C. § 1201(a)(2) (emphasis added).
FN136.
17 U.S.C. § 1201(a)(3)(A).
FN137.
Decryption or avoidance of an access control measure is not "circumvention"
within the meaning of the statute unless it occurs "without the authority of the
copyright owner." 17 U.S.C. § 1201(a)(3)(A). Defendants posit that purchasers of
a DVD acquire the right "to perform all acts with it that are not exclusively
granted to the copyright holder." Based on this premise, they argue that DeCSS
does not circumvent CSS within the meaning of the statute because the Copyright
Act does not grant the copyright holder the right to prohibit purchasers from
decrypting. As the copyright holder has no statutory right to prohibit
decryption, the argument goes, decryption cannot be understood as unlawful
circumvention. Def. Post-Trial Mem. 10-13. The argument is pure sophistry. The
DMCA proscribes trafficking in technology that decrypts or avoids an access
control measure without the copyright holder consenting to the decryption or
avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies "where the access
is authorized"). Defendants' argument seems to be a corruption of the first sale
doctrine, which holds that the copyright holder, notwithstanding the exclusive
distribution right conferred by Section 106(3) of the Copyright Act, 17 U.S.C. §
106(3), is deemed by its "first sale" of a copy of the copyrighted work to have
consented to subsequent sale of the copy. See generally 2 NIMMER §§
8.11-8.12.
FN138.
Id. § 1201(a)(3)(B).
FN139.
RealNetworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889, No.
C99-2070P, 2000 WL 127311, *9 (W.D. Wash. Jan. 18, 2000).
FN140.
HOUSE COMM. ON JUDICIARY, SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY
THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998
("SECTION-BY-SECTION ANALYSIS"), at 10 (Comm. Print 1998) (emphasis in
original).
FN141.
H.R. REP. No. 105-551(II), 105th Cong., 2d Sess. ("COMMERCE COMM. REP."), at 39
(1998).
FN142.
Defendants, in a reprise of their argument that DeCSS is not a circumvention
device, argue also that CSS does not effectively control access to copyrighted
works within the meaning of the statute because plaintiffs authorize avoidance
of CSS by selling their DVDs. Def. Post-Trial Mem. 10-13. The argument is
specious in this context as well. See supra note 137.
FN143.
Tr. (Johansen) at 619; (Corley) 833-34.
FN144.
Def. Post-Trial Mem. at 2.
FN145.
1 NIMMER § 12A.03[A], at 12A-15 (1999 Supp.).
FN146.
See id. § 12A.03[B], at 12A-25 to 12A-26.
FN147.
See Def. Post-Trial Mem. at 13.
FN148.
17 U.S.C. §§ 1201(f)(1), (2).
FN149.
Id. § 1201(f)(3).
FN150.
Def. Post-Trial Mem. at 13-15.
FN151.
COMMERCE COMM. REP. at 43.
FN152.
17 U.S.C. § 1201(g)(4).
FN151a.
Id. § 1201(g)(2).
FN152a.
Id. § 1201(g)(3).
FN153.
Ex. 96 (Corley Dep.) at 33.
FN154.
In any case, Section 1201(g), where its requirements are met, is a defense only
to claims under Section 1201(a)(2), not those under Section 1201(b).
FN155.
Def. Mem. in Opp. to Prelim. Inj. (DI 11) at 11-12.
FN156.
Id. § 1201(j)(1).
FN157.
Like Section 1201(g), moreover, Section 1201(j) provides no defense to a Section
1201(b) claim.
FN158.
17 U.S.C. § 107.
FN159.
Indeed, as many have pointed out, technological means of controlling access to
works create a risk, depending upon future technological and commercial
developments, of limiting access to works that are not protected by copyright
such as works upon which copyright has expired. See, e.g., Nimmer, A Riff on
Fair Use, 148 U. PA. L. REV. at 738-40; Hannibal Travis, Comment, Pirates of the
Information Infrastrcuture: Blackstonian Copyright and the First Amendment, 15
BERKELEY TECH. L. J. 777, 861 (2000) (hereinafter Pirates of the Information
Infrastructure); Yochai Benkler, Free as the Air to Common Use: First Amendment
Constraints on Enclosure of the Public Domain, 74 N.Y.U.L. REV. 354, 421 (1999);
[**66]
FN160.
Of course, one might quote the verbal portion of the sound track, rerecord both
verbal and nonverbal portions of the sound track, and video tape or otherwise
record images produced on a monitor when the DVD is played on a compliant DVD
player.
FN161.
17 U.S.C. § 107.
FN162.
17 U.S.C. § 107.
FN163.
JUDICIARY COMM. REP. 18.
FN164.
Id.
FN165.
17 U.S.C. §§ 1201(a)(1)(B)-(E). The rule-making is under way. 65 F.R. 14505-06
(Mar. 17, 2000); see also FN166.
17 U.S.C. §§ 1201(d), (f), (g), (j).
FN167.
464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984).
FN168.
Id. at 443, 446.
FN169.
RealNetworks, Inc., 2000 WL 127311, at *8 (quoting 1 NIMMER § 12A.18[B], at
12A-130) (internal quotation marks omitted). [**72]
FN170.
SECTION-BY-SECTION ANALYSIS 9 ("The Sony test of 'capability of substantial
non-infringing uses,' while still operative in cases claiming contributory
infringement of copyright, is not part of this legislation . . . .").
FN171.
17 U.S.C. § 1201(a)(2).
FN172.
Tr. (Schumann) at 275-76.
FN173.
Id. at 261-62.
FN174.
For example, a web page maintained by a radio station might provide a hyperlink
to a weather report by programming its page to transfer the user to a National
Weather Service site if the user clicks on the "weather" hyperlink.
FN175.
17 U.S.C. § 1201(a)(2).
FN176.
See 2 THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 3372 (1971).
FN177.
See 2 id. 2340.
FN178.
See 1 id. 1979.
FN179.
See, e.g., Strom v. Goldman, Sachs & Co., 202 F.3d 138, 146-47 (2d Cir.
1999).
FN180.
See DVD Copy Control Ass'n, Inc. v. McLaughlin, No. CV 786804, 2000 WL 48512, *4
(Cal. Super. Jan. 21, 2000) ("website owner cannot be held responsible for all
of the content of the sites to which it provides links"); Richard Raysman &
Peter Brown, Recent Linking Issues, N.Y.L.J., Feb. 8, 2000, p. 3, col. 1
(same).
FN181.
Roth v. United States, 354 U.S. 476, 483, 1 L. Ed. 2d 1498, 77 S. Ct. 1304
(1957) (obscenity). See also, e.g., Sable Comm. of Cal., Inc. v. FCC, 492 U.S.
115, 124, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989) (obscenity); Bose Corp. v.
Consumers Union of United States, 466 U.S. 485, 504, 80 L. Ed. 2d 502, 104 S.
Ct. 1949 (1984) (libel, obscenity, fighting words, child pornography);
Beauharnais v. Illinois, 343 U.S. 250, 266, 96 L. Ed. 919, 72 S. Ct. 725 (1952)
(defamation); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 86 L. Ed. 1031,
62 S. Ct. 766 (1942) (fighting words). [**81]
FN182.
Robert Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH.
L.J. 713, 714 (2000); see R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377,
382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (statements that categories of
speech are "unprotected" are not literally true; characterization indicates only
that they are subject to content based regulation).
FN183.
The Court is indebted to Professor David Touretzky of Carnegie-Mellon
University, who testified on behalf of defendants, for his lucid explication of
this point. See Tr. (Touretzky) at 1066-84 & Ex. BBE, CCO, CCP, CCQ. As will
appear, however, the point does not lead the Court to the same conclusion as Dr.
Touretzky.
FN184.
LEONARD LEVY, FREEDOM OF SPEECH IN EARLY AMERICAN HISTORY: LEGACY OF SUPPRESSION
passim (1960); see also 4 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON
CONSTITUTIONAL LAW § 20.5 (1999); 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS
OF ENGLAND 151-52 (1769).
FN185.
See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S.
557, 569, 132 L. Ed. 2d 487, 115 S. Ct. 2338 (1995).
FN186.
Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000); Bernstein v. U.S. Dept. of
State, 176 F.3d 1132, 1141, reh'g granted and opinion withdrawn, 192 F.3d 1308
(9th Cir. 1999); Bernstein v. U.S. Dept. of State, 922 F. Supp. 1426, 1436 (N.D.
Cal. 1996) (First Amendment extends to source code); see Karn v. U.S. Dept. of
State, 925 F. Supp. 1, 10 (D. D.C. 1996) (assuming First Amendment extends to
source code).
FN187.
Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 33 L.
Ed. 2d 212, 92 S. Ct. 2286 (1972).
FN188.
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641, 129 L. Ed. 2d 497,
114 S. Ct. 2445 (1994); accord, R.A.V., 505 U.S. at 382-83.
FN189.
Sable Comm. of Cal., Inc. v. FCC, 492 U.S. at 126.
FN190.
Turner Broadcasting System, Inc., 512 U.S. at 662 (citing United States v.
O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968)).
FN191.
See, e.g., United States v. O'Brien, 391 U.S. at 376.
FN192.
During the Vietnam era, many who opposed the war, the draft, or both burned
draft cards as acts of protest. Lower federal courts typically concluded or
assumed that the expression inherent in this act of protest brought the behavior
entirely within the scope of the First Amendment. THOMAS I. EMERSON, THE SYSTEM
OF FREEDOM OF EXPRESSION 82 (1970). In United States v. O'Brien, 391 U.S. at
376, however, the Supreme Court rejected "the view that an apparently limitless
variety of conduct can be labeled 'speech' whenever the person engaged in the
conduct intends thereby to express an idea" and adopted a new approach,
discussed below, to the regulation of expressive conduct as opposed to pure
speech. Accord, Spence v. State of Washington, 418 U.S. 405, 410, 41 L. Ed. 2d
842, 94 S. Ct. 2727 (1974). The point for present purposes is that the presence
of expression in some broader mosaic does not result in the entire mosaic being
treated as "speech." [**88]
FN193.
391 U.S. at 376.
FN194.
Def. Post-Trial Mem. at 15-16.
FN195.
Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct.
2746 (1989); accord, Hill v. Colorado, 530 U.S. 703, 147 L. Ed. 2d 597, 120 S.
Ct. 2480, 2491 (2000); Turner Broadcasting System, Inc., 512 U.S. at 642; Madsen
v. Women's Health Center, Inc., 512 U.S. 753, 763, 129 L. Ed. 2d 593, 114 S. Ct.
2516 (1994).
FN196.
See generally Turner Broadcasting System, Inc., 512 U.S. at 646-49 (holding that
"must-carry" provisions of the Cable Television Consumer Protection and
Competition Act of 1992 are content neutral in view of "overriding congressional
purpose . . . unrelated to the content of expression" manifest in detailed
legislative history).
FN197.
475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986).
FN198.
Id. at 46-49; see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 71
n.34, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976).
FN199.
See Karn, 925 F. Supp. at 10 (regulations controlling export of computer code
content neutral); Benkler, 74 N.Y.U.L. REV. at 413 (DMCA "content and viewpoint
neutral").
FN200.
Turner Broadcasting System, Inc., 512 U.S. at 662 (quoting O'Brien, 391 U.S. at
377 (internal quotation marks omitted)); see also, e.g., United States v.
Weslin, 156 F.3d 292, 297 (2d Cir. 1998).
FN201.
Turner Broadcasting System, Inc., 512 U.S. at 662; see also Hill, 120 S. Ct. at
2494.
FN202.
Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689, 86
L. Ed. 2d 536, 105 S. Ct. 2897 (1985)).
FN203.
U.S. CONST., art. I, § 8 (Copyright Clause). [**95]
FN204.
COMMERCE COMM. REP. 94-95; SENATE REP. 21-22, 143.
FN205.
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558, 85
L. Ed. 2d 588, 105 S. Ct. 2218 (1985).
FN206.
It is conceivable that technology eventually will provide means of limiting
access only to copyrighted materials and only for uses that would infringe the
rights of the copyright holder. See, e.g., Travis, 15 BERKELEY TECH. L.J. at
835-36; Mark Gimbel, Note, Some Thoughts on the Implications of Trusted Systems
for Intellectual Property Law, 50 Stan. L. Rev. 1671, 1875-78 (1998); Mark
Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights
Challenge Us to Rethink Digital Publishing, 12 BERKELEY TECH. L.J. 137, 138-40
(1997). We have not yet come so far.
FN207.
209 F.3d 481 (6th Cir. 2000).
FN208.
Id. at 485.
FN209.
391 U.S. at 377. [**97]
FN210.
209 F.3d at 485.
FN211.
See Lee Tien, Publishing Software as a Speech Act, 15 BERKELEY TECH. L. J. 629,
694-701 (2000). Professor Tien's analysis itself has been criticized. Robert
Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH. L.J. 715
(2000).
FN212.
This perhaps is not as surprising as first might appear. Computer "viruses" are
other programs, an understanding of which is aided by the biological analogy
evident in their name. See, e.g., Jeffrey O. Kephart, Gregory B. Sorkin, David
M. Chess and Steve R. White, Fighting Computer Viruses, SCIENTIFIC AMERICAN,
(visited Aug. 16, 2000) FN213.
DAVID E. LILIENFELD & PAUL D. STOLLEY, FOUNDATIONS OF EPIDEMIOLOGY 38-41
& Fig. 3-1 (3d ed. 1994); JOHN P. FOX, CARRIE E. HALL & LILA R.
ELVEBACK, EPIDEMIOLOGY--MAN AND DISEASE 246-47 (1970).
FN214.
Of course, not everyone who obtains DeCSS or some other decryption program
necessarily will use it to engage in copyright infringement, just as not
everyone who is exposed to a contagious disease contracts it. But that is
immaterial. The critical point is that the combination of (a) the manner in
which the ability to infringe is spread and (b) the lack of any practical means
of controlling infringement at the point at which it occurs once the capability
is broadly disseminated render control of infringement by controlling
availability of the means of infringement far more critical in this
context.
FN215.
See, e.g., Guido Calabresi & Jeffrey O. Cooper, New Directions in Tort Law,
30 VAL. U. L. REV. 859, 870-72 (1996).
FN216.
As has been noted above, some categories of speech, which often have been
referred to inaccurately as "unprotected," may be regulated on the basis of
their content. R.A.V., 505 U.S. at 382-83. These have included obscenity and
"fighting words," to name two such categories. The determination of the types of
speech which may be so regulated has been made through a process termed by one
leading commentator as "definitional" balancing--a weighing of the value of free
expression in these areas against its likely consequences and the legitimate
interests of government. Melville B. Nimmer, The Right to Speak from Times to
Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL.
L. REV. 935, 942 (1968); see R.A.V., 505 U.S. at 382-83. Thus, even if one
accepted defendants' argument that the anti-trafficking prohibition of the DMCA
is content based because it regulates only code that "expresses" the
programmer's "ideas" for circumventing access control measures, the question
would remain whether such code--code designed to circumvent measures controlling
access to private or legally protected data--nevertheless could be regulated on
the basis of that content. For the reasons set forth in the text, the Court
concludes that it may. Alternatively, even if such a categorical or definitional
approach were eschewed, the Court would uphold the application of the DMCA now
before it on the ground that this record establishes an imminent threat of
danger flowing from dissemination of DeCSS that far outweighs the need for
unfettered communication of that program. See Landmark Communications, Inc. v.
Virginia, 435 U.S. 829, 842-43, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978).
[**105]
FN217.
For example, one might imagine a computer program the object of which was to
teach the user a particular view of a subject, e.g., evolution or creationism.
Such a program, like this one, would be within the area of First Amendment
concern and functional. Yet a regulation barring its use would be subject to a
quite different analysis. Such a ban, for example, might be based on the content
of the message the program caused the computer to deliver to the student-user
and thus quite clearly be content based. Similarly, the
function--teaching--would not involve the same likelihood that the dissemination
would bring about a harm that the government has a legitimate right to
prevent.
FN218.
New York Times Co. v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 91 S.
Ct. 2140 (1971) (per curiam) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S.
58, 70, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963)). [**107]
FN219.
See, e.g., Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S.
328, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986) (upholding restrictions on casino
gambling advertising); Times Film Corp. v. Chicago, 365 U.S. 43, 5 L. Ed. 2d
403, 81 S. Ct. 391 (1961) (upholding local ordinance requiring review of films
by municipal officials as prerequisite to issuance of permits for public
screening); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.) (enjoining
biographer's use of subject's unpublished letters as copyright infringement),
cert. denied, 484 U.S. 890, 98 L. Ed. 2d 177, 108 S. Ct. 213 (1987); Dallas
Cowboys Cheerleaders v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir. 1979)
(enjoining distribution of film on ground that actresses' uniforms infringed
plaintiff's trademark). See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL
LAW § 12-36, at 1045-46 (1988) (hereinafter TRIBE).
FN220.
See, e.g., Charles of the Ritz Group, Ltd. v. Quality King Distributors, Inc.,
832 F.2d 1317 (2d Cir. 1987) (upholding injunction against commercial slogan on
ground that slogan created a likelihood of confusion and is therefore "beyond
the protective reach of the First Amendment"); Vondran v. McLinn, 1995 U.S.
Dist. LEXIS 21974, No. 95-20296, 1995 WL 415153, *6 (N.D. Cal. July 5, 1995)
(enjoining defendant's false and disparaging remarks regarding plaintiff's
patented process for making fiber reinforced concrete on the ground that the
remarks are not protected by the First Amendment). [**108]
FN221.
See, e.g., Times Film Corp., 365 U.S. 43, 5 L. Ed. 2d 403, 81 S. Ct. 391
(upholding local ordinance requiring review by city officials of all films as a
prerequisite to grant of permit for public screening despite concerns of First
Amendment violations); Posadas de Puerto Rico Assoc., 478 U.S. 328, 92 L. Ed. 2d
266, 106 S. Ct. 2968 (upholding restrictions on advertising despite finding that
the advertising fell within ambit of First Amendment); Dallas Cowboys
Cheerleaders, Inc., 604 F.2d 200 (enjoining distribution of film for trademark
infringement despite claim that injunction violated distributor's First
Amendment rights).
FN222.
4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (1769).
FN223.
See Pittsburgh Press Co. v. Pittsburgh Comm. on Human Rel., 413 U.S. 376, 390,
37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973).
FN224.
Martin H. Redish, The Proper Role of the Prior Restraint Doctrine in First
Amendment Theory, 70 VA. L. REV. 53, 54 (1983) (hereinafter "Redish"). See also
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-34, at 1040-41 (2d ed.
1988).
FN225.
John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 419
(1983). [**109]
FN226.
Despite the conventional wisdom, it is far from clear that an injunction
necessarily is a prior restraint. Our circuit, for example, has suggested that
the prior restraint doctrine does not apply to content neutral injunctions. See
e.g., Dallas Cowboys Cheerleaders, Inc., 604 F.2d at 206. At least one
commentator persuasively has argued that there is little justification for
placing injunctions, at least permanent injunctions issued after trial, in a
disfavored constitutional position. Jeffries, 92 YALE L.J. at 426-34.
Nevertheless, there is no reason to decide that question in this case. The
following discussion therefore assumes that the permanent injunction plaintiff
seeks would be a "prior restraint," although it concludes that it would not be
unconstitutional.
FN227.
283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).
FN228.
403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).
FN229.
427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).
FN230.
See H.R. REP. 106-216, 106th Cong., 1st Sess. (1999) ("Notwithstanding
[penalties for copyright infringement] copyright piracy of intellectual property
flourishes, assisted in large part by today's world of advanced technologies.
For example, industry groups estimate that counterfeiting and piracy of computer
software cost the affected copyright holders more than $ 11 billion last year
(others believe the figure is closer to $ 20 billion). In some countries,
software piracy rates are as high as 97% of all sales. The U.S. rate is far
lower (25%), but the dollar losses ($ 2.9 billion) are the highest worldwide.
The effect of this volume of theft is substantial: lost U.S. jobs, lost wages,
lower tax revenue, and higher prices for honest purchasers of copyrighted
software. Unfortunately, the potential for this problem to worsen is great.");
S. REP. 106-140, 106th Cong., 1st Sess. (1999) ("Trademark owners are facing a
new form of piracy on the Internet caused by acts of 'cybersquatting.'"); S.
REP. 105-190, 105th Cong., 2d Sess. (1998) ("Due to the ease with which digital
works can be copied and distributed worldwide virtually instantaneously,
copyright owners will hesitate to make their works readily available on the
Internet without reasonable assurance that they will be protected against
massive piracy."); H.R. REP. 105-339, 105th Cong., 1st Sess. (1997) ("Copyright
piracy flourishes in the software world.").
FN231.
Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in
Intellectual Property Cases, 48 DUKE L.J. 147, 210 & n.275 (1998).
FN232.
See, e.g., Pittsburgh Press Co., 413 U.S. at 390 ("The special vice of a prior
restraint is that communication will be suppressed . . . before an adequate
determination that it is unprotected by the First Amendment."); Lemley &
Volokh, 48 DUKE L.J. at 200-02, 211; see Redish, 70 VA. L. REV. at
75-83.
FN233.
See Lemley & Volokh, 48 DUKE L.J. at 211-12, 215 (acknowledging that high
likelihood of success diminishes risk of erroneous suppression of protected
speech).
FN234.
Def. Post-Trial Mem. at 22-24.
FN235.
Id. at 22. Defendants argue also that the DMCA as applied is overbroad in that
"it would prohibit defendants from posting and making programs such as DeCSS
available in any form, from English to any level of computer code." Id. The
overbreadth doctrine, however, enables litigants to challenge a statute not
merely because their own First Amendment rights are violated, but because the
statute may cause others to abstain from constitutionally protected expression.
Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 93 S. Ct. 2908
(1973). This aspect of defendants' argument, which in any case is an
overstatement, therefore does not refer to overbreadth in the sense relevant
here.
FN236.
Broadrick, 413 U.S. at 610.
FN237.
Gooding v. Wilson, 405 U.S. 518, 520-21, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972)
(quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 14 L. Ed. 2d 22, 85 S. Ct.
1116 (1965)).
FN238.
Gooding, 405 U.S. at 521.
FN239.
Los Angeles Police Department v. United Reporting Pub. Corp., 528 U.S. 32, 120
S. Ct. 483, 489, 145 L. Ed. 2d 451 (1999) (quoting New York v. Ferber, 458 U.S.
747, 769, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982) (quoting Broadrick, 413 U.S.
at 613)).
FN240.
120 S. Ct. at 489 (quoting Ferber, 458 U.S. at 770 (quoting Broadrick, 413 U.S.
at 615)). [**117]
FN241.
Broadrick, 413 U.S. at 612.
FN242.
Tr. (King) at 441.
FN243.
Defendants argue that the right of third parties to view DVD movies on computers
running the Linux operating system will be materially impaired if DeCSS is not
available to them. However, the technology to build a Linux-based DVD player has
been licensed by the DVD CCA to at least two companies, and there is no reason
to think that others wishing to develop Linux players could not obtain licenses
if they so chose. Tr. (King) at 437-38. Therefore, enforcement of the DMCA to
prohibit the posting of DeCSS would not materially impair the ability of Linux
users to view DVDs on Linux machines. Further, it is not evident that
constitutional protection of free expression extends to the type of device on
which one plays copyrighted material. Therefore, even assuming arguendo that the
ability of third parties to view DVD movies on Linux systems were materially
impaired by enforcement of the DMCA in this case, this impairment would not
necessarily implicate the First Amendment rights of these third parties.
FN244.
CSS encryption coupled with the characteristics of compliant DVD players also
forecloses copying of digital sound files. It is not clear, however, that this
is a substantial impediment to copying sound from motion picture DVDs. A DVD can
be played on a compliant player and the sound re-recorded. Whether the sound
quality thus obtained would be satisfactory might well depend upon the
particular use to which the copy was put. [**121]
FN245.
The same point might be made with respect to copying of works upon which
copyright has expired. Once the statutory protection lapses, the works pass into
the public domain. The encryption on a DVD copy of such a work, however, will
persist. Moreover, the combination of such a work with a new preface or
introduction might result in a claim to copyright in the entire combination. If
the combination then were released on DVD and encrypted, the encryption would
preclude access not only to the copyrighted new material, but to the public
domain work. As the DMCA is not yet two years old, this does not yet appear to
be a problem, although it may emerge as one in the future.
FN246.
Defendants argue that "there is now a full evidentiary record" and that the
overbreadth issue therefore should be decided. Def. Post-Trial Mem. at 22 n.11.
With respect, the evidence as to the impact of the anti-trafficking provision of
the DMCA on prospective fair users is scanty and fails adequately to address the
issues.
This is not to minimize the interests of
the amici who have submitted briefs in this case. The Court simply does not have
a sufficient evidentiary record on which to evaluate their claims.
FN247.
17 U.S.C. § 1201(g).
FN248.
Def. Post-Trial Mem. at 24.
FN249.
Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495, 71 L. Ed. 2d 362, 102
S. Ct. 1186 (1982).
FN250.
See 17 U.S.C. § 1201(a)(2)(A).
FN251.
Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689, 86
L. Ed. 2d 536, 105 S. Ct. 2897 (1985)).
FN252.
ACLU v. Reno, 929 F. Supp. 824, 837 (E.D. Pa. 1996), aff'd, 521 U.S. 844, 138 L.
Ed. 2d 874, 117 S. Ct. 2329 (1997). [**129]
FN253.
Richard Raysman & Peter Brown, Recent Linking Issues, N.Y.L.J., Feb. 8,
2000, p. 3, col. 1.
FN254.
Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 271-73, 283-88, 11 L. Ed. 2d
686, 84 S. Ct. 710 (1964). n2
FN255.
55 376 U.S. at 283; Curtis Pub. Co. v. Butts, 388 U.S. 130, 155, 18 L. Ed. 2d
1094, 87 S. Ct. 1975 (1967); St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed.
2d 262, 88 S. Ct. 1323 (1968); ROBERT D. SACK, SACK ON DEFAMATION § 1.2.4 (3d
ed. 1999).
FN256.
418 U.S. 323, 347-38, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
FN257.
In evaluating purpose, courts will look at all relevant circumstances. Sites
that advertise their links as means of getting DeCSS presumably will be found to
have created the links for the purpose of disseminating the program. Similarly,
a site that deep links to a page containing only DeCSS located on a site that
contains a broad range of other content, all other things being equal, would
more likely be found to have linked for the purpose of disseminating DeCSS than
if it merely links to the home page of the linked-to site.
FN258.
Tr. (Corley) at 820. n2
FN259.
59 17 U.S.C. § 1203(a).
FN260.
Def. Post-Trial Mem. at 27-28.
FN261.
The statute expressly authorizes injunctions to prevent or restrain violations,
17 U.S.C. § 1203(b)(1), thus demonstrating that the requisite injury need only
be threatened.
FN262.
Def. Post-Trial Mem. at 28.
FN263.
Id. at 28-29.
FN264.
See, e.g., Ex. AYZ (Hunt Dep.) at 94-104.
FN265.
Id. 30.
FN266.
Ex. 113.
FN267.
Defendants' argument would lack merit even if there were credible proof that
other circumvention devices actually exist and produce results comparable to
DeCSS. The available movies must have been decrypted with DeCSS or something
else. As far as this record discloses, any such device or technology would
violate the DMCA for the same reasons as does DeCSS. In consequence, this case
comes within the principle of Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948).
Where, as here, two or more persons take substantially identical wrongful
actions, one and only one of which had to be the source of the plaintiffs'
injury, and it is equally likely that one inflicted the injury as the other, the
burden of proof on causation shifts to the defendants, each of which is liable
absent proof that its action did not cause the injury. See 4 Fowler V. Harper
& Fleming James, Jr., THE LAW OF TORTS §§ 101-04 (2d ed. 1996).
Defendants' efforts to avoid the
consequences of this common sense principle are unpersuasive. They argue, for
example, that plaintiffs may not invoke the theory unless they join as
defendants everyone who may have contributed to the injury. Def. Post-Trial Mem.
at 32 n.18 (citing Ex. UZ). It would be difficult to imagine a more nonsensical
requirement in the context of this case. Where, as here, harm is done by
dissemination of information over the Internet, probably by a substantial number
of people all over the world, defendants' proposed rule would foreclose judicial
relief anywhere because joinder of all plainly would be impossible in any one
place, and technology does not permit identification of which wrongdoer's
posting or product led to which pirated copy of a copyrighted work.
FN268.
17 U.S.C. § 1203(b)(1).
FN269.
See, e.g., SEC v. Unique Financial Concepts, Inc., 196 F.3d 1195, 1199 n.2 (2d
Cir. 1999) (injunction under Section 20(b) of the Securities Act of 1933, 15
U.S.C. § 77t(b), which permits an injunction "upon a proper showing," requires
"a reasonable likelihood that the wrong will be repeated"); CFTC v. Hunt, 591
F.2d 1211, 1220 (7th Cir. 1979) (same under Commodity Exchange Act, 7 U.S.C. §
13a-1(b)); SEC v. Bausch & Lomb Inc., 565 F.2d 8, 18 (2d Cir. 1977)
(reasonable likelihood of future violations required under § 21(d) of Securities
Exchange Act of 1934, 15 U.S.C. § 78u(d), which permits an injunction "upon a
proper showing" where person "engaged or . . . about to engage in" violation of
statute). [**139]
FN270.
See, e.g., Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57, 45 L. Ed. 2d 12, 95
S. Ct. 2069 (1975) (injunctive relief in private action under § 13(d) of the
Securities Exchange Act of 1934, 15 U.S.C. § 78m(d), as added by the Williams
Act, requires a showing of irreparable harm and inadequacy of legal
remedies).
FN271.
Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 967-68 (2d Cir. 1995)
(trademark); Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 124
(2d Cir. 1994) (copyright).
FN272.
See, e.g., Northwestern Nat'l Ins. Co. v. Alberts, 937 F.2d 77, 80 (2d Cir.
1991) ("The irreparable injury requisite . . . overlaps with the absent lack of
adequate remedy at law necessary to establish the equitable rights."); Buffalo
Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981) ("There
must also be a showing of irreparable harm, the absence of an adequate remedy at
law, which is the sine qua non for the grant of such equitable relief.")
FN273.
Religious Tech. Ctr. v. Netcom On-Line Comm. Servs., Inc., 923 F. Supp. 1231,
1256 (N.D. Cal. 1995).
FN274.
Com-Share, Inc. v. Computer Complex, Inc., 338 F. Supp. 1229, 1239 (E.D. Mich.
1971).
FN275.
During the trial, Professor Touretzky of Carnegie Mellon University, as noted
above, convincingly demonstrated that computer source and object code convey the
same ideas as various other modes of expression, including spoken language
descriptions of the algorithm embodied in the code. Tr. (Touretzky) at 1068-69;
Ex. BBE, CCO, CCP, CCQ. He drew from this the conclusion that the preliminary
injunction irrationally distinguished between the code, which was enjoined, and
other modes of expression that convey the same idea, which were not, id.,
although of course he had no reason to be aware that the injunction drew that
line only because that was the limit of the relief plaintiffs sought. With
commendable candor, he readily admitted that the implication of his view that
the spoken language and computer code versions were substantially similar was
not necessarily that the preliminary injunction was too broad; rather, the logic
of his position was that it was either too broad or too narrow. Id. at 1070-71.
Once again, the question of a substantially broader injunction need not be
addressed here, as plaintiffs have not sought broader relief.
FN276.
17 U.S.C. § 1203(b)(4)-(b)(5).
FN277.
See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 127 L. Ed. 2d 455, 114 S. Ct.
1023 (1994) (articulating factors relevant to fee awards under the Copyright
Act).
FN278.
Universal City Studios, Inc. v. Reimerdes, 104 F. Supp. 2d 334, 2000 U.S. Dist.
LEXIS 9936, 2000 WL 987285 (S.D.N.Y. 2000).
FN279.
The chief factual issue actually litigated at trial was the speed with which
decrypted files could be transmitted over the Internet and other networks.
"We have to face the possibility that we could be forced into
submission. For that reason it's especially important that as many of you as
possible, all throughout the world, take a stand and mirror these files." [FN97]
Thus,
defendants obviously hoped to frustrate plaintiffs' recourse to the judicial
system by making effective relief difficult or impossible.
"No person shall . . . offer to the public, provide or otherwise
traffic in any technology . . . that--
In this case, defendants
concededly offered and provided and, absent a court [**48] order, would continue
to offer and provide DeCSS to the public by making it available for download on
the 2600.com web site. DeCSS, a computer program, unquestionably is "technology"
within the meaning of the statute. [FN135]
[**49] "Circumvent a technological measure" is defined to mean descrambling a
scrambled work, decrypting an encrypted work, or "otherwise to avoid, bypass,
remove, deactivate, or impair a technological measure, without the authority of
the copyright owner," [FN136]
so DeCSS clearly is a means of circumventing a technological access control
measure. [FN137]
In consequence, if CSS otherwise falls within paragraphs (A), (B) or (C) of
Section 1201(a)(2), and if none of the statutory exceptions applies to their
actions, defendants have violated and, unless enjoined, will continue to violate
the DMCA by posting DeCSS.
"(A) is primarily designed or
produced for the purpose of circumventing a technological measure that
effectively controls access to a work protected under [the Copyright Act];
"(B) has only limited commercially
significant purpose or use other than to circumvent a technological measure
that effectively controls access to a work protected under [the Copyright
Act]; or [*317]
"(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 [the Copyright Act]." [FN134]"The bill does define the functions of the technological
measures that are covered--that is, what it means for a technological measure
to 'effectively control access to a work' . . . and to 'effectively protect a
right of a copyright [**52] owner under this title' . . . . The practical,
common-sense approach taken by H.R. 2281 is that if, in the ordinary course of
its operation, a technology actually works in the defined ways to control
access to a work . . . then the 'effectiveness' test is met, and the
prohibitions of the statute are applicable. This test, which focuses on the
function performed by the technology, provides a sufficient basis for clear
interpretation." [FN140]
[**53] Further, the House Commerce Committee made clear
that measures based on encryption or scrambling "effectively control" access to
copyrighted works, [FN141]
although it is well known that what may be encrypted or scrambled often may be
decrypted or unscrambled. As CSS, in the ordinary course of its operation--that
is, when DeCSS or some other decryption program is not employed-- "actually
works" to prevent access to the protected work, it "effectively controls access"
within the contemplation of the statute.
"Notwithstanding the provisions of subsection
(a)(2), it is not a violation of that subsection for a person to--
Paragraph (2) in relevant part permits circumvention of technological measures
in the course of good faith encryption research if:
"(A) develop and employ technological
means to circumvent a technological measure for the sole purpose of that
person performing the acts of good faith encryption research described in
paragraph (2); and
"(B) provide the
technological means to another person with whom he or she is working
collaboratively for [**61] the purpose of conducting the acts of good faith
encryption research described in paragraph (2) or for the purpose of having
that other person verify his or her acts [*321] of good faith encryption
research described in paragraph (2)." [FN152]"(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;
In determining
whether one is engaged in good faith encryption research, the Court is
instructed to consider factors including whether the results of the putative
encryption research are disseminated in a manner designed to advance the state
of knowledge of encryption technology versus facilitation of copyright
infringement, whether the person in question is engaged in legitimate study of
or work in encryption, and whether the results of the [**62] research are
communicated in a timely fashion to the copyright owner. [FN152a]
"(B) such act is necessary
to conduct such encryption research;
"(C) the person made a good faith
effort to obtain authorization before the circumvention; and
"(D) such act
does not constitute infringement under this title . . . ." [FN151a]"it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression;
and if [**93] the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that [*330] interest."
[FN200]
Moreover, "to satisfy this standard, a
regulation need not be the least speech-restrictive means of advancing the
Government's interests." [FN201]
"Rather, the requirement of narrow tailoring is satisfied 'so long as the . . .
regulation promotes a substantial government interest that would be achieved
less effectively absent the regulation.'" [FN202]