UNIVERSAL CITY STUDIOS, INC, et al., Plaintiffs, -against-
SHAWN C. REIMERDES, et al., Defendants.
00 Civ. 0277 (LAK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
111 F. Supp. 2d 294; 2000 U.S. Dist. LEXIS 11696; 55
U.S.P.Q.2D (BNA) 1873; Copy. L. Rep. (CCH) P28,122
August 17, 2000, Decided
August 17, 2000, Filed
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") n1 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.
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n1 17 U.S.C. § 1201 et seq.
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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. n2 This is the Court's decision after trial, and the decision
may be summarized in a nutshell.
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n2 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.
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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. n3 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.
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n3 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).
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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." n4
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n4 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.
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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.'" n5
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n5 United States v. Microsoft Corp., 84 F. Supp. 2d at 13.
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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, n6 also is an operating system. n7 It can be run on a
PC as an alternative to Windows, although the extent to which it is so used is
limited. n8 Linux is more widely used on servers. n9
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n6 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. [**8]
n7 Tr. (Pavlovich) at 936.n8 Tr. (DiBona) at 994-95.n9 Id.
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2. Computer Code
"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)." n10 All data and instructions input to or contained in
computers therefore must be reduced the numerals 1 and 0. n11
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n10 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).n11 Tr. (Felten)
at 759; Scheindlin & Rabkin, 34 B. C. L. REV. at 333-35.
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"The smallest unit of memory in a computer," a bit, "is a switch with a value
of [*306] 0 (off) or 1 (on)." n12 A group of [**9] eight bits is called a
byte and represents a character--a letter or an integer. n13 A kilobyte ("K") is
1024 bytes, a megabyte ("MB") 1024 kilobytes, and a gigabyte ("GB") 1024
megabytes. n14
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n12 SCIENCE DESK REFERENCE, at 501.n13 Id.n14 Id.
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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. n15 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. n16 And whether
directly or through the medium of another program, n17 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. n18
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n15 See Tr. (Felten) at 759-60.n16 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.n17 Frequently, programs written in such languages must be transformed
or translated into machine readable form by other programs known as compilers.
n18 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.
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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." n19
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n19 United States v. Microsoft Corp., 84 F. Supp. 2d at 13.
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Internet Relay Chat ("IRC") is a system that enables individuals connected to
the Internet to participate in live typed discussions. n20 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.
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n20 Tr. (Shamos) at 67-68.
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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." n21
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n21 United States v. Microsoft Corp., 84 F. Supp. 2d at 13.
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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."
n22
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n22 Id. at 14.
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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." n23
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n23 Id.
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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." n24
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n24 Id.
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4. Portable Storage Media
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. n25 For present purposes, however, we are
concerned principally with two more recent developments, CD-ROMs [**15] and
digital versatile disks, or DVDs.
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n25 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.
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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.
n26
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n26 Tr. (King) at 403-04.
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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.
n27 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. n28 The
technology necessary to configure DVD players and drives to play CSS-protected
DVDs n29 has been licensed to hundreds of manufacturers in the United States and
around the world.
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n27 Tr. (Shamos) at 24.
n28 Id. at 24-25.
n29 Such devices are referred to subsequently as compliant.
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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. n30 The quality of motion pictures decrypted
by DeCSS is virtually identical to that of encrypted movies [**17] on DVD. n31
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n30 Tr. (Shamos) at 25.
n31 Tr. (Schumann) at 273.
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DivX is a compression program available for download over the Internet. n32
It compresses video files in order to minimize required storage space, often to
facilitate transfer over the Internet or other networks. n33
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n32 Tr. (Ramadge) at 911.
n33 Id. at 911-12.
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B. Parties
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. n34 Plaintiffs produce and distribute a large majority of the motion
pictures on DVDs on the market today. n35
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n34 Ex. 2.1-2.34; 3.1-3.34.
N35 Tr. (King) at 404.
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[**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. n36 He and his company, defendant 2600
Enterprises, Inc., together publish a magazine called 2600: The Hacker Quarterly
, which Corley founded in 1984, n37 and which is something of a bible to the
hacker community. n38 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. n39
Mr. Corley chose the name because he regarded it as a "mystical thing," n40
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, n41 access other people's e-mail, n42 intercept cellular
phone calls, n43 and break into the computer systems [*309] at Costco stores
n44 and Federal Express. n45 One issue contains a guide to the federal criminal
justice system for readers charged [**19] with computer hacking. n46 In
addition, defendants operate a web site located at <http://www.2600.com> (
"2600.com"), which is managed primarily by Mr. Corley and has been in existence
since 1995. n47
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n36 Tr. (Corley) at 787, 827.
n37 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.
n38 See Tr. (Corley) at 781.
n39 Tr. (Corley) 786-87.
n40 Id. at 787.
n41 Ex. 1.2 (Redomega Crim, How Domains Are Stolen, 2600: THE HACKER
QUARTERLY, Summer 2000, at 43).
n42 Ex. 1.16 (Schlork, Snooping via MS-Mail, 2600: THE HACKER QUARTERLY,
Winter 1996-97, at 28).
n43 Ex. 1.14 (Thomas Icom, Cellular Interception Techniques, 2600: THE HACKER
QUARTERLY, Spring 1995, at 23).
n44 Ex. 1.12 (nux, Fun at Costco, 2600: THE HACKER QUARTERLY, Summer 1999, at
12).
n45 Ex. 1.19 (PhranSys Drak3, Hacking FedEx, 2600: THE HACKER QUARTERLY,
Autumn 1997, at 14).
n46 Ex. 1.19 (Agent Steal, Busted! A Complete Guide to Getting Caught, 2600:
THE HACKER QUARTERLY, Autumn 1997, at 6). [**20]
n47 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.
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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. n48 At that time, 2600.com contained also a list of links
to other web sites purporting to post DeCSS. n49
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n48 Tr. (Corley) at 791; Ex. 28.
n49 Tr. (Corley) at 791, 829, 848; Ex. 28.
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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. n50
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n50 Tr. (King) at 402.
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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. n51 This technology, which in 1995 became
what is known today as DVD, n52 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. n53
In consequence, the movie studios became concerned as the product neared market
with the threat of DVD piracy. [**22] n54
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n51 Id. at 404, 468.
n52 Id. at 408, 468, 470.
n53 Id. at 404-05.
n54 Id. at 404-05, 468-70.
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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. n55 They
eventually came to include representatives of the consumer electronics and
computer industries, as well as interested members of the public, n56 and
focused on both legislative proposals and technological solutions. n57 In 1996,
Matsushita Electric Industrial Co. ("MEI") and Toshiba Corp., presented--and the
studios adopted--CSS. n58
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n55 Id. at 406.
n56 Id. at 405-06, 471, 476-78.
n57 Id. at 405, 470-71, 479.
n58 Id. at 406-07, 502-04.
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CSS involves encrypting, according to an encryption algorithm, n59 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.
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n59 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.
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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. n60 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. n61
Moreover, manufacturers may not, consistent with their licenses, make equipment
that would supply digital output that could be used in copying protected DVDs.
n62 Licenses to manufacture compliant devices are granted on a royalty-free
basis subject only to an administrative fee. n63 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. n64
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n60 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.
n61 See, e.g., Ex. AHV §§ 5, 6.2.
n62 Tr. (King) at 450-51, 492-93; Ex. XXY (Attaway Dep.) at 61-62; Ex. AHV.
n63 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. [**25]
n64 Tr. (King) at 437-38; see also Tr. (Pavolvich) at 961; Ex. BD.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
With CSS in place, the studios introduced DVDs on the consumer market in
early 1997. n65 All or most of the motion pictures released on DVD were, and
continue to be, encrypted with CSS technology. n66 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, n67 and players are projected to be in ten
percent of United States homes by the end of 2000. n68
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n65 Tr. (King) at 408-09.
n66 Id. at 409.
n67 Id. at 417-18.
n68 Id. at 442.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n69 Revenue from
the home market, in [*311] turn, makes up a large percentage of the studios'
total distribution revenue. n70
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n69 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.
n70 Distribution in the home video market accounts for approximately 40
percent of Warner Brothers' total income from movie distribution. Id.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
D. The Appearance of DeCSS
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. n71 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. n72 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. n73 Neither Mr. Johansen nor his collaborators obtained a
license from the DVD CCA. n74
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n71 Tr. (Johansen) at 619-22, 633, 639.
n72 Id. at 619-21, 634; (Schumann) at 246-48. Mr. Johansen testified that the
"De" in DeCSS stands for "decrypt." Tr. (Johansen) at 628.
n73 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.
n74 Tr. (Johansen) at 620.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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, n75 DeCSS is a Windows executable file; that is, it can be executed only
on computers running the Windows operating system. n76 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. n77 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. n78 Assuming that to be true, n79 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n75 Id. at 620.
n76 Id. at 621-22.
n77 Id. at 621-22, 624; (Stevenson) at 214.
n78 Tr. (Johansen) at 623.
n79 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.").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In January 1999, Norwegian prosecutors filed charges against Mr. Johansen
stemming from the development of DeCSS. n80 The disposition of the Norwegian
[**29] case does not appear of record.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n80 Tr. (Johansen) at 626-27.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
E. The Distribution of DeCSS
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. n81 A few other applications said to
decrypt CSS-encrypted DVDs also have appeared on the Internet. n82
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n81 Ex. 97, 107, 126.
n82 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**30] [*312]
In November 1999, defendants' web site began to offer DeCSS for download. n83
It established also a list of links to several web sites that purportedly
"mirrored" or offered DeCSS for download. n84 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. n85 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. n86 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.
n87 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. n88
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n83 Tr. (Corley) at 791; Ex. 28.
n84 Tr. (Corley) at 791, 829, 848; Ex. 28. [**31]
n85 Tr. (Corley) at 829-30, 845.
n86 Id. at 831, 845.
n87 Id. at 829-30, 845.
n88 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n89 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. n90 In January 2000, the
studios filed this lawsuit against [**32] defendant Eric Corley and two others.
n91
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n89 Tr. (Reider) at 652.
n90 Tr. (King) at 435, 548; (Reider) at 653; Ex. 55.
n91 The other two defendants entered into consent decrees with plaintiffs.
Plaintiffs subsequently amended the complaint to add 2600 Enterprises, Inc. as a
defendant.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n92 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. n93
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n92 Preliminary Injunction, Jan. 20, 2000 (DI 6); Universal City Studios,
Inc., 82 F. Supp. 2d 211.
n93 Tr., Jan. 20, 2000 (DI 17) at 85.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**33]
Following the issuance of the preliminary injunction, defendants removed
DeCSS from the 2600.com web site. n94 In what they termed an act of "electronic
civil disobedience," n95 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. n96 Indeed, they carried a banner [*313] saying
"Stop the MPAA" and, in a reference to this lawsuit, proclaimed:
"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." n97
Thus, defendants obviously hoped to frustrate plaintiffs' recourse to the
judicial system by making effective relief difficult or impossible.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n94 Tr. (Corley) at 791; Ex. 51.
n95 Tr. (Corley) at 834; Ex. 96 (Corley Dep.) at 151-53.
n96 Tr. (Corley) at 791; Ex. 79 (Corley Dec.) P21; 126.
n97 Ex. 106.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n98
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n98 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
G. Effects on Plaintiffs
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. n99 Downloading is
simple and quick--plaintiffs' expert did it in seconds. n100 The program in fact
decrypts at least some DVDs. n101 Although the process is computationally
intensive, plaintiffs' expert decrypted a store-bought copy of Sleepless in
Seattle in [**35] 20 to 45 minutes. n102 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. n103 The decrypted file can be copied like any
other. n104
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n99 Tr. (Shamos) at 36-42; (Schumann) at 272-73.
n100 Tr. (Shamos) at 39-40; see also Ex. AYZ (Hunt Dep.) at 18.
n101 Tr. (Shamos) at 41-42; (Schumann) at 272-73.
n102 Tr. (Shamos) at 41-42, 156.
n103 Tr. (Schumann) at 273; Ex. AYZ (Hunt Dep.) at 26.
n104 Tr. (Johansen) at 628; see also Ex. AZN (Simons Dep.) at 48.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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 n105--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. n106
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n105 Tr. (Shamos) at 42; (Ramadge) at 900.
n106 See Tr. (Shamos) at 54-56; Ex. 112-13.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n107 While the compressed sound and graphic files then
must be synchronized, a tedious process that took plaintiffs' expert between 10
and 20 hours, n108 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. n109
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n107 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. [**37]
n108 Tr. (Shamos) at 51.
n109 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The fact that DeCSS-decrypted DVDs can be compressed satisfactorily to 650 MB
is very important. A writeable CD-ROM can hold 650 MB. n110 Hence, 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. n111
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]
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n110 Tr. (Ramadge) at 930.
n111 Tr. (Shamos) at 56-57.
The copies do not require resynchronization of the sound and graphics.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n112 Cable modems also offer increased bandwidth. Student
rooms in many universities are equipped with network connections rated at 10
megabits per second. n113 Large institutions such as universities and major
companies often have networks with backbones rated at 100 megabits per second.
n114 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. n115 Hence, transmission times ranging from three n116 to
twenty minutes n117 to six hours n118 or more for a feature length film are
readily achievable, depending upon the users' precise circumstances. n119
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n112 Tr. (Shamos) at 95.
n113 Tr. (Shamos) at 89-90, 98; (Peterson) at 865; (Pavlovich) at 943.
n114 Tr. (Shamos) at 90; (Felten) at 772; (Peterson) at 879.
n115 See, e.g., Tr. (Peterson) at 861, 875-76.
n116 Id. (Shamos) at 87-88.
n117 Id.
n118 Id. at 77.
n119 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
At trial, defendants repeated, as if it were a mantra, the refrain [**40]
that plaintiffs, as they stipulated, n120 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. n121
While the simultaneous electronic exchange of the two movies took approximately
six hours, n122 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. n123 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. n124 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. n125
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n120 Tr. (Schumann) at 334-36.
n121 Tr. (Shamos) at 68-76.
n122 Id. at 76-77.
n123 Ex. AYY (Reider Dep.) at 98-101; see also id. at 121-23.
n124 Ex. 116B.
n125 Tr. (Reider) at 661.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n126 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n126 Tr. (King) at 418.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n127
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n127 Id. at 420.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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." n128
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n128 WIPO Copyright Treaty, Apr. 12, 1997, Art. 11, S. Treaty Doc. No. 105-17
(1997), available at 1997 WL 447232.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n129 The DMCA was
enacted in October 1998 as the culmination of this process. [**45] n130
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n129 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.
n130 See generally S. REP. No. 105-190, 105th Cong., 2d Sess. ("SENATE REP.
"), at 2-8 (1998).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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." n131 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." n132 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. n133
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n131 H.R. REP. No. 105-551(I), 105th Cong., 2d Sess. ("JUDICIARY COMM. REP.
"), at 17 (1998).
n132 Id. at 18.
n133 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
B. Posting of DeCSS
1. Violation of Anti-Trafficking [**47] Provision
Section 1201(a)(2) of the Copyright Act, part of the DMCA, provides
that:
"No person shall . . . offer to the public, provide or otherwise
traffic in any technology . . . that--
"(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]." n134
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n134 17 U.S.C. § 1201(a)(2). See also 1 NIMMER § 12A.03[1][a], at 12A-16.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n135
"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," n136 so DeCSS clearly is a means of circumventing a
technological access control measure. n137 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n135 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). [**49]
n136 17 U.S.C. § 1201(a)(3)(A).
n137 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**50]
a. Section 1201(a)(2)(A)
(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."
n138 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. n139
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n138 Id. § 1201(a)(3)(B).
n139 RealNetworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889, No.
C99-2070P, 2000 WL 127311, *9 (W.D. Wash. Jan. 18, 2000).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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:
"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."
n140
Further, the House Commerce Committee made clear that measures based on
encryption or scrambling "effectively control" access to copyrighted works, n141
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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n140 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).
[**53]
n141 H.R. REP. No. 105-551(II), 105th Cong., 2d Sess. ("COMMERCE COMM. REP.
"), at 39 (1998).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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
effectively controls access to plaintiffs' copyrighted works. n142
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n142 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n143 Hence, absent satisfaction of a statutory
exception, defendants clearly violated Section 1201(a)(2)(A) by posting DeCSS to
their web site.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n143 Tr. (Johansen) at 619; (Corley) 833-34.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
b. Section 1201(a)(2)(B)
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.
c. The Linux Argument
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. n144 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n144 Def. Post-Trial Mem. at 2.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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 . . . ." n145 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. n146 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n145 1 NIMMER § 12A.03[A], at 12A-15 (1999 Supp.).
n146 See id. § 12A.03[B], at 12A-25 to 12A-26.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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.
2. 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. n147 In any
case, all of their assertions are entirely without merit.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n147 See Def. Post-Trial Mem. at 13.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
a. Reverse engineering
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 n148 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 . . .
." n149 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. n150 This contention fails.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n148 17 U.S.C. §§ 1201(f)(1), (2).
n149 Id. § 1201(f)(3).
n150 Def. Post-Trial Mem. at 13-15.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n151 These defendants, however, did not post
DeCSS "solely" to achieve interoperability with Linux or anything else.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n151 COMMERCE COMM. REP. at 43.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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.
b. Encryption research
Section 1201(g)(4) provides in relevant part that:
"Notwithstanding the provisions of subsection (a)(2), it is not a
violation of that subsection for a person to--
"(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)."
n152
Paragraph (2) in relevant part permits circumvention of technological measures
in the course of good faith encryption research if:
"(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;
"(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 . . .
." n151
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. n152
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n152 17 U.S.C. § 1201(g)(4).
n151 Id. § 1201(g)(2).
n152 Id. § 1201(g)(3).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Neither of the defendants remaining in this case was or is involved in good
faith encryption research. n153 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). n154
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n153 Ex. 96 (Corley Dep.) at 33.
n154 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**63] c. Security testing
Defendants contended earlier that their actions should be considered exempt
security testing under Section 1201(j) of the statute. n155 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." n156
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n155 Def. Mem. in Opp. to Prelim. Inj. (DI 11) at 11-12.
n156 Id. § 1201(j)(1).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n157
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n157 Like Section 1201(g), moreover, Section 1201(j) provides no defense to a
Section 1201(b) claim.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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,
n158 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n158 17 U.S.C. § 107.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The use of technological means of controlling access to a copyrighted work
may affect the ability to make fair uses [**65] of the work. n159 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. n160 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n159 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]
n160 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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." n161 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n161 17 U.S.C. § 107.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n162 And it
struck a balance among the competing interests.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n162 See, e.g., COMMERCE COMM. REP. 25-26.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**68] [*323]
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. . . ." n163 By doing so, it
left "the traditional defenses to copyright infringement, including fair use, .
. . fully applicable" provided "the access is authorized." n164
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n163 JUDICIARY COMM. REP. 18.
n164 Id.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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). n165
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n165 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 <http://www.loc.gov/copyright/1201/anticirc.html> (visited July
28, 2000).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n166
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n166 17 U.S.C. §§ 1201(d), (f), (g), (j).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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]
n167 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n167 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n168 But Sony has no application here.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n168 Id. at 443, 446.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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." n169 Indeed,
[*324] Congress explicitly noted that Section 1201 does not incorporate Sony.
n170
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n169 RealNetworks, Inc., 2000 WL 127311, at *8 (quoting 1 NIMMER § 12A.18[B],
at 12A-130) (internal quotation marks omitted). [**72]
n170 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 . . . .
").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n171 Answering this question requires careful consideration
of the nature and types of linking.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n171 17 U.S.C. § 1201(a)(2).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n172 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. n173 Web pages can be designed to link to other web
pages on the same site or to web pages maintained by different sites. n174
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n172 Tr. (Schumann) at 275-76.
n173 Id. at 261-62.
n174 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n175 To "traffic" in something is to engage in dealings in
it, n176 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. n177 To "offer" is to present or
hold it out for consideration. n178 The phrase "or otherwise traffic in"
modifies and gives [**76] meaning to the words "offer" and "provide." n179 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n175 17 U.S.C. § 1201(a)(2).
n176 See 2 THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 3372 (1971).
n177 See 2 id. 2340.
n178 See 1 id. 1979.
n179 See, e.g., Strom v. Goldman, Sachs & Co., 202 F.3d 138, 146-47 (2d Cir.
1999).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n180 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n180 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III. The First Amendment
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," n181 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." n182 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n181 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]
n182 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n183
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n183 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n184
[*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. n185 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] n186 But that conclusion still
leaves for determination the level of scrutiny to be applied in determining the
constitutionality of regulation of computer code.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n184 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).
n185 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).
n186 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**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 . . . ." n187 "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." n188 In consequence, content based restrictions on speech
are permissible only if they serve compelling state interests by the least
restrictive means available. n189
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n187 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).
n188 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.
n189 Sable Comm. of Cal., Inc. v. FCC, 492 U.S. at 126.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**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. n190
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n190 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)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n191 Even if conduct contains an
expressive element, its nonspeech aspect need not be ignored. n192 "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." n193
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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n191 See, e.g., United States v. O'Brien, 391 U.S. at 376.
n192 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]
n193 391 U.S. at 376.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n194 But this would
be a unidimensional approach to a more textured reality and entirely too facile.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n194 Def. Post-Trial Mem. at 15-16.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**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." n195 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n195 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n196
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n196 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n197 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. n198 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] n199
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n197 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986).
n198 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).
n199 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").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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:
"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." n200
Moreover, "to satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government's interests." n201 "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.'" n202
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n200 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).
n201 Turner Broadcasting System, Inc., 512 U.S. at 662; see also Hill, 120 S.
Ct. at 2494.
n202 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)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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 n203 and from the
significance to our economy of trade in copyrighted materials. n204 Indeed, the
Supreme Court has made clear that copyright protection itself is "the engine of
free expression." n205 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. n206
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n203 U.S. CONST., art. I, § 8 (Copyright Clause). [**95]
n204 COMMERCE COMM. REP. 94-95; SENATE REP. 21-22, 143.
n205 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558,
85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985).
n206 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
This analysis finds substantial support in the principal case relied upon by
defendants, Junger v. Daley. n207 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." n208 Indeed, it went on to indicate that the pertinent
standard of review was that established in United States v. O'Brien, n209 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. n210
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n207 209 F.3d 481 (6th Cir. 2000).
n208 Id. at 485.
n209 391 U.S. at 377. [**97]
n210 209 F.3d at 485.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n211
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n211 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n212 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. n213
For obvious reasons, then, a propagated outbreak epidemic, all other things
being equal, can be far more difficult to control.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n212 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)
<http://www.sciam.com/1197issue/1197kephart.html>.
n213 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n214
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n214 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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.
n215 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n215 See, e.g., Guido Calabresi & Jeffrey O. Cooper, New Directions in Tort
Law, 30 VAL. U. L. REV. 859, 870-72 (1996).
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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. n216 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.
n217
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n216 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]
n217 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
2. Prior Restraint
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." n218 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, n219 sometimes by [*334] characterizing the expression as
unprotected n220 and on other occasions finding the restraint justified despite
its presumed invalidity. n221 Moreover, the prior restraint doctrine, which has
expanded far beyond the Blackstonian model n222 that doubtless informed the
understanding of the Framers of the First Amendment, n223 has been criticized as
filled with "doctrinal ambiguities and inconsistencies resulting from the
absence of any detailed judicial analysis of [its] true rationale" n224 and, in
one case, even as "fundamentally unintelligible." n225 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. n226
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n218 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]
n219 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).
n220 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]
n221 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).
n222 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (1769).
n223 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).
n224 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).
n225 John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409,
419 (1983). [**109]
n226 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The classic prior restraint cases were dramatically different from this one.
Near v. Minnesota n227 involved a state procedure for abating scandalous and
defamatory newspapers as public nuisances. New York Times Co. v. United States
n228 dealt with an attempt to enjoin a newspaper from publishing [**110] an
internal government history of the Vietnam War. Nebraska Press Association v.
Stuart n229 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n227 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).
n228 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).
n229 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n230 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n230 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.").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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." n231
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n231 Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in
Intellectual Property Cases, 48 DUKE L.J. 147, 210 & n.275 (1998).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n232 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. n233
Accordingly, the Court holds that the prior restraint doctrine does not require
denial of an injunction in this case.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n232 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.
n233 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n234 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. n235
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n234 Def. Post-Trial Mem. at 22-24.
n235 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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." n236
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.'" n237 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." n238 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. n239 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 . . . .'" n240 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." n241
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n236 Broadrick, 413 U.S. at 610.
n237 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)).
n238 Gooding, 405 U.S. at 521.
n239 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)).
n240 120 S. Ct. at 489 (quoting Ferber, 458 U.S. at 770 (quoting Broadrick,
413 U.S. at 615)). [**117]
n241 Broadrick, 413 U.S. at 612.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n242 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. n243
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n242 Tr. (King) at 441.
n243 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n244 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. n245
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n244 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]
n245 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n246
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n246 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n247
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n247 17 U.S.C. § 1201(g).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**124]
Accordingly, defendants will not be heard to mount an overbreadth challenge
to the DMCA in this context.
4. Vagueness
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. n248
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n248 Def. Post-Trial Mem. at 24.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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." n249 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. n250 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n249 Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495, 71 L. Ed. 2d
362, 102 S. Ct. 1186 (1982).
n250 See 17 U.S.C. § 1201(a)(2)(A).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
C. Linking
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" n251--is a
somewhat closer call.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n251 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)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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." n252 They "are the mainstay of the Internet
[**128] and indispensable to its convenient access to the vast world of
information." n253 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. n254 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n252 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]
n253 Richard Raysman & Peter Brown, Recent Linking Issues, N.Y.L.J., Feb. 8,
2000, p. 3, col. 1.
n254 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n255 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.
n256 A similar approach would minimize any chilling effect here.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n255 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).
n256 418 U.S. 323, 347-38, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n257 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n257 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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, n258 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n258 Tr. (Corley) at 820.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
IV. Relief
A. Injury to Plaintiffs
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." n259 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n259 17 U.S.C. § 1203(a).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
They begin with the assertion that plaintiffs have failed to prove that
decrypted motion pictures actually are available. n260 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. n261
The Court finds that plaintiffs overwhelmingly have established a clear threat
of injury by reason of defendants' violation of the statute.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n260 Def. Post-Trial Mem. at 27-28.
n261 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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. n262 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. n263 These statements, however, were
[**136] attempts to "spin" public opinion. n264 They do not now reflect the
actual state of affairs or the studios' actual views, if they ever did.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n262 Def. Post-Trial Mem. at 28.
n263 Id. at 28-29.
n264 See, e.g., Ex. AYZ (Hunt Dep.) at 94-104.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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." n265 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 n266 and that
the apparent availability of pirated motion pictures shot up so dramatically
upon the introduction of DeCSS. n267
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n265 Id. 30.
n266 Ex. 113.
n267 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**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 . . . ." n268 Where statutes in substance so
provide, injunctive relief is appropriate if there is a reasonable likelihood of
future violations absent such relief n269 and, in cases brought by private
plaintiffs, if the plaintiff lacks an adequate remedy at law. n270
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n268 17 U.S.C. § 1203(b)(1).
n269 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]
n270 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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, n271 i.e., injury
for which damages are not an adequate remedy. n272 The Court therefore holds
that the traditional requirements for issuance of a permanent injunction have
been satisfied. Yet there remains another point for consideration.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n271 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).
n272 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.
")
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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." n273 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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n273 Religious Tech. Ctr. v. Netcom On-Line Comm. Servs., Inc., 923 F. Supp.
1231, 1256 (N.D. Cal. 1995).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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." n274 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 n275 and declaratory relief will issue simultaneously
with this opinion.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n274 Com-Share, Inc. v. Computer Complex, Inc., 338 F. Supp. 1229, 1239 (E.D.
Mich. 1971).
n275 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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n276 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. n277 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. n278
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n276 17 U.S.C. § 1203(b)(4)-(b)(5).
n277 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).
n278 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**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. n279 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.
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n279 The chief factual issue actually litigated at trial was the speed with
which decrypted files could be transmitted over the Internet and other networks.
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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.
Dated: August 17, 2000
Lewis A. Kaplan
United States District Judge