United States District Court,
S.D. New York.
UNIVERSAL CITY STUDIOS, INC., et al., Plaintiffs,
v.
Shawn C. REIMERDES, et al., Defendants.
No. 00 Civ. 0277 (LAK).
Aug. 17, 2000.
As Amended Sept. 6, 2000.
Motion picture studios brought action under Digital
Millennium Copyright Act (DMCA) to
enjoin Internet web-site owners from posting for downloading computer software
that decrypted digitally encrypted movies on digital versatile disks (DVDs) and
from including hyperlinks to other web-sites that made decryption software
available. The District Court, Kaplan, J., held that: (1) posting decryption
software violated DMCA provision prohibiting trafficking in technology that
circumvented measures controlling access to copyrighted works; (2) posting
hyperlinks to other web-sites offering decryption software violated DMCA; (3)
DMCA anti-trafficking provision was content-neutral as applied to computer
program; (4) DMCA did not violate First Amendment as applied to defendants and decryption software; (5) defendants
failed to establish anti- trafficking provision was overly broad on grounds
that it prevented noninfringing fair use of movies; (6) application of
anti-trafficking provision to enjoin defendants from hyper-linking to other
web-sites offering decryption software did not violate First Amendment; and (7)
plaintiffs were entitled to injunction enjoining defendants from posting
decryption software or hyperlinking to other web-sites that made software
available.
So ordered.
*302
Leon P. Gold, Jon
A. Baumgarten, Charles
S. Sims, Scott
P. Cooper, William
M. Hart, Michael
M. Mervis, Carla
M. Miller, Proskauer Rose LLP, New York City, for
Plaintiffs.
Martin
Garbus, George
E. Singleton, David
Y. Atlas, Edward Hernstadt, Frankfurt, Garbus,
Klein & Selz, P.C., New York City, for Defendants.
OPINION
KAPLAN, District Judge.
Contents
I. The Genesis of the
Controversy ....................................... 305
A. The Vocabulary of this Case
..................................... 305
1. Computers and Operating Systems
............................ 305
2. Computer Code
.............................................. 305
3. The Internet and the World Wide Web
........................ 306
4.
Portable Storage Media ..................................... 307
5. The Technology Here at Issue
............................... 308
B. Parties
......................................................... 308
C. The Development of DVD and CSS
.................................. 309
D. The Appearance of DeCSS
......................................... 311
E. The Distribution of DeCSS
....................................... 311
F. The Preliminary Injunction and Defendants'
Response ............. 312
G. Effects on Plaintiffs
........................................... 313
II. The Digital Millennium
Copyright Act ................................. 315
A. Background and Structure of the Statute
......................... 315
B. Posting of DeCSS
................................................ 316
1. Violation of Anti-Trafficking Provision
.................... 316
a. Section 1201(a)(2)(A) ..................................
317
(1) CSS
Effectively Controls Access to Copyrighted Works 317
(2)
DeCSS Was Designed Primarily to Circumvent CSS ..... 318
b. Section 1201(a)(2)(B)
.................................. 319
c. The Linux Argument
..................................... 319
2. Statutory Exceptions
....................................... 319
a. Reverse engineering
.................................... 319
b. Encryption research
.................................... 320
c. Security testing
....................................... 321
d. Fair use
............................................... 321
C. Linking to Sites Offering DeCSS
................................. 324
III. The First Amendment
.................................................. 325
A. Computer Code and the First Amendment
........................... 326
B. The Constitutionality of the DMCA's
Anti-Trafficking Provision .. 327
1. Defendants' Alleged Right to Disseminate
DeCSS ............. 327
2. Prior Restraint
............................................ 333
3. Overbreadth ................................................
336
4. Vagueness
.................................................. 339
C. Linking
......................................................... 339
IV. Relief
............................................................... 341
A. Injury to Plaintiffs
............................................ 341
B. Permanent Injunction and Declaratory Relief
..................... 342
V. Miscellaneous
Contentions ............................................ 345
VI. Conclusion
........................................................... 345
*303 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 DeCSS on their Internet web site, thus making
it readily available to much of the world.
Plaintiffs promptly brought this action under the Digital Millennium
Copyright Act (the "DMCA") [FN1] to enjoin
defendants from posting DeCSS and to prevent them from electronically
"linking" their site to others that post DeCSS. Defendants responded
with what they termed "electronic civil disobedience"--increasing
their efforts to link their web site to a large number of *304 others
that continue to make DeCSS available.
FN1. 17
U.S.C. § 1201 et seq.
Defendants contend that their actions do not
violate the DMCA and, in any case, that the
DMCA, as applied to computer programs, or code, violates the First Amendment. [FN2] This is the Court's decision after trial,
and the decision may be summarized in a nutshell.
FN2. Shortly after
the commencement of the action, the Court granted plaintiffs' motion for a
preliminary injunction barring defendants from posting DeCSS. Universal
City Studios, Inc. v. Reimerdes,
82 F.Supp.2d 211 (S.D.N.Y.2000). Subsequent motions to expand the
preliminary injunction to linking and to vacate it were consolidated with the
trial on the merits. This opinion
reflects the Court's findings of fact, conclusions of law and decision on the
merits.
The Court notes the receipt of a number of amicus
submissions. Although many were filed
by defendants' counsel on behalf of certain amici, and therefore were of
debatable objectivity, the amicus submissions considered as a group were
helpful.
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 anti-circumvention measures would extend the copyright monopoly
inappropriately and prevent many fair uses of copyrighted material.
Congress struck a balance. The compromise it reached, depending upon
future technological and commercial developments, may or may not prove ideal. [FN3] But the solution
it enacted is clear. The potential
tension to which defendants point does not absolve them of liability under the
statute. There is no serious question that defendants' posting of DeCSS
violates the DMCA.
FN3. David Nimmer, A
Riff on Fair Use in the Digital Millennium
Copyright
Act,
148 U.PA.L.REV. 673, 739-41 (2000) (hereinafter A
Riff on Fair Use ).
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. 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 .... consist[ing] of central processing components ... and
mass data storage .... certain peripheral input/output devices ..., and an
operating system." Personal
computers ("PCs") are computers designed for use by one person at a
time. "[M]ore powerful, more
expensive computer systems known as 'servers' ... are designed to provide data,
services, and functionality through a digital network to multiple users." [FN4]
FN4. United
States v. Microsoft Corp.,
84 F.Supp.2d 9, 13 (D.D.C.1999). The quotations are from a finding of fact
in the Microsoft case of which the Court, after notice to and without
objection by the parties, takes judicial notice. Tr. at 1121. Subsequent
references to Microsoft findings reflect similar instances of judicial notice
without objection.
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 perform specific
user-oriented tasks.... Because it supports applications while interacting more
closely with the PC system's hardware, the operating system is said to serve as
a 'platform.' " [FN5]
FN5. United
States v. Microsoft Corp.,
84 F.Supp.2d at 13.
Microsoft Windows ("Windows") is an
operating system released by Microsoft Corp. It is the most widely used
operating system for PCs in the United States, and its versions include Windows
95, Windows 98, Windows NT and Windows 2000.
Linux, which was and continues to be
developed through the open source model of software development, [FN6] also is an
operating system. [FN7] It can be run on a PC as an alternative to
Windows, although the extent to which it is so used is limited. [FN8] Linux is more
widely used on servers. [FN9]
FN6. Open source is a
software development model by which the source code to a computer program is
made available publicly under a license that gives users the right to modify
and redistribute the program. The
program develops through this process of modification and redistribution and through a process by which users download
sections of code from a web site, modify that code, upload it to the same web
site, and merge the modified sections into the original code. Trial transcript ("Tr.") (Craig)
at 1008.
FN7. Tr. (Pavlovich)
at 936.
FN8. Tr. (DiBona) at
994-95.
FN9. Id.
2. Computer Code
"[C]omputers come down to one basic
premise: They operate with a series of
on and off switches, using two digits in the binary (base 2) number system-- 0
(for off) and 1 (for on)." [FN10] All data and instructions input to or
contained in computers therefore must be reduced the numerals 1 and 0. [FN11]
FN10. THE NEW YORK
PUBLIC LIBRARY, SCIENCE DESK REFERENCE 496 (1995) (hereinafter SCIENCE DESK
REFERENCE); see also Tr.
(Felten) at 758- 59; Hon. Shira A.
Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task? 34 B.C.L.REV.
327, 333-35 (2000).
FN11. Tr. (Felten)
at 759; Scheindlin & Rabkin, 34
B.C.L.REV. at 333-35.
"The smallest unit of memory in a
computer," a bit, "is a switch with a value of *306 0(off) or
1(on)." [FN12] A group of eight bits is called a byte and represents a
character--a letter or an integer. [FN13] A kilobyte ("K") is 1024 bytes, a
megabyte ("MB") 1024 kilobytes, and a gigabyte ("GB") 1024
megabytes. [FN14]
FN12. SCIENCE DESK
REFERENCE, at 501.
FN13. Id.
FN14. Id.
Some highly skilled human beings can reduce
data and instructions to strings of 1's and 0's and thus program computers to
perform complex tasks by inputting commands and data in that form. [FN15] But it would be inconvenient, inefficient and, for most people, probably
impossible to do so. In consequence,
computer science has developed programming languages. These languages, like other written languages, employ symbols
and syntax to convey meaning. The text
of programs written in these languages is referred to as source code. [FN16] And whether
directly or through the medium of another program, [FN17] the sets of instructions written in programming
languages-- the source code--ultimately are translated into machine
"readable" strings of 1's and 0's, known in the computer world as
object code, which typically are executable by the computer. [FN18]
FN15. See Tr.
(Felten) at 759-60.
FN16. The Court's
findings with respect to the definitions of source code and object code are
taken from the trial testimony of Robert Schumann, Tr. at 258, and Drs. Edward
Felten, Tr. at 738-39, 757-63, David S. Touretzky, Tr. at 1065-91, and Andrew
Appel, Tr. at 1096, and the deposition testimony of Dr. Harold Abelson, Ex. AZO
at 34-37, 45-49. See also Ex.
BBE.
FN17. Frequently,
programs written in such languages must be transformed or translated into
machine readable form by other programs known
as compilers.
FN18. This to some
degree is an oversimplification.
Object code often is directly executable by the computer into which it is
entered. It sometimes contains
instructions, however, that are readable only by computers containing a
particular processor, such as a Pentium processor, or a specific operating
system such as Microsoft Windows. In
such instances, a computer lacking the specific processor or operating system
can execute the object code only if it has an emulator program that simulates
the necessary processor or operating system or if the code first is run through
a translator program that converts it into object code readable by that
computer. Ex. BBE.
The distinction between source and object
code is not as crystal clear as first appears. Depending upon the programming language, source code may contain
many 1's and 0's and look a lot like object code or may contain many
instructions derived from spoken human language. Programming languages the source code for which approaches
object code are referred to as low level source code while those that are more
similar to spoken language are referred to as high level source code.
All code is human readable. As source code is closer to human language
than is object code, it tends to be
comprehended more easily by humans than object code.
3. The Internet and the World Wide Web
The Internet is "a global electronic
network, consisting of smaller, interconnected networks, which allows millions
of computers to exchange information over telephone wires, dedicated data
cables, and wireless links. The Internet links PCs by means of servers, which
run specialized operating systems and applications designed for servicing a
network environment." [FN19]
FN19. United
States v. Microsoft Corp.,
84 F.Supp.2d at 13.
Internet Relay Chat ("IRC") is a
system that enables individuals connected to the Internet to participate in
live typed discussions. [FN20] Participation in
an IRC discussion requires an IRC software program, which sends messages via
the Internet to the IRC server, which in turn broadcasts the messages to all
participants. The IRC *307
system is capable of supporting many separate discussions at once.
FN20. Tr. (Shamos)
at 67-68.
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 through a user's PC system but actually execute on a
server." [FN21]
FN21. United
States v. Microsoft Corp.,
84 F.Supp.2d at 13.
A web site is "a collection of Web pages
[published on the Web by an individual or organization] .... Most Web pages are
in the form of 'hypertext'; that is,
they contain annotated references, or 'hyperlinks,' to other Web pages. Hyperlinks can be used as cross-references
within a single document, between documents on the same site, or between
documents on different sites." [FN22]
FN22. Id. at
14.
A
home page is "one page on each Web site ... [that typically serves as] the
first access point to the site. The
home page is usually a hypertext document that presents an overview of the site
and hyperlinks to the other pages comprising the site." [FN23]
FN23. Id.
A Web client is "software that, when
running on a computer connected to the Internet, sends information to and
receives information from Web servers throughout the Internet. Web clients and servers transfer data using
a standard known as the Hypertext Transfer Protocol ('HTTP'). A 'Web browser' is a type of Web client
that enables a user to select, retrieve, and perceive resources on the Web. In
particular, Web browsers provide a way for a user to view hypertext documents
and follow the hyperlinks that connect them, typically by moving the cursor
over a link and depressing the mouse button." [FN24]
FN24. Id.
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. [FN25] For present purposes, however, we are
concerned principally with two more recent developments, CD-ROMs and digital
versatile disks, or DVDs.
FN25. Not too many
years ago, the most common transportable storage media were 5 1/4 inch flexible
magnetic disks. Their flexibility led
to their being referred to as "floppies." They have been replaced almost entirely with today's 3 1/2 inch
disks, which are enclosed in hard plastic housings and which therefore are not
flexible or "floppy." The
earlier name, however, has stuck.
A CD-ROM is a five-inch wide optical disk
capable of storing approximately 650 MB of data. To read the data on a CD-ROM, a computer must have a CD-ROM
drive.
DVDs are five-inch wide disks capable of
storing more than 4.7 GB of data. In
the application relevant here, they are used to hold full-length motion
pictures in digital form. They are the
latest technology for private home viewing of recorded motion pictures and
result in drastically improved audio and visual clarity and quality of motion
pictures shown on televisions or computer screens. [FN26]
FN26. Tr. (King) at
403-04.
*308 5. The Technology Here at
Issue
CSS, or Content Scramble System, is an access
control and copy prevention system for DVDs developed by the motion picture
companies, including plaintiffs. [FN27] It is an
encryption-based system that requires the use of appropriately configured hardware
such as a DVD player or a computer DVD drive to decrypt, unscramble and play
back, but not copy, motion pictures on DVDs. [FN28] The technology necessary to configure DVD players and
drives to play CSS-protected DVDs [FN29] has been licensed to hundreds of manufacturers in the
United States and around the world.
FN27. Tr. (Shamos)
at 24.
FN28. Id. at
24-25.
FN29. Such devices
are referred to subsequently as compliant.
DeCSS is a software utility, or computer
program, that enables users to break the CSS copy protection system and hence
to view DVDs on unlicensed players and make
digital copies of DVD movies. [FN30] The quality of
motion pictures decrypted by DeCSS is virtually identical to that of encrypted
movies on DVD. [FN31]
FN30. Tr. (Shamos)
at 25.
FN31. Tr. (Schumann)
at 273.
DivX is a compression program available for
download over the Internet. [FN32] It compresses
video files in order to minimize required storage space, often to facilitate
transfer over The Internet or other networks. [FN33]
FN32. Tr. (Ramadge)
at 911.
FN33. Id. at
911-12.
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. [FN34] Plaintiffs
produce and distribute a large majority of the motion pictures on DVDs on the
market today. [FN35]
FN34. Ex.
2.1-2.34; 3.1-3.34.
FN35. Tr. (King) at
404.
Defendant Eric Corley is viewed as a leader
of the computer hacker community and goes by the name Emmanuel Goldstein, after
the leader of the underground in George Orwell's classic, 1984. [FN36] He and his company, defendant 2600
Enterprises, Inc., together publish a magazine called 2600: The Hacker Quarterly, which Corley
founded in 1984, [FN37] and which is
something of a bible to the hacker community. [FN38] The name
"2600" was derived from the fact that hackers in the 1960's found
that the transmission of a 2600 hertz tone over a long distance trunk
connection gained access to "operator mode" and allowed the user to
explore aspects of the telephone system that were not otherwise accessible. [FN39] Mr. Corley chose
the name because he regarded it as a "mystical thing," [FN40]
commemorating something that he evidently admired. Not surprisingly, 2600:
The Hacker Quarterly has included articles on such topics as how to
steal an Internet domain name, [FN41] access other
people's e-mail, [FN42] intercept
cellular phone calls, [FN43] and break into the computer systems *309 at Costco
stores [FN44] and
Federal Express. [FN45] One issue contains a guide to the federal
criminal justice system for readers charged with computer hacking. [FN46] 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. [FN47]
FN36. Tr. (Corley)
at 787, 827.
FN37. Tr. (Corley)
at 777, 790, 795; Ex. 1.1, 1.2, 1.3,
1.4, 1.5, 1.6, 1.7, 1.8, 1.11, 1.12, 1.13, 1.14, 1.15, 1.16; 79 (Corley Dec.) § 1.
FN38. See Tr.
(Corley) at 781.
FN39. Tr. (Corley)
786-87.
FN40. Id. at
787.
FN41. Ex. 1.2
(Redomega Crim, How Domains Are Stolen, 2600: THE HACKER QUARTERLY, Summer 2000, at 43).
FN42. Ex. 1.16 (Schlork, Snooping via MS-Mail, 2600: THE HACKER QUARTERLY, Winter 1996-97, at
28).
FN43. Ex. 1.14
(Thomas Icom, Cellular Interception Techniques, 2600: THE HACKER
QUARTERLY, Spring 1995, at 23).
FN44. Ex. 1.12 (nux,
Fun at Costco, 2600: THE HACKER
QUARTERLY, Summer 1999, at 12).
FN45. Ex. 1.19 (PhranSys
Drak3, Hacking FedEx, 2600: THE
HACKER QUARTERLY, Autumn 1997, at 14).
FN46. Ex. 1.19
(Agent Steal, Busted! A Complete
Guide to Getting Caught, 2600: THE
HACKER QUARTERLY, Autumn 1997, at 6).
FN47. Tr. (Corley)
at 790; Ex. 52-54, 64, 79 (Corley Dec.)
§ 20; 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.
Prior to January 2000, when this action was commenced, defendants
posted the source and object code for DeCSS on the 2600.com web site, from
which they could be downloaded easily. [FN48] At that time,
2600.com contained also a list of links to other web sites purporting to post
DeCSS.
[FN49]
FN48. Tr. (Corley)
at 791; Ex. 28.
FN49. Tr. (Corley)
at 791, 829, 848; Ex. 28.
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 exhibition.
Subsequently, films are distributed to airlines and hotels, then to the
home market, then to pay television, cable and, eventually, free television
broadcast. The home market is
important to plaintiffs, as it represents a significant source of revenue. [FN50]
FN50. Tr. (King) at
402.
Motion pictures first were, and still are, distributed to the home
market in the form of video cassette tapes.
In the early 1990's, however, the major movie studios began to explore
distribution to the home market in digital format, which offered substantially
higher audio and visual quality and greater longevity than video cassette
tapes. [FN51] This technology, which in 1995 became what
is known today as DVD, [FN52] brought with
it a new problem-- increased risk of piracy by virtue of the fact that digital
files, unlike the material on video cassettes, can be copied without
degradation from generation to generation. [FN53] In consequence, the movie studios became
concerned as the product neared market with the threat of DVD piracy. [FN54]
FN51. Id. at
404, 468.
FN52. Id. at
408, 468, 470.
FN53. Id. at
404-05.
FN54. Id. at
404-05, 468-70.
Discussions among the studios with the goal
of organizing a unified response to the piracy threat began in earnest in late
1995 or early 1996. [FN55] They eventually
came to include representatives of the consumer electronics and computer
industries, as well as interested members of the public, [FN56] and focused on both legislative proposals and
technological solutions. [FN57] In 1996, Matsushita Electric Industrial Co.
("MEI") and Toshiba Corp., presented--and the studios adopted--CSS. [FN58]
FN55. Id. at
406.
FN56. Id. at
405-06, 471, 476-78.
FN57. Id. at
405, 470-71, 479.
FN58. Id. at
406-07, 502-04.
CSS involves encrypting, according to an
encryption algorithm, [FN59] the digital *310 sound and graphics 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.
FN59. An algorithm
is a recipe that contains instructions for completing a task. It can be expressed in any language, from
natural spoken language to computer programming language. Ex. AZO (Abelson Dep.) at 9-10.
As the motion picture companies did not
themselves develop CSS and, in any case, are not in the business of making DVD
players and drives, the technology for making compliant devices, i.e., devices
with CSS keys, had to be licensed to consumer electronics manufacturers. [FN60] In order to ensure that the decryption
technology did not become generally available and that compliant devices could
not be used to copy as well as merely to play CSS-protected movies, the
technology is licensed subject to strict security requirements. [FN61] Moreover, manufacturers may not, consistent
with their licenses, make equipment that would supply digital output that could
be used in copying protected DVDs. [FN62] Licenses to
manufacture compliant devices are granted on a royalty-free basis subject only
to an administrative fee. [FN63] At the time of trial, licenses had been
issued to numerous hardware and software manufacturers, including two companies
that plan to release DVD players for computers running the Linux operating
system.
[FN64]
FN60. The licensing function initially was performed by MEI and
Toshiba. Subsequently, MEI and Toshiba
granted a royalty free license to the DVD Copy Control Association ("DVD
CCA"), which now handles the licensing function. Tr. (King) at 485-86, 510;
Ex. XXY (Attaway Dep.) at 31.
The motion picture companies themselves license CSS from the DVD CCA.
Ex. XYY (Attaway Dep.) at 31-32.
FN61. See, e.g.,
Ex. AHV § § 5, 6.2.
FN62. Tr. (King) at
450-51, 492-93; Ex. XXY (Attaway Dep.)
at 61- 62; Ex. AHV.
FN63. The
administrative fee is one million yen, now about $9,200, for each
"membership category" selected by the licensee. Twelve membership categories are available,
and one or more are selected by a licensee depending on the use which the
licensee intends to make of the licensed technology. The membership categories are:
content provider, authoring studio, DVD disc replicator, DVD player
manufacturer, DVD-ROM drive manufacturer, DVD decoder manufacturer, descramble
module manufacturer, authentication chip manufacturer for DVD-ROM drive,
authenticator manufacturer for DVD decoder, integrated product manufacturer, and reseller. Ex. AJB, AIZ, AOV, AOU, AOQ.
FN64. Tr. (King) at
437-38; see also Tr. (Pavolvich)
at 961; Ex. BD.
With CSS in place, the studios introduced
DVDs on the consumer market in early 1997. [FN65] All or most of the
motion pictures released on DVD were, and continue to be, encrypted with CSS
technology. [FN66] Over 4,000 motion pictures now have been
released in DVD format in the United States, and movies are being issued on DVD
at the rate of over 40 new titles per month in addition to re-releases of
classic films. Currently, more than
five million households in the United States own DVD players, [FN67] and players are projected to be in ten percent of United
States homes by the end of 2000. [FN68]
FN65. Tr. (King) at
408-09.
FN66. Id. at
409.
FN67. Id. at
417-18.
FN68. Id. at
442.
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' revenue from the home video market. [FN69] Revenue from the home market, in *311
turn, makes up a large percentage of the studios' total distribution revenue. [FN70]
FN69. Revenue from
the distribution of DVDs makes up approximately 35 percent of Warner Brothers'
total worldwide revenue from movie distribution in the home video market. Id. at 403.
FN70. Distribution
in the home video market accounts for approximately 40 percent of Warner
Brothers' total income from movie distribution. Id.
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. [FN71] They used this information to create DeCSS,
a program capable of decrypting or "ripping" encrypted DVDs, thereby
allowing playback on non-compliant computers
as well as the copying of decrypted files to computer hard drives. [FN72] Mr. Johansen then
posted the executable code on his personal Internet web site and informed
members of an Internet mailing list that he had done so. [FN73] Neither Mr.
Johansen nor his collaborators obtained a license from the DVD CCA. [FN74]
FN71. Tr. (Johansen)
at 619-22, 633, 639.
FN72. Id. at
619-21, 634; (Schumann) at 246-48. Mr. Johansen testified that the
"De" in DeCSS stands for "decrypt." Tr. (Johansen) at 628.
FN73. Tr. (Johansen)
at 622-23, 638; Ex. 9 at
SCH-000846. Mr. Johansen did not post
the source code on his Web site. Tr.
(Johansen) at 635.
FN74. Tr. (Johansen)
at 620.
Although Mr. Johansen testified at trial that
he created DeCSS in order to make a DVD player that would operate on a computer
running the Linux operating system, [FN75] DeCSS is a Windows executable file; that is, it can
be executed only on computers running the Windows operating system. [FN76] Mr. Johansen explained the fact that he
created a Windows rather than a Linux program by asserting that Linux, at the
time he created DeCSS, did not support the file system used on DVDs. [FN77] Hence, it was necessary, he said, to decrypt the DVD on a
Windows computer in order subsequently to play the decrypted files on a Linux
machine. [FN78] Assuming that to be true, [FN79] however,
the fact remains that Mr. Johansen created DeCSS in the full knowledge that it
could be used on computers running Windows rather than Linux. Moreover, he was well aware that the files,
once decrypted, could be copied like any other computer files.
FN75. Id. at
620.
FN76. Id. at
621-22.
FN77. Id. at
621-22, 624; (Stevenson) at 214.
FN78. Tr. (Johansen)
at 623.
FN79. Substantial
questions have been raised both at trial and elsewhere as to the veracity of
Mr. Johansen's claim. See Ex.
CS, at S10006 ("Our analysis indicates
that the primary technical breakthroughs were developed outside of the Linux
development groups.").
In January 1999, Norwegian prosecutors filed
charges against Mr. Johansen stemming from the development of DeCSS. [FN80] The disposition of the Norwegian case does
not appear of record.
FN80. Tr. (Johansen)
at 626-27.
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. [FN81] A few other applications said to decrypt
CSS-encrypted DVDs also have appeared on the Internet. [FN82]
FN81. Ex. 97, 107,
126.
FN82. Tr.
(Stevenson) at 217-18, 226-29;
(Schumann) at 290, 338- 41;
(Johansen) at 641; (Reider) at
681-85. One, DOD (Drink or Die) Speed
Ripper, does not work with all DVDs that DeCSS will decrypt. Id.;
Ex.CS, at S10011; Ex. 9. Some of
these programs perform only a portion of what DeCSS does and must be used in
conjunction with others in order to decrypt the contents of a DVD. Tr.
(Schuman) at 290, 338-39. Some of
defendants' claims about these other means proved baseless at trial. See
Tr. (Pavlovich) at 965-68.
*312 In November 1999, defendants' web
site began to offer DeCSS for download. [FN83] It established
also a list of links to several web sites that purportedly "mirrored"
or offered DeCSS for download. [FN84] The links on defendants' mirror list fall
into one of three categories. By
clicking the mouse on one of these links, the user may be brought to a page on
the linked-to site on which there appears a further link to the DeCSS software. [FN85] If the user then
clicks on the DeCSS link, download of the software begins. This page may or may not contain content
other than the DeCSS link. [FN86] Alternatively,
the user may be brought to a page on the linked-to site that does not itself
purport to link to DeCSS, but that links, either directly or via a series of
other pages on the site, to another page on the site on which there appears a
link to the DeCSS software. [FN87] Finally, the user may be brought directly to
the DeCSS link on the linked-to site such that download of DeCSS begins
immediately without further user intervention. [FN88]
FN83. Tr. (Corley) at 791;
Ex. 28.
FN84. Tr. (Corley)
at 791, 829, 848; Ex. 28.
FN85. Tr. (Corley)
at 829-30, 845.
FN86. Id. at
831, 845.
FN87. Id. at
829-30, 845.
FN88. Id. at
830; (Shamos) at 38. As Mr. Corley testified, the download
process generally begins with the appearance of a dialog box, or small window,
prompting the user to confirm the location on the user's computer hard drive
where the downloaded software will be stored.
The actual download does not begin until the user provides the computer
with this information. Tr. (Corley) at
830. It is possible also to create a
link that commences the download immediately upon being clicked. See Tr. (Touretzky) at 1082-83.
F. The Preliminary Injunction and
Defendants' Response
The movie studios, through the Internet
investigations division of the Motion Picture
Association of America ("MPAA"), became aware of the availability of
DeCSS on the Internet in October 1999. [FN89] The industry
responded by sending out a number of cease and desist letters to web site
operators who posted the software, some of which removed it from their sites. [FN90] In January 2000,
the studios filed this lawsuit against defendant Eric Corley and two others. [FN91]
FN89. Tr. (Reider)
at 652.
FN90. Tr. (King) at
435, 548; (Reider) at 653; Ex. 55.
FN91. The other two
defendants entered into consent decrees with plaintiffs. Plaintiffs subsequently amended the
complaint to add 2600 Enterprises, Inc. as a defendant.
After a hearing at which defendants presented
no affidavits or evidentiary material, the Court granted plaintiffs' motion for
a preliminary injunction barring defendants from posting DeCSS. [FN92] At the conclusion of the hearing, plaintiffs
sought also to enjoin defendants from linking to other sites that posted DeCSS,
but the Court declined to entertain the application at that time in view of
plaintiffs' failure to raise the issue in their
motion papers. [FN93]
FN92. Preliminary
Injunction, Jan. 20, 2000 (DI 6); Universal
City Studios, Inc.,
82 F.Supp.2d 211.
FN93. Tr., Jan. 20,
2000 (DI 17) at 85.
Following the issuance of the preliminary
injunction, defendants removed DeCSS from the 2600.com web site. [FN94] In what they termed an act of
"electronic civil disobedience," [FN95] however, they continued to support links to other web
sites purporting to offer DeCSS for download, a list which had grown to nearly
five hundred by July 2000. [FN96] Indeed, they carried a banner *313
saying "Stop the MPAA" and, in a reference to this lawsuit,
proclaimed:
FN94. Tr. (Corley)
at 791; Ex. 51.
FN95. Tr. (Corley)
at 834; Ex. 96 (Corley Dep.) at 151-53.
FN96. Tr. (Corley)
at. 791; Ex. 79 (Corley Dec.) § 21;
126.
"We
have to face the possibility that we could be forced into submission. For that
reason it's especially important that as many of you as possible, all
throughout the world, take a stand and mirror these files." [FN97]
FN97. Ex. 106.
Thus, defendants obviously hoped to
frustrate plaintiffs' recourse to the judicial system by making effective
relief difficult or impossible.
At least some of the links currently on
defendants' mirror list lead the user to copies of DeCSS that, when downloaded
and executed, successfully decrypt a motion picture on a CSS-encrypted DVD. [FN98]
FN98. Tr. (Shamos)
at 36-42; (Schumann) at 272-73; 265-66 (defendants' stipulation that their
web site links to other sites containing executable copies of DeCSS).
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. [FN99] Downloading
is simple and quick--plaintiffs' expert did it in seconds. [FN100] The program in fact decrypts at least some
DVDs.
[FN101] Although the process is computationally
intensive, plaintiffs' expert decrypted a store-bought copy of Sleepless in
Seattle in 20 to 45 minutes. [FN102] The copy
is stored on the hard drive of the computer.
The quality of the decrypted film is virtually identical to that of
encrypted films on DVD. [FN103] The decrypted file can be copied like any other. [FN104]
FN99. Tr. (Shamos)
at 36-42; (Schumann) at 272-73.
FN100. Tr. (Shamos)
at 39-40; see also Ex. AYZ (Hunt
Dep.) at 18.
FN101. Tr. (Shamos)
at 41-42; (Schumann) at 272-73.
FN102. Tr. (Shamos)
at 41-42, 156.
FN103. Tr.
(Schumann) at 273; Ex. AYZ (Hunt Dep.)
at 26.
FN104. Tr. (Johansen)
at 628; see also Ex. AZN (Simons
Dep.) at 48.
The decryption of a CSS-protected DVD is only
the beginning of the tale, as the decrypted file is very large--approximately
4.3 to 6 GB or more depending on the length of the film [FN105]--and thus extremely cumbersome to transfer or to store on
portable storage media. One solution
to this problem, however, is DivX, a compression utility available on the
Internet that is promoted as a means of compressing decrypted motion picture
files to manageable size. [FN106]
FN105. Tr. (Shamos)
at 42; (Ramadge) at 900.
FN106. See
Tr. (Shamos) at 54-56; Ex. 112-13.
DivX is capable of compressing decrypted
files constituting a feature length motion picture to approximately 650 MB at a
compression ratio that involves little loss of quality. [FN107] While the compressed sound and graphic files
then must be synchronized, a tedious process that took plaintiffs' expert
between 10 and 20 hours, [FN108] the task
is entirely feasible. Indeed, having
compared a store-bought DVD with portions of a copy compressed and synchronized
with DivX (which often are referred to as "DivX'd" motion pictures),
the Court finds that the loss of quality, at least *314 in some cases, is imperceptible or so nearly
imperceptible as to be of no importance to ordinary consumers. [FN109]
FN107. DivX effects
what is known as "lossy" compression--it achieves its reduction in
file size by eliminating some of the data in the file being compressed. The trick, however, is that it seeks to do
so by eliminating data that is imperceptible, or nearly so, to the human
observer. Tr. (Shamos) at 43-44; (Ramadge) at 882-98.
FN108. Tr. (Shamos)
at 51.
FN109. Defendants
produced an expert whose DivX of a DeCSS decrypted file was of noticeably lower
quality than that of plaintiffs' expert's DivX'd film. The reasons for the difference are not
clear. The Court is satisfied,
however, that it is possible to make high quality 650 MB DivX'd copies of many
films.
The fact that DeCSS-decrypted DVDs can be
compressed satisfactorily to 650 MB is very important. A writeable CD-ROM can hold 650 MB. [FN110] 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. [FN111] Indeed, even if
one wished to use a lower compression ratio to improve quality, a film easily
could be compressed to about 1.3 GB and burned onto two CD-ROMs. But the creation of pirated copies of copyrighted
movies on writeable CD-ROMs, although significant, is not the principal focus
of plaintiffs' concern, which is transmission of pirated copies over the
Internet or other networks.
FN110. Tr.
(Ramadge) at 930.
FN111. Tr. (Shamos)
at 56-57.
The copies do not require resynchronization of the sound
and graphics.
Network transmission of decrypted motion
pictures raises somewhat more difficult issues because even 650 MB is a very
large file that, depending upon the circumstances, may take a good deal of time
to transmit. But there is tremendous
variation in transmission times. Many
home computers today have modems with a rated capacity of 56 kilobits per
second. DSL lines, which increasingly
are available to home and business users, offer transfer rates of 7 megabits
per second. [FN112] Cable modems also offer increased
bandwidth. Student rooms in many
universities are equipped with network connections
rated at 10 megabits per second. [FN113] Large institutions such as universities and
major companies often have networks with backbones rated at 100 megabits per
second. [FN114] While effective transmission times generally
are much lower than rated maximum capacities in consequence of traffic volume
and other considerations, there are many environments in which very high
transmission rates may be achieved. [FN115] Hence, transmission times ranging from three
[FN116]
totwenty minutes [FN117] to six hours [FN118] or more for a feature length film are readily achievable,
depending upon the users' precise circumstances. [FN119]
FN112. Tr. (Shamos)
at 95.
FN113. Tr. (Shamos)
at 89-90, 98; (Peterson) at 865; (Pavlovich) at 943.
FN114. Tr. (Shamos)
at 90; (Felten) at 772; (Peterson) at 879.
FN115. See,
e.g., Tr. (Peterson) at 861, 875-76.
FN116. Id.
(Shamos) at 87-88.
FN117. Id.
FN118. Id.
at 77.
FN119. It should be
noted here that the transmission time achieved by plaintiff's expert, Dr.
Shamos, almost certainly was somewhat skewed because the work was done late at
night on a university system after the close of the regular school year,
conditions favorable to high effective transmission rates due to low traffic on
the system.
At trial, defendants repeated, as if it were
a mantra, the refrain that plaintiffs, as they stipulated, [FN120] have no
direct evidence of a specific occasion on which any person decrypted a
copyrighted motion picture with DeCSS and transmitted it over the
Internet. But that is unpersuasive.
Plaintiffs' expert expended very little effort to find someone in an IRC chat
room who exchanged a compressed, decrypted copy of The Matrix, one of
plaintiffs' copyrighted motion pictures, for a *315 copy of Sleepless
in Seattle. [FN121] While the simultaneous electronic exchange
of the two movies took approximately six hours, [FN122] the computers required little operator attention during
the interim. An MPAA investigator
downloaded between five and ten DVD-sourced movies over the Internet after
December 1999. [FN123] At least one web site contains a list of 650
motion pictures, said to have been decrypted and compressed with DivX, that
purportedly are available for sale, trade or free download. [FN124] And although the
Court does not accept the list, which is hearsay, as proof of the truth of the
matters asserted therein, it does note that advertisements for decrypted
versions of copyrighted movies first appeared on the Internet in substantial
numbers in late 1999, following the posting of DeCSS. [FN125]
FN120. Tr.
(Schumann) at 334-36.
FN121. Tr. (Shamos)
at 68-76.
FN122. Id.
at 76-77.
FN123. Ex. AYY
(Reider Dep.) at 98-101; see also
id. at 121-23.
FN124. Ex. 116B.
FN125. Tr. (Reider)
at 661.
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 in pirated copies a growing threat.
These circumstances have two major
implications for plaintiffs. First,
the availability of DeCSS on the Internet effectively has compromised
plaintiffs' system of copyright protection for DVDs, requiring them either to
tolerate increased piracy or to expend resources to develop and implement a
replacement system unless the availability of DeCSS is terminated. [FN126] It is analogous to the publication of a bank
vault combination in a national newspaper.
Even if no one uses the combination to open the vault, its mere
publication has the effect of defeating the bank's security system, forcing the
bank to reprogram the lock.
Development and implementation of a new DVD copy protection system,
however, is far more difficult and costly than reprogramming a combination lock
and may carry with it the added problem of rendering the existing installed base of compliant DVD
players obsolete.
FN126. Tr. (King)
at 418.
Second, the application of DeCSS to copy and
distribute motion pictures on DVD, both on CD-ROMs and via the Internet,
threatens to reduce the studios' revenue from the sale and rental of DVDs. It
threatens also to impede new, potentially lucrative initiatives for the
distribution of motion pictures in digital form, such as video-on-demand via
the Internet. [FN127]
FN127. Id.
at 420.
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 by authors
in connection with the exercise of their rights under this Treaty or the Berne
Convention and that restrict acts, in respect of their works, which are not
authorized by the authors concerned or permitted by law." [FN128]
FN128. WIPO
Copyright Treaty, Apr. 12, 1997, Art. 11, S. Treaty Doc. No. 105-17 (1997),
available at 1997 WL 447232.
The adoption of the WIPO Copyright Treaty
spurred continued Congressional attention to the adaptation of the law of
copyright to the digital age. Lengthy
hearings involving a broad range of interested parties both preceded and
succeeded the Copyright Treaty. As
noted above, a critical focus of Congressional consideration of the legislation
was the conflict between those who opposed anti-circumvention measures as
inappropriate extensions of copyright and impediments to fair use and those who
supported them as essential to proper protection of copyrighted materials in
the digital age. [FN129] The DMCA was
enacted in October 1998 as the culmination of this process. [FN130]
FN129. There is an
excellent account of the legislative history of the
statute. Nimmer, A
Riff on Fair Use,
148 U.PA.L.REV. at 702-38.
FN130. See
generally S.REP. NO. 105-190, 105th Cong., 2d Sess. ("SENATE
REP."), at 2-8 (1998).
The DMCA contains two principal
anticircumvention provisions. The
first, Section
1201(a)(1), governs "[t]he act of
circumventing a technological protection measure put in place by a copyright
owner to control access to a copyrighted work," an act described by Congress
as "the electronic equivalent of breaking into a locked room in order to
obtain a copy of a book." [FN131] The second, Section
1201(a)(2), which is the focus of this case,
"supplements the prohibition against the act of circumvention in paragraph
(a)(1) with prohibitions on creating and making available certain technologies
... developed or advertised to defeat technological protections against
unauthorized access to a work." [FN132] As defendants are
accused here only of posting and linking to other sites posting DeCSS, and not
of using it themselves to bypass plaintiffs' access controls, it is principally
the second of the anticircumvention provisions that is at issue in this case. [FN133]
FN131. H.R.REP. NO.
105-551(I), 105th Cong., 2d Sess. ("JUDICIARY COMM.REP. "), at 17 (1998).
FN132. Id.
at 18.
FN133. Plaintiffs
rely also on Section
1201(b), which is very similar to Section
1201(a)(2) except that the former applies to
trafficking in means of circumventing protection offered by a technological
measure that effectively protects"a right of a copyright owner in a work
or a portion thereof" whereas the latter applies to trafficking in means
of circumventing measures controlling access to a work. See generally 1 MELVILLE B. NIMMER
& DAVID NIMMER, NIMMER ON COPYRIGHT ("NIMMER") § 12A.03 [C] (1999). In addition, as noted below, certain of the statutory exceptions
upon which defendants have relied apply only to Section
1201(a)(2).
B. Posting of DeCSS
1. Violation of Anti-Trafficking 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]." [FN134]
FN134. 17
U.S.C. § 1201(a)(2). See also
1 NIMMER § 12A.03[1] [a ], at
12A-16.
[1][2] In this case, defendants concededly offered and provided
and, absent a court order, would continue to offer and provide DeCSS to the
public by making it available for download on the 2600.com web site. DeCSS, a computer program, unquestionably
is "technology" within the meaning of the statute. [FN135] "[C]ircumvent
a technological measure" is defined to mean descrambling a scrambled work,
decrypting an encrypted work, or "otherwise to avoid, bypass, remove,
deactivate, or impair a technological measure, without the authority of the
copyright owner," [FN136] so DeCSS clearly is a means of circumventing a technological access control
measure. [FN137] In consequence, if CSS otherwise falls
within paragraphs (A), (B) or (C) of Section
1201(a)(2), and if none of the statutory
exceptions applies to their actions, defendants have violated and, unless
enjoined, will continue to violate the DMCA by posting DeCSS.
FN135. In their
Post-Trial Brief, defendants argue that "at least some of the members of
Congress" understood § 1201 to be
limited to conventional devices, specifically 'black boxes,' as opposed to
computer code. Def. Post-Trial Mem. at
21. However, the statute is clear that
it prohibits "any technology," not simply black boxes. 17
U.S.C. § 1201(a)(2) (emphasis added).
FN136. 17
U.S.C. § 1201(a)(3)(A).
FN137. Decryption
or avoidance of an access control measure is not "circumvention"
within the meaning of the statute unless it occurs "without the authority
of the copyright owner." 17
U.S.C. § 1201(a)(3)(A). Defendants posit that purchasers of a DVD acquire the
right "to perform all acts with it that are not exclusively granted to the
copyright holder." Based on this premise, they argue that DeCSS does not
circumvent CSS within the meaning of the
statute because the Copyright Act does not grant the copyright holder the right
to prohibit purchasers from decrypting.
As the copyright holder has no statutory right to prohibit decryption,
the argument goes, decryption cannot be understood as unlawful circumvention.
Def. Post-Trial Mem. 10-13. The
argument is pure sophistry. The DMCA
proscribes trafficking in technology that decrypts or avoids an access control
measure without the copyright holder consenting to the decryption or
avoidance. See JUDICIARY
COMM.REP. at 17-18 (fair use applies "where the access is authorized"). Defendants' argument seems to be a
corruption of the first sale doctrine, which holds that the copyright holder,
notwithstanding the exclusive distribution right conferred by Section 106(3) of
the Copyright Act, 17
U.S.C. § 106(3), is deemed by its "first sale" of a copy of the
copyrighted work to have consented to subsequent sale of the copy. See generally 2 NIMMER § § 8.11-8.12.
(1) CSS Effectively Controls Access to
Copyrighted Works
[3] During pretrial proceedings and at trial, defendants
attacked plaintiffs' Section
1201(a)(2)(A) claim, arguing that CSS, which is
based on a 40-bit encryption key, is a weak cipher that does not
"effectively control" access to plaintiffs' copyrighted works. They reasoned from this premise that CSS is not protected under this branch of the
statute at all. Their post- trial
memorandum appears to have abandoned this argument. In any case, however, the contention is indefensible as a matter
of law.
First, the statute expressly provides that
"a technological measure
'effectively controls access to a work' if the measure, in the ordinary
course of its operation, requires the application of information or a process
or a treatment, with the authority of the copyright owner, to gain access to a
work." [FN138] One cannot gain access to a CSS-protected work on a DVD without
application of the three keys that are required by the software. One cannot lawfully gain access to the keys
except by entering into a license with the DVD CCA *318 under authority
granted by the copyright owners or by purchasing a DVD player or drive containing
the keys pursuant to such a license.
In consequence, under the express terms of the statute, CSS
"effectively controls access" to copyrighted DVD movies. It does so, within the meaning of the
statute, whether or not it is a strong means of protection. [FN139]
FN138. Id. § 1201(a)(3)(B).
FN139. RealNetworks,
Inc. v. Streambox, Inc.,
No. 2:99CV02070, 2000 WL 127311, *9 (W.D.Wash. Jan.18, 2000).
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 owner under this title' .... The
practical, common-sense approach taken by H.R.2281 is that if, in the ordinary
course of its operation, a technology actually works in the defined ways to
control access to a work ... then the 'effectiveness' test is met, and the
prohibitions of the statute are applicable.
This test, which focuses on the function performed by the technology,
provides a sufficient basis for clear interpretation." [FN140]
FN140. HOUSE COMM.
ON JUDICIARY, SECTION-BY-SECTION ANALYSIS OF H.R.2281 AS PASSED BY THE UNITED
STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998 ("SECTION-BY-SECTION
ANALYSIS"), at 10 (Comm.Print
1998) (emphasis in original).
Further, the House Commerce Committee made clear that measures based on
encryption or scrambling "effectively control" access to copyrighted
works, [FN141] although it is well known that what may be encrypted or
scrambled often may be decrypted or unscrambled. As CSS, in the ordinary course of its operation--that is, when
DeCSS or some other decryption program is not employed--"actually
works" to prevent access to the protected work, it "effectively
controls access" within the contemplation of the statute.
FN141. H.R.REP. NO.
105-551(II), 105th Cong., 2d Sess. ("COMMERCE COMM.REP. "), at 39
(1998).
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. [FN142]
FN142. Defendants,
in a reprise of their argument that DeCSS is not a circumvention device, argue
also that CSS does not effectively control access to copyrighted works within
the meaning of the statute because plaintiffs authorize avoidance of CSS by
selling their DVDs. Def. Post- Trial Mem. 10-13. The argument is specious in this context as well. See supra note 137.
(2) DeCSS Was Designed Primarily to
Circumvent CSS
As CSS effectively controls access to
plaintiffs' copyrighted works, the only remaining question under Section
1201(a)(2)(A) is whether DeCSS was designed
primarily to circumvent CSS. The *319 answer is perfectly obvious. By
the admission of both Jon Johansen, the programmer who principally wrote DeCSS,
and defendant Corley, DeCSS was created solely for the purpose of decrypting
CSS--that is all it does. [FN143] Hence, absent satisfaction of a statutory
exception, defendants clearly violated Section
1201(a)(2)(A) by posting DeCSS to their web site.
FN143. Tr. (Johansen) at 619;
(Corley) 833-34.
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
[4] Perhaps the centerpiece of defendants' statutory position
is the contention that DeCSS was not created for the purpose of pirating
copyrighted motion pictures. Rather,
they argue, it was written to further the development of a DVD player that
would run under the Linux operating system, as there allegedly were no Linux
compatible players on the market at the time. [FN144] The argument plays itself out in various
ways as different elements of the DMCA come into focus. But it perhaps is useful to address the
point at its most general level in order to place the preceding discussion in
its fullest context.
FN144. Def.
Post-Trial Mem. at 2.
As noted, Section
1201(a) of the DMCA contains two distinct
prohibitions. Section
1201(a)(1), the so-called basic provision,
"aims against those who engage in
unauthorized circumvention of technological measures.... [It] focuses directly
on wrongful conduct, rather than on those who facilitate wrongful
conduct...." [FN145] Section
1201(a)(2), the anti-trafficking provision at
issue in this case, on the other hand, separately bans offering or providing
technology that may be used to circumvent technological means of controlling
access to copyrighted works. [FN146] If the means in question meets any of the
three prongs of the standard set out in Section
1201(a)(2)(A), (B), or (C), it may not be offered
or disseminated.
FN145. 1 NIMMER
§ 12A.03[A], at 12A-15 (1999 Supp.).
FN146. See id. §
12A.03[B], at 12A-25 to 12A-26.
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 orderto 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 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. [FN147] In any case, all of their assertions are
entirely without merit.
FN147. See
Def. Post-Trial Mem. at 13.
a. Reverse engineering
[5] 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 that doing so does not infringe
another's copyright [FN148] and, in addition, that one may make information acquired through such efforts
"available to others, if the person [in question] ... provides such information
solely for the purpose of enabling interoperability of an independently created
computer program with other programs, and to the extent that doing so does not
constitute infringement...." [FN149] They contend that DeCSS is necessary to achieve
interoperability between computers running the Linux operating system and DVDs
and that this exception therefore is satisfied. [FN150] This contention
fails.
FN148. 17
U.S.C. § § 1201(f)(1), (2).
FN149. Id. § 1201(f)(3).
FN150. Def.
Post-Trial Mem. at 13-15.
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 posted it
on their own.
Defendants would be in no stronger position
even if they had authored DeCSS. The
right to make the information available extends only to dissemination "solely for the purpose" of achieving
interoperability as defined in the statute.
It does not apply to public dissemination of means of circumvention, as
the legislative history confirms. [FN151] These defendants,
however, did not post DeCSS "solely" to achieve interoperability with
Linux or anything else.
FN151. COMMERCE
COMM.REP. at 43.
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 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 the purpose of conducting
the acts of good faith encryption research described in paragraph (2) or for
the purpose of having that other person verify his or her acts *321 of
good faith encryption research described in paragraph (2)." [FN152]
FN152. 17
U.S.C. § 1201(g)(4).
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...."
[FN151]
FN151. Id. § 1201(g)(2).
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 research are communicated in a timely fashion to
the copyright owner. [FN152]
FN152. Id. § 1201(g)(3).
[6] Neither of the defendants remaining in this case was or is
involved in good faith encryption research. [FN153] They posted DeCSS
for all the world to see. There is no
evidence that they made any effort to provide the results of the DeCSS effort
to the copyright owners. Surely there
is no suggestion that either of them made a good faith effort to obtain
authorization from the copyright owners.
Accordingly, defendants are not protected by Section
1201(g). [FN154]
FN153. Ex. 96
(Corley Dep.) at 33.
FN154. In any case,
Section
1201(g), where its requirements are met, is a
defense only to claims under Section
1201(a)(2), not those under Section
1201(b).
c. Security testing
Defendants contended earlier that their
actions should be considered exempt security testing under Section
1201(j) of the statute. [FN155] This exception,
however, is limited to "assessing a computer, computer system, or computer
network, solely for the purpose of good faith testing, investigating, or
correcting [of a] security flaw or vulnerability, with the authorization of the
owner or operator of such computer system or computer network." [FN156]
FN155. Def.Mem. in Opp. to Prelim.Inj. (DI 11) at 11-12.
FN156. Id. § 1201(j)(1).
The record does not indicate that DeCSS has
anything to do with testing computers, computer systems, or computer
networks. Certainly defendants sought,
and plaintiffs' granted, no authorization for defendants' activities. This
exception therefore has no bearing in this case. [FN157]
FN157. Like Section
1201(g), moreover, Section
1201(j) provides no defense to a Section
1201(b) claim.
d. Fair use
[7] Finally, defendants rely on the doctrine of fair use. Stated in its most general terms, the
doctrine, now codified in Section
107 of the Copyright Act, [FN158] limits the exclusive rights of a copyright holder by
permitting others to make limited use of portions of the copyrighted work, for
appropriate purposes, free of liability for copyright infringement. For example, it is permissible for one
other than the copyright owner to reprint or quote a suitable part of a copyrighted
book or article in certain circumstances.
The doctrine traditionally has facilitated literary and artistic criticism, teaching and scholarship,
and other socially useful forms of expression. *322 It has been viewed by courts as a safety valve that
accommodates the exclusive rights conferred by copyright with the freedom of
expression guaranteed by the First Amendment.
The use of technological means of controlling
access to a copyrighted work may affect the ability to make fair uses of the
work. [FN159] Focusing specifically on the facts of this
case, the application of CSS to encrypt a copyrighted motion picture requires
the use of a compliant DVD player to view or listen to the movie. Perhaps more significantly, it prevents
exact copying of either the video or the audio portion of all or any part of
the film. [FN160] This latter point
means that certain uses that might qualify as "fair" for purposes of
copyright infringement--for example, the preparation by a film studies
professor of a single CD-ROM or tape containing two scenes from different
movies in order to illustrate a point in a lecture on cinematography, as
opposed to showing relevant parts of two different DVDs--would be difficult or
impossible absent circumvention of the CSS encryption. Defendants therefore argue that the DMCA
cannot properly be construed to make it difficult or impossible to make any
fair use of plaintiffs' copyrighted works and that the statute therefore does not reach their
activities, which are simply a means to enable users of DeCSS to make such fair
uses.
FN159. Indeed, as
many have pointed out, technological means of controlling access to works
create a risk, depending upon future technological and commercial developments,
of limiting access to works that are not protected by copyright such as works
upon which copyright has expired. See,
e.g., Nimmer, A
Riff on Fair Use,
148 U.PA.L.REV. at 738-40; Hannibal Travis, Comment, Pirates
of the Information Infrastructure:
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);
FN160. Of course,
one might quote the verbal portion of the sound track, rerecord both verbal and
nonverbal portions of the sound track, and video tape or otherwise record
images produced on a monitor when the DVD is played on a compliant DVD player.
Defendants have focused on a significant
point. Access control measures such as CSS do involve some risk of preventing
lawful as well as unlawful uses of copyrighted material. Congress, however, clearly faced up to and
dealt with this question in enacting the DMCA.
The Court begins its statutory analysis, as
it must, with the language of the statute.
Section
107 of the Copyright Act provides in critical
part that certain uses of copyrighted works that otherwise would be wrongful
are "not ... infringement[s] of copyright." [FN161] Defendants, however, are not here sued for
copyright infringement. They are sued
for offering and providing technology designed to circumvent technological
measures that control access to copyrighted works and otherwise violating Section
1201(a)(2) of the Act. If Congress had meant the
fair use defense to apply to such actions, it would have said so. Indeed, as the legislative history
demonstrates, the decision not to make fair use a defense to a claim under Section
1201(a) was quite deliberate.
Congress was well aware during the
consideration of the DMCA of the traditional role of the fair use defense in
accommodating the exclusive rights of copyright owners with the legitimate
interests of noninfringing users of portions of copyrighted works. It recognized the contention, voiced by a range of constituencies concerned with the
legislation, that technological controls on access to copyrighted works might
erode fair use by preventing access even for uses that would be deemed
"fair" if only access might be gained. [FN162] And it struck a
balance among the competing interests.
FN162. See,
e.g., COMMERCE COMM.REP. 25-26.
*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...." [FN163] By doing so, it left "the traditional defenses to
copyright infringement, including fair use, ... fully applicable" provided
"the access is authorized." [FN164]
FN163. JUDICIARY
COMM.REP. 18.
FN164. Id.
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 adversely by Section
1201(a)(1). [FN165]
FN165. 17
U.S.C. § § 1201(a)(1)(B)-(E).
The rule-making is under way. 65
F.R. 14505-06 (Mar. 17, 2000); see also
<http://www.loc.gov/copyright/1201/anticirc.html> (visited July 28,
2000).
Third, it created a series of exceptions to
aspects of Section
1201(a) for certain uses that Congress thought
"fair," including reverse engineering, security testing, good faith
encryption research, and certain uses by nonprofit libraries, archives and
educational institutions. [FN166]
FN166. 17
U.S.C. § § 1201(d), (f), (g), (j).
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. [FN167] But
they are mistaken. Sony does not apply to the activities with which defendants
here are charged. Even if it did, it
would not govern here. Sony involved a construction of the Copyright Act that has been
overruled by the later enactment of the DMCA to the extent of any inconsistency
between Sony and the new statute.
FN167. 464
U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).
Sony was a suit for contributory infringement brought against
manufacturers of video cassette recorders on the theory that the manufacturers
were contributing to infringing home taping of copyrighted television
broadcasts. The Supreme Court held that the manufacturers were not liable in
view of the substantial numbers of copyright holders who either had authorized
or did not object to such taping by viewers. [FN168] But Sony has no application here.
FN168. Id.
at 443, 446, 104 S.Ct. 774.
[8][9] When Sony was decided, the only question was whether the
manufacturers could be held liable for infringement by those who purchased equipment from them in circumstances in which
there were many noninfringing uses for their equipment. But that is not the question now before
this Court. The question here is
whether the possibility of noninfringing fair use by someone who gains access
to a protected copyrighted work through a circumvention technology distributed
by the defendants saves the defendants from liability under Section
1201.
But nothing in Section
1201 so suggests. By prohibiting the provision of circumvention technology, the
DMCA fundamentally altered the landscape.
A given device or piece of technology might have "a substantial
noninfringing use, and hence be immune from attack under Sony 's construction of the Copyright Act--but nonetheless
still be subject to suppression under Section
1201." [FN169] Indeed,*324
Congress explicitly noted that Section
1201 does not incorporate Sony. [FN170]
FN169. RealNetworks,
Inc.,
2000 WL 127311, at *8 (quoting 1 NIMMER § 12A.18[B], at 12A-130) (internal quotation
marks omitted).
FN170.
SECTION-BY-SECTION ANALYSIS 9 ("The Sony test of 'capab [ility] of substantial non-infringing
uses,' while still operative in cases claiming contributory infringement of
copyright, is not part of this legislation....").
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 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 "offer[ing DeCSS] to the public" or "provid[ing] or
otherwise traffic[king]" in it within the meaning of the DMCA. [FN171] Answering
this question requires careful consideration of the nature and types of
linking.
FN171. 17
U.S.C. § 1201(a)(2).
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 and, in addition, to instruct the
computer to perform an operation if the cursor is placed over a particular
point on the screen and the mouse then clicked. [FN172] Programming a particular point on a screen
to transfer the user to another web page when the point, referred to as a
hyperlink, is clicked is called linking. [FN173] Web pages can be designed to link to other
web pages on the same site or to web pages maintained by different sites. [FN174]
FN172. Tr.
(Schumann) at 275-76.
FN173. Id.
at 261-62.
FN174. For example, a web page maintained by a radio station
might provide a hyperlink to a weather report by programming its page to
transfer the user to a National Weather Service site if the user clicks on the
"weather" hyperlink.
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 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.
[10] The statute makes it unlawful to offer, provide or
otherwise traffic in described technology. [FN175] To "traffic" in something is to engage in dealings in it, [FN176] conduct that necessarily involves awareness of the nature
of the subject of the trafficking. To "provide"
something, in the sense used in the statute, is to make it available or furnish
it.
[FN177]
To "offer" is to present or hold it out for consideration. [FN178] The phrase "or otherwise traffic
in" modifies and gives meaning to the words "offer" and
"provide." [FN179] In consequence,
the anti- trafficking provision of the DMCA is implicated where one presents,
holds out or makes a circumvention technology or device available, knowing its
nature, for the purpose of allowing others to acquire it.
FN175. 17
U.S.C. § 1201(a)(2).
FN176. See 2
THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 3372 (1971).
FN177. See 2
id. 2340.
FN178. See 1
id. 1979.
FN179. See,
e.g., Strom
v. Goldman, Sachs & Co.,
202 F.3d 138, 146-47 (2d Cir.1999).
[11] 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 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.
[12][13] Potentially more troublesome might be links to pages that
offer a good deal of content other than DeCSS but that offer a hyperlink for
downloading, or transferring to a page for downloading, DeCSS. If one assumed, for the purposes of
argument, that the Los Angeles Times web site somewhere contained the
DeCSS code, it would be wrong to say that anyone who linked to the Los
Angeles Times web site, regardless of purpose or the manner in which the
link was described, thereby offered, provided or otherwise trafficked in DeCSS
merely because DeCSS happened to be available on a site to which one linked. [FN180] But that is not
this case. Defendants urged others to post DeCSS in an effort to disseminate
DeCSS and to inform defendants that they were doing so. Defendants then linked their site to those
"mirror" sites, after first checking to ensure that the mirror sites
in fact were posting DeCSS or something that looked 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.
FN180. See DVD
Copy Control Ass'n, Inc. v. McLaughlin,
No. CV 786804, 2000 WL 48512, *4 (Cal.Super. Jan. 21, 2000) ("website owner cannot be held responsible for all of
the content of the sites to which it provides links"); Richard Raysman & Peter Brown, Recent
Linking Issues, N.Y.L.J., Feb. 8, 2000, p. 3, col. 1 (same).
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, 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.
[14] Defendants' assertion that computer code is
"protected" by the First Amendment is quite understandable. Courts often have spoken of certain
categories of expression as "not within the area of constitutionally
protected speech," [FN181] so defendants naturally wish to avoid exclusion by an
unfavorable categorization of computer code.
But such judicial statements in fact are not literally true. All modes of expression are covered by the
First Amendment in the sense that the constitutionality of their
"regulation must be determined by reference to First Amendment doctrine
and analysis." [FN182] Regulation ofdifferent 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.
FN181. Roth
v. United States,
354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity). See
also, e.g., Sable
Communications of California, Inc. v. F.C.C.,
492 U.S. 115, 124, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) (obscenity); Bose
Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 504, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (libel, obscenity, fighting words, child
pornography); Beauharnais
v. People of State of Illinois,
343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (defamation); Chaplinsky
v. State of New Hampshire,
315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words).
FN182. Robert Post,
Encryption
Source Code and the First Amendment,
15 BERKELEY TECH. L.J. 713, 714 (2000); see R.A.V.
v. City of St. Paul, Minnesota,
505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (statements that categories of speech are
"unprotected" are not literally true; characterization indicates only that they are subject to content
based regulation).
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. But each form expresses the same idea, albeit in different ways. [FN183]
FN183. The Court is
indebted to Professor David Touretzky of Carnegie-Mellon University, who
testified on behalf of defendants, for his lucid explication of this
point. See Tr. (Touretzky) at
1066-84 & Ex. BBE, CCO, CCP, CCQ. As will appear, however, the point does
not lead the Court to the same conclusion as Dr. Touretzky.
[15][16] There perhaps was a time when the First Amendment was
viewed only as a limitation on the ability of government to censor speech in
advance. [FN184] *327 But we
have moved far beyond that. All modes
by which ideas may be expressed or, perhaps, emotions evoked--including speech,
books, movies, art, and music--are within
the area of First Amendment concern. [FN185] As computer code--whether
source or object--is a means of expressing ideas, the First Amendment must be
considered before its dissemination may be prohibited or regulated. In that sense, computer code is covered or,
as sometimes is said, "protected" by the First Amendment. [FN186] But that conclusion still leaves for
determination the level of scrutiny to be applied in determining the
constitutionality of regulation of computer code.
FN184. LEONARD
LEVY, FREEDOM OF SPEECH IN EARLY AMERICAN HISTORY: LEGACY OF SUPPRESSION passim
(1960); see also 4 RONALD D.
ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW § 20.5 (1999); 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 151-52
(1769).
FN185. See,
e.g., Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).
FN186. Junger
v. Daley,
209 F.3d 481, 485 (6th Cir.2000); Bernstein
v. U.S. Dept. of Justice, 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).
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 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.
[17] In general, "government has no power to restrict
expression because of its message, its ideas, its subject matter, or its
content...." [FN187] "[S]ubject only to narrow and well-understood
exceptions, [the First Amendment] does not countenance governmental control
over the content of messages expressed by private individuals." [FN188] In consequence, content based restrictions
on speech are permissible only if they serve compelling state interests by the
least restrictive means available. [FN189]
FN187. Police
Dept. of City of Chicago v. Mosley,
408 U.S. 92, 95- 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
FN188. Turner
Broadcasting System, Inc. v. F.C.C.,
512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); accord, R.A.V.,
505 U.S. at 382-83, 112 S.Ct. 2538.
FN189. Sable
Communications of California, Inc. v. F.C.C.,
492 U.S. at 126, 109 S.Ct. 2829.
[18] Content neutral restrictions, in contrast, are measured
against a less exacting standard.
Because restrictions of this type are not motivated by a desire to limit
the message, they will be upheld if they serve a substantial governmental
interest *328 and restrict First Amendment freedoms no more than
necessary. [FN190]
FN190. Turner
Broadcasting System, Inc.,
512 U.S. at 662, 114 S.Ct. 2445 (citing United
States v. O'Brien,
391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)).
[19] Restrictions on the nonspeech elements of expressive
conduct fall into the conduct-neutral category. The Supreme Court long has distinguished for First Amendment
purposes between pure speech, which ordinarily receives the highest level of
protection, and expressive conduct. [FN191] Even if conduct contains an expressive
element, its nonspeech aspect need not be ignored. [FN192] "[W]hen
'speech' and 'nonspeech' elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms." [FN193] The critical point is that nonspeech
elements may create hazards for society above and beyond the speech
elements. They are subject to regulation in appropriate
circumstances because the government has an interest in dealing with the
potential hazards of the nonspeech elements despite the fact that they are
joined with expressive elements.
FN191. See, e.g.,
United
States v. O'Brien,
391 U.S. at 376, 88 S.Ct. 1673.
FN192. During the
Vietnam era, many who opposed the war, the draft, or both burned draft cards as
acts of protest. Lower federal courts
typically concluded or assumed that the expression inherent in this act of
protest brought the behavior entirely within the scope of the First
Amendment. THOMAS I. EMERSON, THE
SYSTEM OF FREEDOM OF EXPRESSION 82 (1970).
In United
States v. O'Brien,
391 U.S. at 376, 88 S.Ct. 1673, 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, 94 S.Ct. 2727, 41 L.Ed.2d 842 (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."
FN193. Id.
at 376.
Thus, the starting point for analysis is
whether the DMCA, as applied to restrict dissemination of DeCSS and other
computer code used to circumvent access control measures, is a content based
restriction on speech or a content neutral regulation. Put another way, the question is the level
of review that governs the DMCA's anti-trafficking provision as applied to
DeCSS--the strict scrutiny standard applicable to content based regulations or
the intermediate level applicable to content neutral regulations, including
regulations of the nonspeech elements of expressive conduct.
Given the fact that DeCSS code is expressive,
defendants would have the Court leap immediately to the conclusion that Section
1201(a)(2)'s prohibition on providing DeCSS
necessarily is content based regulation of speech because it suppresses
dissemination of a particular kind of expression. [FN194] But this would be
a unidimensional approach to a more textured reality and entirely too facile.
FN194. Def.
Post-Trial Mem. at 15-16.
[20] The "principal inquiry in determining content
neutrality ... is whether the government
has adopted a regulation of speech because of [agreement or] disagreement with
the message it conveys." [FN195] The computer code
at issue in this case, however, does more than express the programmers'
concepts. It does more, in other
words, than convey a message. DeCSS,
like any other computer program, is a series of instructions that causes a
computer to perform a particular sequence *329 of tasks which, in the
aggregate, decrypt CSS-protected files.
Thus, it has a distinctly functional, non-speech aspect in addition to
reflecting the thoughts of the programmers.
It enables anyone who receives it and who has a modicum of computer skills
to circumvent plaintiffs' access control system.
FN195. Ward
v. Rock Against Racism,
491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); accord, Hill
v. Colorado,
530U.S. 703, ----, 120 S.Ct. 2480, 2491, 147 L.Ed.2d 597 (2000); Turner
Broadcasting System, Inc.,
512 U.S. at 642, 114 S.Ct. 2445; Madsen
v. Women's Health Center, Inc.,
512 U.S. 753, 763, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994).
[21] The reason that Congress enacted the anti-trafficking
provision of the DMCA had nothing to do with suppressing particular ideas of
computer programmers and everything to do with functionality--with preventing
people from circumventing technological
access control measures--just as laws prohibiting the possession of burglar
tools have nothing to do with preventing people from expressing themselves by
accumulating what to them may be attractive assortments of implements and
everything to do with preventing burglaries.
Rather, it is focused squarely upon the effect of the distribution of
the functional capability that the code provides. Any impact on the dissemination of programmers' ideas is purely
incidental to the overriding concerns of promoting the distribution of
copyrighted works in digital form while at the same time protecting those works
from piracy and other violations of the exclusive rights of copyright holders. [FN196]
FN196. See
generally Turner
Broadcasting System, Inc.,
512 U.S. at 646-49, 114 S.Ct. 2445 (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).
These considerations suggest that the DMCA as
applied here is content neutral, a view that draws support also from City
of Renton v. Playtime Theatres, Inc. [FN197] The
Supreme Court there upheld against a First Amendment challenge a zoning
ordinance that prohibited adult movie theaters within 1,000 feet of a residential, church or park zone or
within one mile of a school. Recognizing that the ordinance did "not
appear to fit neatly into either the 'content based or the 'content-neutral'
category," it found dispositive the fact that the ordinance was justified
without reference to the content of the regulated speech in that the concern of
the municipality had been with the secondary effects of the presence of adult
theaters, not with the particular content of the speech that takes place in
them.
[FN198]
As Congress' concerns in enacting the anti-trafficking provision of the
DMCA were to suppress copyright piracy and infringement and to promote the
availability of copyrighted works in digital form, and not to regulate the
expression of ideas that might be inherent in particular anti-circumvention
devices or technology, this provision of the statute properly is viewed as
content neutral. [FN199]
FN197. 475
U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
FN198. Id.
at 46-49, 106 S.Ct. 925; see also Young
v. American Mini Theatres, Inc.,
427 U.S. 50, 71 n. 34, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).
FN199. See Karn,
925 F.Supp. at 10 (regulations controlling export
of computer code content neutral); Benkler,
74 N.Y.U.L.REV. at 413 (DMCA "content and viewpoint
neutral").
[22][23] Congress is not powerless to adopt 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 the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that *330
interest." [FN200]
FN200. Turner
Broadcasting System, Inc.,
512 U.S. at 662, 114 S.Ct. 2445 (quoting O'Brien,
391 U.S. at 377, 88 S.Ct. 1673 (internal
quotation marks omitted)); see also,
e.g., United
States v. Weslin,
156 F.3d 292, 297 (2d Cir.1998).
Moreover, "[t]o satisfy this standard,
a regulation need not be the least speech-restrictive means of advancing the
Government's interests." [FN201] "Rather, the
requirement of narrow tailoring is satisfied 'so long as the ... regulation
promotes a substantial government interest that would be achieved less
effectively absent the regulation.' " [FN202]
FN201. Turner
Broadcasting System, Inc.,
512 U.S. at 662, 114 S.Ct. 2445; see also Hill,
530 U.S. at ----, 120 S.Ct. at 2494.
FN202. Ward,
491 U.S. at 799, 109 S.Ct. 2746 (quoting United
States v. Albertini,
472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)).
[24] The anti-trafficking provision of the DMCA furthers an
important governmental interest--the protection of copyrighted works stored on
digital media from the vastly expanded risk of piracy in this electronic
age. The substantiality of that
interest is evident both from the fact that the Constitution specifically
empowers Congress to provide for copyright protection [FN203] and
from the significance to our economy of trade in copyrighted materials. [FN204] Indeed, the
Supreme Court has made clear that copyright protection itself is "the
engine of free expression." [FN205] That substantial
interest, moreover, is unrelated to the suppression of particular views
expressed in means of gaining access to protected
copyrighted works. Nor is the
incidental restraint on protected expression--the prohibition of trafficking in
means that would circumvent controls limiting access to unprotected materials
or to copyrighted materials for noninfringing purposes--broader than is
necessary to accomplish Congress' goals of preventing infringement and
promoting the availability of content in digital form. [FN206]
FN203. U.S. CONST.,
art. I, § 8 (Copyright Clause).
FN204. COMMERCE
COMM.REP. 94-95; SENATE REP. 21-22,
143.
FN205. Harper
& Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 558, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
FN206. It is
conceivable that technology eventually will provide means of limiting access
only to copyrighted materials and only for uses that would infringe the rights
of the copyright holder. See, e.g.,
Travis, 15
BERKELEY TECH.L.J. at 835-36; Mark Gimbel, Note, Some
Thoughts on the Implications of Trusted Systems for Intellectual Property Law,
50 Stan.L.Rev. 1671, 1875-78 (1998); Mark Stefik, Shifting
the Possible: How Trusted Systems and
Digital Property Rights Challenge Us to Rethink
Digital Publishing,
12 BERKELEY TECH.L.J. 137, 138-40 (1997). We have not yet come so far.
This analysis finds substantial support in
the principal case relied upon by defendants, Junger
v. Daley. [FN207] The plaintiff in
that case challenged on First Amendment grounds an Export Administration
regulation that barred the export of computer encryption software, 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 "[t]he functional capabilities of source code, particularly those of
encryption source code, should be considered when analyzing the governmental
interest in regulating the exchange of this form of speech." [FN208] Indeed, it went on
to indicate that the pertinent standard of review was that established in United
States v. O'Brien, [FN209] the
seminal speech-versus-conduct *331 decision. Thus, rather than holding
the challenged regulation unconstitutional on the theory that the expressive
aspect of source code immunized it from regulation, the court remanded the case
to the district court to determine whether the O'Brien standard was met in view of the functional aspect of code.
[FN210]
FN207. 209
F.3d 481 (6th Cir.2000).
FN209. 391
U.S. at 377, 88 S.Ct. 1673.
FN210. 209
F.3d at 485.
Notwithstanding its adoption by the Sixth
Circuit, the focus on functionality in order to determine the level of scrutiny
is not an inevitable consequence of the speech-conduct distinction. Conduct has immediate effects on the
environment. Computer code, on the
other hand, no matter how functional, causes a computer to perform the intended
operations only if someone uses the code to do so. Hence, one commentator, in a thoughtful article, has maintained
that functionality is really "a proxy for effects or harm" and that
its adoption as a determinant of the level of scrutiny slides over questions of
causation that intervene between the dissemination of a computer program and
any harm caused by its use. [FN211]
FN211. See
Lee Tien, Publishing
Software as a Speech Act,
15 BERKELEY
TECH.L.J. 629, 694-701 (2000). Professor Tien's analysis itself has been
criticized. Robert Post, Encryption
Source Code and the First Amendment, 15 BERKELEY TECH.L.J. 715 (2000).
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. The
copyright holder, once aware of the
appearance of infringing copies, usually was able to trace the copies up the
chain of distribution, find and prosecute the infringer, and shut off the
infringement at the source.
In principle, the digital world is very
different. Once a decryption program
like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of
decrypting and perfectly copying plaintiffs' copyrighted DVDs, but also of
retransmitting perfect copies of DeCSS and thus enabling every recipient to do
the same. They likewise are capable of
transmitting perfect copies of the decrypted DVD. The process potentially is
exponential rather than linear.
Indeed, the difference is illustrated by comparison of two
epidemiological models describing the spread of different kinds of disease. [FN212] In a common source epidemic, as where
members of a population contract a non-contagious disease from a poisoned well,
the disease spreads only by exposure to the common source. If one eliminates the source, or closes the
contaminated well, the epidemic is stopped.
In a propagated *332 outbreak epidemic, on the other hand, the
disease spreads from person to person.
Hence, finding the initial source of infection accomplishes little, as
the disease continues to spread even if the initial source is eliminated. [FN213] For obvious reasons, then, a propagated
outbreak epidemic, all other things being equal, can be far more difficult to
control.
FN212. This
perhaps is not as surprising as first might appear. Computer
"viruses" are other programs, an understanding of which is aided by
the biological analogy evident in their name.
See, e.g., Jeffrey O. Kephart, Gregory B. Sorkin, David M. Chess
and Steve R. White, Fighting Computer Viruses, SCIENTIFIC AMERICAN,
(visited Aug. 16, 2000) <http:// www.sciam.com/
1197issue/1197kephart.html>.
FN213. DAVID E.
LILIENFELD & PAUL D. STOLLEY, FOUNDATIONS OF EPIDEMIOLOGY 38-41 & Fig.
3-1 (3d ed.1994); JOHN P. FOX, CARRIE
E. HALL & LILA R. ELVEBACK, EPIDEMIOLOGY--MAN AND DISEASE 246-47 (1970).
This disease metaphor is helpful here. The book infringement hypothetical is
analogous to a common source outbreak epidemic. Shut down the printing 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
that ability. They cannot be relied
upon to identify themselves to those seeking to control the
"disease." And their
self-interest will motivate some to misuse the capability, a misuse that; in practical terms, often will be
untraceable. [FN214]
FN214. Of
course, not everyone who obtains DeCSS or some other decryption program
necessarily will use it to engage in copyright infringement, just as not
everyone who is exposed to a contagious disease contracts it. But that is immaterial. The critical point is that the combination
of (a) the manner in which the ability to infringe is spread and (b) the lack
of any practical means of controlling infringement at the point at which it
occurs once the capability is broadly disseminated render control of infringement by controlling
availability of the means of infringement far more critical in this context.
[25] 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 ultimately involves
practical policy judgments. [FN215] Here,
dissemination itself carries very substantial risk of imminent harm because the
mechanism is so unusual by which dissemination of means of circumventing access
controls to copyrighted works threatens to produce virtually unstoppable
infringement of copyright. In
consequence, the causal link between the dissemination of circumvention
computer programs and their improper use is more than sufficiently close to
warrant selection of a level of constitutional scrutiny based on the programs'
functionality.
FN215. See,
e.g., Guido Calabresi & Jeffrey O. Cooper, New
Directions in Tort Law,
30 VAL.U.L.REV. 859, 870-72 (1996).
[26]
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 interests that does not unduly restrict expressive
activities. In any case, its
particular functional characteristics are such that the Court would apply the
same level of scrutiny *333 even if it were viewed as content based. [FN216] Yet it is important to emphasize that this
is a very narrow holding. The
restriction the Court here upholds, notwithstanding that computer code is
within the area of First Amendment concern, is limited (1) to programs that
circumvent access controls to copyrighted works in digital form in
circumstances in which (2) there is no other practical means of preventing
infringement through use of the programs, and (3) the regulation is motivated
by a desire to prevent performance of the function for which the programs exist
rather than any message they might convey.
One readily might imagine other circumstances in which a governmental
attempt to regulate the dissemination of computer code would not similarly be
justified. [FN217]
FN216. As has
been noted above, some categories of speech, which often have been referred to
inaccurately as "unprotected," may be regulated on the basis of their
content. R.A.V.,
505 U.S. at 382-83, 112 S.Ct. 2538. 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, 112 S.Ct. 2538. 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. Commonwealth of Virginia,
435 U.S. 829, 842-43, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).
FN217. For
example, one might imagine a computer program the object of which was to teach the user a particular
view of a subject, e.g., evolution or creationism. Such a program, like this one, would be within the area of First
Amendment concern and functional. Yet
a regulation barring its use would be subject to a quite different
analysis. Such a ban, for example,
might be based on the content of the message the program caused the computer to
deliver to the student-user and thus quite clearly be content based. Similarly, the function--teaching--would
not involve the same likelihood that the dissemination would bring about a harm
that the government has a legitimate right to prevent.
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 "[a]ny system of prior
restraints of expression comes to [a] Court bearing a heavy presumption against
its constitutional validity." [FN218] Yet there is a significant gap between the rhetoric and
the reality. Courts often have upheld
restrictions on expression that many would describe as prior restraints, [FN219]
sometimes by *334 characterizing the expression as unprotected [FN220] and on other occasions finding the restraint justified
despite its presumed invalidity. [FN221] Moreover, the prior restraint doctrine, which has expanded far beyond the
Blackstonian model [FN222] that doubtless informed the understanding of the Framers
of the First Amendment, [FN223] has been criticized as filled with "doctrinal
ambiguities and inconsistencies result[ing] from the absence of any detailed
judicial analysis of [its] true rationale" [FN224] and, in one case, even as "fundamentally
unintelligible." [FN225] Nevertheless, the
doctrine has a well established core:
administrative preclearance requirements for and at least preliminary
injunctions against speech as conventionally understood are presumptively
unconstitutional. Yet that proposition
does not dispose of this case. [FN226]
FN218. U.S.
v. Washington Post Co.,
403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (quoting Bantam
Books, Inc. v. Sullivan,
372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)).
FN219. See,
e.g., Posadas
de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico,
478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986)
(upholding restrictions on casino gambling advertising); Times
Film Corp. v. Chicago,
365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (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, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987); Dallas
Cowboys Cheerleaders v. Pussycat Cinema, Ltd.,
604 F.2d 200 (2d Cir.1979) (enjoining
distribution of film on ground that actresses' uniforms infringed plaintiff's
trademark). See generally
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-36, at 1045-46 (1988) (hereinafter TRIBE).
FN220. See,
e.g., Charles
of the Ritz Group, Ltd. v. Quality King Distributors, Inc.,
832 F.2d 1317 (2d Cir.1987) (upholding injunction
against commercial slogan on ground that slogan created a likelihood of
confusion and is therefore "beyond the protective reach of the First
Amendment"); Vondran
v. McLinn,
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).
FN221. See,
e.g., Times
Film Corp. v. City of Chicago,
365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403
(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 Associates,
478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266
(upholding restrictions on advertising despite finding that the advertising
fell within ambit of First Amendment); Dallas
Cowboys Cheerleaders, Inc.,
604 F.2d 200 (enjoining distribution of film for
trademark infringement despite claim that injunction violated distributor's
First Amendment rights).
FN222. 4 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 151- 52 (1769).
FN223. See Pittsburgh
Press Co. v. Pittsburgh Com'n on Human Relations,
413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).
FN224. Martin H.
Redish, The Proper
Role of the Prior Restraint Doctrine in First Amendment Theory,
70 VA.L.REV. 53, 54 (1983) (hereinafter
"Redish"). See also
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-34, at 1040-41 (2d ed.1988).
FN225. John
Calvin Jeffries, Jr., Rethinking
Prior Restraint,
92 YALE L.J. 409, 419 (1983).
FN226. Despite
the conventional wisdom, it is far from clear that an injunction necessarily is
a prior restraint. Our circuit, for
example, has suggested that the prior restraint doctrine does not apply to
content neutral injunctions. See
e.g., Dallas
Cowboys Cheerleaders, Inc.,
604 F.2d at 206. At least one commentator persuasively has argued that there is
little justification for placing injunctions, at least permanent injunctions
issued after trial, in a disfavored constitutional position. Jeffries, 92
YALE L.J. at 426-34. Nevertheless, there is no reason to decide that question in this
case. The following discussion
therefore assumes that the permanent injunction plaintiff seeks would be a
"prior restraint," although it concludes that it would not be
unconstitutional.
The classic prior restraint cases were
dramatically different from this one. Near
v. Minnesota [FN227] involved a state procedure for abating scandalous and
defamatory newspapers as public nuisances.
New
York Times Co. v. United States [FN228] dealt
with an attempt to enjoin a newspaper from publishing an internal government
history of the Vietnam War. Nebraska
Press Association v. Stuart [FN229]
concerned a court order barring the reporting of certain details about a
forthcoming murder case. In each case,
therefore, the government sought to suppress speech at the very heart of First Amendment concern--expression about public
issues of the sort *335 that is indispensable to self government. And while the prior restraint doctrine has
been applied well beyond the sphere of political expression, we deal here with
something new altogether--computer code, a fundamentally utilitarian construct,
albeit one that embodies an expressive element. Hence, it would be a mistake simply to permit its expressive
element to drive a characterization of the code as speech no different from the
Pentagon Papers, the publication of a newspaper, or the exhibition of a motion
picture and then to apply prior restraint rhetoric without a more nuanced
consideration of the competing concerns.
FN227. 283
U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
FN228. 403
U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
FN229. 427
U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).
[27] In this
case,the considerations supporting an injunction are very substantial
indeed. Copyright and, more broadly,
intellectual property piracy are endemic, as Congress repeatedly has found. [FN230] The interest served by prohibiting means
that facilitate such piracy--the protection of the monopoly granted to copyright owners by the
Copyright Act--is of constitutional dimension. There is little room for
doubting that broad dissemination of DeCSS threatens ultimately to injure or
destroy plaintiffs' ability to distribute their copyrighted products on DVDs
and, for that matter, undermine their ability to sell their products to the
home video market in other forms. The
potential damages probably are incalculable, and these defendants surely would
be in no position to compensate plaintiffs for them if plaintiffs were remitted
only to post hoc damage suits.
FN230. See
H.R.REP. 106-216, 106th Cong., 1st Sess. (1999) ( "Notwithstanding
[penalties for copyright infringement] copyright piracy of intellectual
property flourishes, assisted in large part by today's world of advanced
technologies. For example, industry
groups estimate that counterfeiting and piracy of computer software cost the
affected copyright holders more than $11 billion last year (others believe the
figure is closer to $20 billion). In
some countries, software piracy rates are as high as 97% of all sales. The U.S. rate is far lower (25%), but the
dollar losses ($2.9 billion) are the highest worldwide. The effect of this volume of theft is
substantial: lost U.S. jobs, lost
wages, lower tax revenue, and higher prices for honest purchasers of copyrighted
software. Unfortunately, the potential for this problem to worsen is
great."); S.REP. 106-140, 106th Cong.,
1st Sess. (1999) ("Trademark owners are facing a new form of piracy on the
Internet caused by acts of 'cybersquatting.' "); S.REP. 105-190, 105th Cong., 2d Sess. (1998) ("Due to the
ease with which digital works can be copied and distributed worldwide virtually
instantaneously, copyright owners will hesitate to make their works readily
available on the Internet without reasonable assurance that they will be
protected against massive piracy.");
H.R.REP. 105-339, 105th Cong., 1st Sess. (1997) ("[C]opyright
piracy flourishes in the software world.").
On the other side of the coin, the First
Amendment interests served by the dissemination of DeCSS on the merits are
minimal. The presence of some
expressive content in the code should not obscure the fact of its predominant
functional character--it is first and foremost a means of causing a machine with
which it is used to perform particular tasks.
Hence, those of the traditional rationales for the prior restraint
doctrine that relate to inhibiting the transmission and receipt of ideas are of
attenuated relevance here. Indeed,
even academic commentators who take the extreme position that most injunctions
in intellectual property cases are unconstitutional prior restraints concede
that there is no First Amendment obstacle to injunctions barring distribution
of copyrighted computer object code or restraining the construction of a new building based on
copyrighted architectural drawings because the functional aspects of these
types of information are "sufficiently nonexpressive." [FN231]
FN231. Mark A.
Lemley & Eugene Volokh, Freedom
of Speech and Injunctions in Intellectual Property Cases,
48 DUKE L.J. 147, 210 & n. 275 (1998).
To be sure, there is much to be said in most
circumstances for the usual procedural rationale for the prior restraint
doctrine: prior restraints carry with
them the risk of erroneously suppressing expression that could not
constitutionally be punished *336 after publication. [FN232] In this context, however, that concern is
not persuasive, both because the enjoined expressive element is minimal and
because a full trial on the merits has been held. [FN233] Accordingly, the Court holds that the prior
restraint doctrine does not require denial of an injunction in this case.
FN232. See,
e.g., Pittsburgh
Press Co.,
413 U.S. at 390, 93 S.Ct. 2553 ("The special
vice of a prior restraint is that communication will be suppressed ... before
an adequate determination that it is unprotected by the First
Amendment."); Lemley &
Volokh, 48
DUKE L.J. at 200-02, 211; see Redish, 70
VA.L.REV. at 75-83.
FN233. See
Lemley & Volokh, 48
DUKE L.J. at 211-12, 215 (acknowledging that high
likelihood of success diminishes risk of erroneous suppression of protected
speech).
3. Overbreadth
[28] Defendants'
second focus is the contention that Section
1201(a)(2) is unconstitutional because it
prevents others from making fair use of copyrighted works by depriving them of
the means of circumventing plaintiffs' access control system. [FN234] In substance, they contend that the anti-
trafficking provision leaves those who lack sufficient technical expertise to
circumvent CSS themselves without the means of acquiring circumvention
technology that they need to make fair use of the content of plaintiffs'
copyrighted DVDs. [FN235]
FN234. Def.
Post-Trial Mem. at 22-24.
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, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This aspect of
defendants' argument, which in any case is an overstatement, therefore does not
refer to overbreadth in the sense relevant here.
[29][30] As a general
proposition, "a person to whom a statute constitutionally may be applied
may not challenge that statute on the ground that it conceivably may be applied
unconstitutionally to others in situations not before the Court." [FN236] When statutes
regulate speech, however, "the transcendent value to all society of
constitutionally protected expression is deemed to justify 'attacks on overly
broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with
the requisite narrow specificity.' " [FN237] This is so because the absent third parties may not
exercise their rights for fear of triggering "sanctions provided by a
statute susceptible of application to protected expression." [FN238] But the
overbreadth doctrine "is 'strong medicine' .... employed ... with
hesitation, and then 'only as a last
resort.' " because it conflicts with "the personal nature of
constitutional rights and the prudential limitations on constitutional
adjudication," including the importance of focusing carefully on the facts
in deciding constitutional questions. [FN239] Moreover, the limited function of the
overbreadth doctrine " 'attenuates as the otherwise unprotected behavior
that it forbids the State to sanction moves from 'pure speech' toward conduct
and that conduct--even if expressive--falls within the scope of otherwise valid
criminal *337 laws....' " [FN240] As defendants concede, "where conduct and not merely
speech is involved, ... the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate
sweep." [FN241]
FN236. Broadrick,
413 U.S. at 610, 93 S.Ct. 2908.
FN237. Gooding
v. Wilson,
405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting Dombrowski
v. Pfister,
380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)).
FN238. Gooding,
405 U.S. at 521, 92 S.Ct. 1103.
FN239. Los
Angeles Police Dept. 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, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (quoting Broadrick,
413 U.S. at 613, 93 S.Ct. 2908)).
FN240. Id.
at 489 (quoting Ferber,
458 U.S. at 770, 102 S.Ct. 3348 (quoting Broadrick,
413 U.S. at 615, 93 S.Ct. 2908)).
FN241. Broadrick,
413 U.S. at 612, 93 S.Ct. 2908.
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 particular trends in motion
pictures. A musicologist perhaps would
wish to play a portion of a musical sound track. A film scholar might desire to create and exhibit to students
small segments of several different films to make some comparative point about
the cinematography or some other characteristic. Numerous other examples doubtless could be imagined. But each necessarily involves one or more
of three types of use: (1) quotation of
the words of the script, (2) listening to the recorded sound track, including
both verbal and non-verbal elements, and (3) viewing of the graphic images.
All three of these types of use now are
affected by the anti-trafficking provision of the DMCA, but probably only to a
trivial degree. To begin with, all or
substantially all motion pictures available on DVD are available also on
videotape. [FN242] In consequence, anyone wishing to make
lawful use of a particular movie may buy or rent a videotape, play it, and even
copy all or part of it with readily available equipment. But even if movies were available only on
DVD, as someday may be the case, the impact on lawful use would be
limited. Compliant DVD players permit
one to view or listen to a DVD movie without circumventing CSS in any
prohibited sense. The technology
permitting manufacture of compliant DVD players is available to anyone on a royalty-free basis and at modest cost, so CSS
raises no technological barrier to their manufacture. Hence, those wishing to make lawful use of copyrighted movies by
viewing or listening to them are not hindered in doing so in any material way
by the anti-trafficking provision of the DMCA. [FN243]
FN243.
Defendants argue that the right of third parties to view DVD movies on
computers running the Linux operating system will be materially impaired if
DeCSS is not available to them.
However, the technology to build a Linux-based DVD player has been
licensed by the DVD CCA to at least two companies, and there is no reason to
think that others wishing to develop Linux players could not obtain licenses if
they so chose. Tr. (King) at 437-38. Therefore, enforcement of the DMCA to
prohibit the posting of DeCSS would not materially impair the ability of Linux
users to view DVDs on Linux machines.
Further, it is not evident that constitutional protection of free
expression extends to the type of device on which one plays copyrighted
material. Therefore, even assuming arguendo
that the ability of third parties to view DVD movies on Linux systems were
materially impaired by enforcement of the DMCA in this case, this impairment
would not necessarily implicate the First Amendment rights of these third parties.
*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.
[31] The DMCA
does have a notable potential impact on uses that copy portions of a DVD movie
because compliant DVD players are designed so as to prevent copying. In consequence, even though the fair use
doctrine permits limited copying of copyrighted works in appropriate
circumstances, the CSS encryption of DVD movies, coupled with the characteristics
of licensed DVD players, limits such uses absent circumvention of CSS. [FN244]
Moreover, the anti-trafficking provision of the DMCA may prevent
technologically unsophisticated persons who wish to copy portions of DVD movies
for fair use from obtaining the means of doing so. It is the interests of these individuals upon which defendants
rely most heavily in contending that the DMCA violates the First Amendment because
it deprives such persons of an asserted constitutional right to make fair use
of copyrighted materials. [FN245]
FN244. CSS
encryption coupled with the characteristics of compliant DVD players also
forecloses copying of digital sound files.
It is not clear, however, that this
is a substantial impediment to copying sound from motion picture DVDs. A DVD
can be played on a compliant player and the sound re-recorded. Whether the sound quality thus obtained
would be satisfactory might well depend upon the particular use to which the
copy was put.
FN245. The same
point might be made with respect to copying of works upon which copyright has
expired. Once the statutory protection
lapses, the works pass into the public domain. The encryption on a DVD copy of such a work, however, will
persist. Moreover, the combination of
such a work with a new preface or introduction might result in a claim to
copyright in the entire combination.
If the combination then were released on DVD and encrypted, the
encryption would preclude access not only to the copyrighted new material, but
to the public domain work. As the DMCA
is not yet two years old, this does not yet appear to be a problem, although it
may emerge as one in the future.
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 others, i.e., those requiring copying, may
not. Hence, the question whether Section
1201(a)(2) as applied here substantially affects
rights, much less constitutionally protected rights, of members of the
"fair use community" cannot be decided in bloc, without
consideration of the circumstances of each member or similarly situated groups
of members. Thus, the prudential
concern with ensuring that constitutional questions be decided only when the
facts before the Court so require counsels against permitting defendants to
mount an overbreadth challenge here. [FN246]
FN246.
Defendants argue that "there is now a full evidentiary record" and
that the overbreadth issue therefore should be decided. Def. Post- Trial Mem. at 22 n. 11. With respect, the evidence as to the impact
of the anti-trafficking provision of the DMCA on prospective fair users is
scanty and fails adequately to address the issues.
This is not to minimize the interests of the amici
who have submitted briefs in this case.
The Court simply does not have a sufficient evidentiary record on which
to evaluate their claims.
Second, there is no reason to suppose here
that prospective fair users will be deterred
from asserting their alleged rights by fear of sanctions imposed by the DMCA or
the Copyright Act.
Third, we do not deal here with "pure
speech." Rather, the issue
concerns dissemination of technology that is principally functional in nature. The same consideration that warrants
restraint in applying the overbreadth doctrine to statutes regulating *339
expressive conduct applies here. For
reasons previously expressed, government's interest in regulating the
functional capabilities of computer code is no less weighty than its interest
in regulating the nonspeech aspects of expressive conduct.
Finally, there has been no persuasive
evidence that the interests of persons who wish access to the CSS algorithm in
order to study its encryption methodology or to evaluate theories regarding
decryption raise serious problems. The
statute contains an exception for good faith encryption research. [FN247]
FN247. 17
U.S.C. § 1201(g).
Accordingly, defendants will not be heard to
mount an overbreadth challenge to the DMCA in this context.
4. Vagueness
[32] Defendants
argue also that the DMCA is unconstitutionally vague because the terms it employs are not
understandable to persons of ordinary intelligence and because they are subject
to discriminatory enforcement. [FN248]
FN248. Def.
Post-Trial Mem. at 24.
As the Supreme Court has made clear, one who
"engages in some conduct that is clearly proscribed [by the challenged
statute] cannot complain of the vagueness of the law as applied to the conduct
of others." [FN249] There can be no
serious doubt that posting a computer program the sole purpose of which is to
defeat an encryption system controlling access to plaintiff's copyrighted
movies constituted an "offer to the public" of "technology [or
a] product" that was "primarily designed for the purpose of
circumventing" plaintiffs' access control system. [FN250] Defendants thus engaged in conduct clearly
proscribed by the DMCA and will not be heard to complain of any vagueness as
applied to others.
FN249. Village
of Hoffman Estates v. Flipside,
455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
FN250. See
17
U.S.C. § 1201(a)(2)(A).
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.
[33] 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 concern. Hence, the constitutionality of the DMCA as applied to
defendants' linking is determined by the same O'Brien standard that governs trafficking in the circumvention technology
generally.
There is little question that the application
of the DMCA to the linking at issue in this case would serve, at least to some
extent, the same substantial governmental interest as its application to
defendants' posting of the DeCSS code.
Defendants' posting and their linking amount to very much the same
thing. Similarly, the regulation of
the linking at issue here is "unrelated to
the suppression of free expression" for the same reason as the regulation
of the posting. The third prong of the
O'Brien test as subsequently interpreted--whether the
"regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation" [FN251]--is a somewhat closer call.
FN251. Ward,
491 U.S. at 799, 109 S.Ct. 2746 (quoting United
States v. Albertini,
472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)).
*340 [34] Defendants
and, by logical extension, others may be enjoined from posting DeCSS. Plaintiffs may seek legal redress against
anyone who persists in posting notwithstanding this decision. Hence, barring defendants from linking to
sites against which plaintiffs readily may take legal action would advance the
statutory purpose of preventing dissemination of circumvention technology, but
it would do so less effectively than would actions by plaintiffs directly
against the sites that post. For
precisely this reason, however, the real significance of an anti-linking
injunction would not be with U.S. web sites subject to the DMCA, but with
foreign sites that arguably are not subject to it and not subject to suit
here. An anti-linking injunction to
that extent would have a significant impact and thus materially advance a substantial governmental
purpose. In consequence, the Court
concludes that an injunction against linking to other sites posting DeCSS
satisfies the O'Brien standard. There
remains, however, one further important point.
Links are "what unify the [World Wide]
Web into a single body of knowledge, and what makes the Web unique." [FN252] They "are the
mainstay of the Internet and indispensable to its convenient access to the vast
world of information." [FN253] They often are
used in ways that do a great deal to promote the free exchange of ideas and
information that is a central value of our nation. Anythingthat would impose strict liability on a web site
operator for the entire contents of any web site to which the operator linked
therefore would raise grave constitutional concerns, as web site operators
would be inhibited from linking for fear of exposure to liability. [FN254] And it
is equally clear that exposing those who use links to liability under the DMCA
might chill their use, as some web site operators confronted with claims that
they have posted circumvention technology falling within the statute may be
more inclined to remove the allegedly offending link rather than test the issue
in court. Moreover, web sites often
contain a great variety of things, and a ban on linking to a site that contains
DeCSS amidst other content threatens to restrict communication of this
information to an excessive degree.
FN252. ACLU
v. Reno,
929 F.Supp. 824, 837 (E.D.Pa.1996), aff'd,
521
U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
FN253. Richard
Raysman & Peter Brown, Recent Linking Issues, N.Y.L.J., Feb. 8,
2000, p. 3, col. 1.
FN254. Cf. New
York Times Co. v. Sullivan,
376 U.S. 254, 271-73, 283-88, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
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 the activity, whether it is publishing a newspaper or linking, except in
cases in which the conduct in question has little or no redeeming constitutional
value.
In the defamation area, this has been
accomplished by a two-tiered constitutional standard. There may be no liability under the First Amendment for
defamation of a public official or a public figure unless the plaintiff proves,
by clear and convincing evidence, that the defendant published the offending
statement with knowledge of its *341 falsity or with serious doubt as to
its truth. [FN255] Liability in private figure cases, on the
other hand, may not be imposed absent proof at least of negligence under Gertz
v. Robert Welch, Inc. [FN256] A
similar approach would minimize any chilling effect here.
FN255. Id.
at 283, 84 S.Ct. 710; Curtis
Pub. Co. v. Butts,
388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); St.
Amant v. Thompson,
390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); ROBERT D. SACK,
SACK ON DEFAMATION § 1.2.4 (3d
ed.1999).
FN256. 418
U.S. 323, 347-38, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
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.
[35]
Accordingly, there may be no injunction against, nor liability for, linking to
a site containing circumvention technology, the offering of which is unlawful
under the DMCA, absent clear and convincing evidence that those responsible for
the link (a) know at the relevant time that the offending material is on the
linked-to site, (b) know that it is circumvention technology that may not
lawfully be offered, and (c) create or maintain the link for the purpose of
disseminating that technology. [FN257] Such a standard will limit the fear of
liability on the part of web site operators just as the New
York Times standard gives 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.
FN257. In
evaluating purpose, courts will look at all relevant circumstances. Sites that advertise their links as means
of getting DeCSS presumably will be found to have created the links for the
purpose of disseminating the program.
Similarly, a site that deep links to a page containing only DeCSS
located on a site that contains a broad range of other content, all other
things being equal, would more likely be found to have linked for the purpose
of disseminating DeCSS than if it merely links to the home page of the
linked-to site.
[36] In this
case, plaintiffs have established by clear and convincing evidence that these
defendants linked to sites posting DeCSS, knowing that it was a circumvention
device. Indeed, they initially touted
it as a way to get free movies, [FN258] and
they later maintained the links to promote the dissemination of the program in
an effort to defeat effective judicial relief. They now know that dissemination of DeCSS violates the DMCA. An
anti-linking injunction on these facts does no violence to the First Amendment. Nor should it chill the activities of web
site operators dealing with different materials, as they may be held liable
only on a compelling showing of deliberate evasion of the statute.
IV. Relief
A. Injury to Plaintiffs
[37] The DMCA
provides that "[a]ny person injured by a violation of section
1201 or 1202 may bring a civil action in an appropriate United States
court for such violation." [FN259] For the reasons
set forth above, plaintiffs obviously have suffered and, absent effective
relief, will continue to suffer injury by virtue of the ready availability of
means of circumventing the CSS access control 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.
FN259. 17
U.S.C. § 1203(a).
They begin with the assertion that plaintiffs
have failed to prove that decrypted motion pictures actually are available. [FN260] To be sure, plaintiffs might have done a
better job of proving what appears to be reasonably obvious. They certainly could have followed up on
more of the 650 movie titles listed on the web site described above to
establish that the titles in fact were available. But the evidence they did adduce is not nearly as meager as
defendants would have it. Dr. Shamos
did pursue and obtain a pirated copy of a
copyrighted, DivX'd motion picture from someone he met in an Internet chat
room. An MPAA investigator downloaded
between five and ten such copies. And
the sudden appearance of listings of available motion pictures on the Internet
promptly after DeCSS became available is far from lacking in evidentiary
significance. In any case, in order to
obtain the relief sought here, plaintiffs need show only a threat of injury by
reason of a violation of the statute. [FN261] The
Court finds that plaintiffs overwhelmingly have established a clear threat of
injury by reason of defendants' violation of the statute.
FN260. Def.
Post-Trial Mem. at 27-28.
FN261. The
statute expressly authorizes injunctions to prevent or restrain violations, 17
U.S.C. § 1203(b)(1), thus demonstrating that the requisite injury need only be
threatened.
Defendants next maintain that plaintiffs
exaggerate the extent of the threatened injury. They claim that the studios in fact believe that DeCSS is not a
threat. [FN262] But the only basis for that contention is a
couple of quotations from statements that the MPAA or one or another studio
made (or considered making but did not in fact issue) to the effect that it was
not concerned about DeCSS or that it was
inconvenient to use. [FN263] These statements, however, were attempts to
"spin" public opinion. [FN264] They do not now reflect the actual state of
affairs or the studios' actual views, if they ever did.
FN262. Def.
Post-Trial Mem. at 28.
FN264. See,
e.g., Ex. AYZ (Hunt Dep.) at 94-104.
[38][39] 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 "[m]any utilities
and devices ... can decrypt DVDs equally well and often faster and with greater
ease than by using DeCSS." [FN265] This is a
substantial exaggeration. There appear
to be a few other so-called rippers, but the Court finds that DeCSS is usable
on a broader range of DVDs than any of the others. Further, there is no credible evidence that any other utility is
faster or easier to use than DeCSS.
Indeed, the Court concludes that DeCSS is the superior product, as
evidenced by the fact that the web site promoting DivX as a tool for obtaining
usable copies of copyrighted movies recommends
the use of DeCSS, rather than anything else, for the decryption step [FN266] and that the apparent availability of pirated motion
pictures shot up so dramatically upon the introduction of DeCSS. [FN267]
FN267.
Defendants' argument would lack merit even if there were credible proof that
other circumvention devices actually exist and produce results comparable to
DeCSS. The available movies must have
been decrypted with DeCSS or something else.
As far as this record discloses, any such device or technology would
violate the DMCA for the same reasons as does DeCSS. In consequence, this case comes within the principle of Summers
v. Tice,
33 Cal.2d 80, 199 P.2d 1 (1948). Where, as here, two or more persons take
substantially identical wrongful actions, one and only one of which had to be
the source of the plaintiffs' injury, and it is equally likely that one
inflicted the injury as the other, the burden of proof on causation shifts to
the defendants, each of which is liable absent proof that its action did not
cause the injury. See 4 Fowler
V. Harper & Fleming James, Jr., THE LAW
OF TORTS § § 101-04 (2d ed.1996).
Defendants' efforts to avoid the consequences of this
common sense principle are unpersuasive.
They argue, for example, that plaintiffs may not invoke the theory
unless they join as defendants everyone who may have contributed to the
injury. Def. Post-Trial Mem. at 32 n.
18 (citing Ex. UZ). It would be
difficult to imagine a more nonsensical requirement in the context of this
case. Where, as here, harm is done by
dissemination of information over the Internet, probably by a substantial
number of people all over the world, defendants' proposed rule would foreclose
judicial relief anywhere because joinder of all plainly would be impossible in
any one place, and technology does not permit identification of which
wrongdoer's posting or product led to which pirated copy of a copyrighted work.
*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.
[40] The
starting point, as always, is the statute.
The DMCA provides in relevant part that the court in an action brought
pursuant to its terms "may grant temporary and permanent injunctions on
such terms as it deems reasonable to
prevent or restrain a violation...." [FN268] Where statutes in substance so provide, injunctive relief
is appropriate if there is a reasonable likelihood of future violations absent
such relief [FN269] and, in cases brought by private plaintiffs, if the
plaintiff lacks an adequate remedy at law. [FN270]
FN268. 17
U.S.C. § 1203(b)(1).
FN269. See,
e.g., S.E.C.
v. Unique Financial Concepts, Inc.,
196 F.3d 1195, 1199 n. 2 (11th 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"); Commodity
Futures Trading Com'n v. Hunt,
591 F.2d 1211, 1220 (7th Cir.1979) (same under
Commodity Exchange Act, 7
U.S.C. § 13a-1(b)); S.E.C.
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).
FN270. See,
e.g., Rondeau
v. Mosinee Paper Corp.,
422 U.S. 49, 57, 95
S.Ct. 2069, 45 L.Ed.2d 12 (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).
[41] 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 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 which the code is available to much of
the world via Internet postings, among other problems, render statutory damages
an inadequate means of redressing plaintiffs' claimed injuries. Indeed, difficulties such as this have led
to the presumption that copyright and trademark infringement cause irreparable
injury, [FN271] i.e., injury for which damages are not an adequate remedy. [FN272] The Court therefore holds that the
traditional requirements for issuance of a permanent injunction have been
satisfied. Yet there remains another
point for consideration.
FN271. Tough
Traveler, Ltd. v. Outbound Prods.,
60 F.3d 964, 967- 68
(2d Cir.1995) (trademark); Fisher-Price,
Inc. v. Well-Made Toy Mfg. Corp.,
25 F.3d 119, 124 (2d Cir.1994) (copyright).
FN272. See,
e.g., Northwestern
Nat'l Ins. Co. v. Alberts,
937 F.2d 77, 80 (2d Cir.1991) ("The
irreparable injury requisite ... overlaps with the absent lack of adequate
remedy at law necessary to establish the equitable rights."); Buffalo
Forge Co. v. Ampco-Pittsburgh Corp.,
638 F.2d 568, 569 (2d Cir.1981) ("There must
also be a showing of irreparable harm, the absence of an adequate remedy at
law, which is the sine qua non for the grant of such equitable
relief.")
[42] Defendants
argue that an injunction in this case would be futile because DeCSS already is
all over the Internet. They say an
injunction would be comparable to locking the barn door after the horse is
gone. And the Court has been troubled
by that possibility. But the
countervailing arguments overcome that concern.
To begin with, any such conclusion
effectively would create all the wrong incentives by allowing defendants to
continue violating the DMCA simply because others, many doubtless at
defendants' urging, are doing so as well.
Were that the law, defendants confronted with the possibility of
injunctive relief would be well advised to ensure that others engage in the
same unlawful conduct in order to set up
the argument that an injunction against the defendants would be futile because
everyone else is doing the same thing.
Second, and closely related, is the fact that
this Court is sorely "troubled by the notion that any Internet user ...
can destroy valuable intellectual property rights by posting them over the
Internet." [FN273] While equity
surely should not act where the controversy has become moot, it ought to look
very skeptically at claims that the defendant or others already have done all
the harm that might be done before the injunction issues.
FN273. Religious
Technology Center v. Netcom On-Line Communication Services, Inc.,
923 F.Supp. 1231, 1256 (N.D.Cal.1995).
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 well. In short, this Court, like others than have
faced the issued, is "not persuaded that modern technology has withered
the strong right arm of equity." [FN274] Indeed, *345
the likelihood is that this decision will serve notice on others that "the
strong right arm of equity" may be brought to bear against them absent a
change in their conduct and thus contribute to a climate of appropriate respect
for intellectual property rights in an age in which the excitement of ready
access to untold quantities of information has blurred in some minds the fact
that taking what is not yours and not freely offered to you is stealing.
Appropriate injunctive [FN275] and declaratory relief will issue simultaneously with this
opinion.
FN274. Com-Share,
Inc. v. Computer Complex, Inc.,
338 F.Supp. 1229, 1239 (E.D.Mich.1971).
FN275. During
the trial, Professor Touretzky of Carnegie Mellon University, as noted above,
convincingly demonstrated that computer source and object code convey the same
ideas as various other modes of expression, including spoken language
descriptions of the algorithm embodied in the code. Tr. (Touretzky) at 1068-69; Ex. BBE, CCO, CCP, CCQ. He drew from this
the conclusion that the preliminary injunction irrationally distinguished
between the code, which was enjoined, and other modes of expression that convey
the same idea, which were not, id., although of course he had no reason
to be aware that the injunction drew that line only because that was the limit
of the relief plaintiffs sought. With
commendable candor, he readily admitted that the implication of his view that
the spoken language and computer code versions were substantially similar was
not necessarily that the preliminary injunction was too broad; rather, the
logic of his position was that it was either too broad or too
narrow. Id. at 1070-71. Once again, the question of a substantially
broader injunction need not be addressed here, as plaintiffs have not sought
broader relief.
V. Miscellaneous
Contentions
There remain for consideration two other
matters, plaintiffs' application for costsand attorney's fees and defendants'
pretrial complaints concerning discovery.
[43] The DMCA
permits awards of costs and attorney's fees to the prevailing party in the
discretion of the Court. [FN276] Insofar as attorney's fees are concerned,
this is an exception to the so-called "American rule" pursuant to which each side in a
litigation customarily bears its own attorney's fees. As this was a test case raising important issues, it would be
inappropriate to award attorney's fees pursuant to the DMCA. [FN277] There
is no comparable reason, however, for failing to award costs, particularly as
taxable costs are related to the excessive discovery demands that the Court
already has commented upon. [FN278]
FN276. 17
U.S.C. § 1203(b)(4)-(b)(5).
FN277. See Fogerty
v. Fantasy, Inc.,
510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) (articulating factors relevant to fee awards under the
Copyright Act).
FN278. Universal
City Studios, Inc. v. Reimerdes,
104 F.Supp.2d 334 (S.D.N.Y. 2000).
A final word is in order in view of
defendants' repeated pretrial claims that their discovery efforts were being
thwarted. During the course of the
trial, they applied for leave to take one deposition, which was granted. At no point did they make any showing that
they were hampered in presenting their case or meeting the plaintiffs' case by
virtue of any failure to obtain discovery. They
applied for no continuance. They have
not sought a new trial. And though
they estimated that their case would take several weeks to present, the entire
trial was completed in six days.
Indeed, in the Court's view, the trial fully vindicated its pretrial
assessment that there were, in actuality, very few genuinely disputed questions
of material fact, and most of those involved expert testimony that was readily
available to both sides. [FN279]
Examination of the trial record will reveal that virtually the entire case
could have been stipulated, although the legal conclusions to be drawn from the
stipulated facts of course would have remained a matter of controversy.
FN279. The chief
factual issue actually litigated at trial was the speed with which decrypted
files could be transmitted over the Internet and other networks.
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 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.
CGSO ORDERED. CG
END OF
DOCUMENT