111 F.Supp.2d 294
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.
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 Internetweb 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 [a ], at 12A-16.
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
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
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 order to infringe, or to permit or encourage others to infringe, copyrighted works in violation of other provisions of the Copyright Act simply does not matter for purposes 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
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).
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
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.
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.
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).
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.
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.
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 of different categories of expression, however, is subject to varying levels of judicial scrutiny. Thus, to say that a particular form of expression is "protected" by the First Amendment means that the constitutionality of any regulation of it must be measured by reference to the First Amendment. In some circumstances, however, the phrase connotes also that the standard for measurement is the most exacting level available.
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.,
