|||UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2000
|||Docket No. 00-9185
|||November 28, 2001
|||UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER
STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT COMPANY, L.P., DISNEY ENTERPRISES INC., TWENTIETH
CENTURY FOX FILM CORPORATION, PLAINTIFFS-APPELLEES,
ERIC CORLEY, ALSO KNOWN AS EMMANUEL GOLDSTEIN, AND 2600 ENTERPRISES INC., DEFENDANTS-APPELLANTS, UNITED STATES OF AMERICA, INTERVENOR.
|||Kathleen Sullivan, Stanford, Cal. (Martin Garbus, Edward Hernstadt, Frankfurt
Garbus Kurnit Klein & Selz, New York, N.Y.; Cindy A. Cohn, Lee Tien,
Robin Gross, Elec. Frontier Found., San Francisco, Cal., on the brief),
for Defendants-Appellants. Charles S. Sims, New York, N.Y. (Leon P. Gold,
Jon A. Baumgarten, Carla M. Miller, Matthew J. Morris, Proskauer Rose, New
York, N.Y., on the brief), for Plaintiffs-Appellees. Daniel S. Alter, Asst.
U.S. Atty., New York, N.Y. (Mary Jo White, U.S. Atty., Marla Alhadeff, Asst.
U.S. Atty., New York, N.Y., on the brief), for Intervenor United States
of America. (Prof. Peter Jazsi, Wash. College of Law, American Univ., Wash.,
D.C.; Prof. Jessica Litman, Wayne State Univ., Detroit, Mich.; Prof. Pamela
Samuelson, Univ. of Cal. at Berkeley, Berkeley, Cal.; Ann Beeson, Christopher
Hansen, American Civil Liberties Union Foundation, New York, N.Y., submitted
a brief in support of Defendants- Appellants, for amici curiae American
Civil Liberties Union et al.). (Andrew Grosso, Wash., D.C., submitted a
brief in support of Defendants-Appellants for amicus curiae Acm Committee
on Law and Computing Technology). (James S. Tyre, Culver City, Cal., submitted
a brief in support of Defendants-Appellants, for amici curiae Dr. Harold
Abelson et al.). (Edward A. Cavazos, Gavino Morin, Cavazos, Morin, Langenkamp
& Ferraro, Austin, Tex., submitted a brief in support of Defendants-Appellants,
for amici curiae Ernest Miller et al.). (Arnold G. Rheinhold, Cambridge,
Mass., submitted a brief amicus curiae in support of Defendant-Appellant
2600 Enterprises, Inc.). (Prof. Julie E. Cohen, Georgetown Univ. Law Center,
Wash., D.C., submitted a brief in support of Defendants-Appellants, for
amici curiae intellectual property law professors). (Jennifer S. Granick,
Stanford, Cal., submitted a brief in support of Defendants-Appellants, for
amici curiae Dr. Steven Bellovin et al.). (Prof. Yochai Benkler, N.Y. Univ.
School of Law, New York, N.Y.; Prof. Lawrence Lessig, Stanford Law School,
Stanford, Cal., submitted a brief amici curiae in support of Defendants-Appellants).
(David A. Greene, First Amendment Project, Oakland, Cal.; Jane E. Kirtley,
Erik F. Ugland, Silha Center for the Study of Media Ethics and Law, Univ.
of Minn., Minneapolis, Minn.; Milton Thurm, Thurm & Heller, New York,
N.Y., submitted a brief in support of Defendants-Appellants, for amici curiae
Online News Ass'n et al.). (Prof. Rodney A. Smolla, Univ. of Richmond School
of Law, Richmond Va., submitted a brief in support of Plaintiffs-Appellees,
for amici curiae Prof. Erwin Chemerinsky et al.). (David E. Kendall, Paul
B. Gaffney, Williams & Connolly, Wash., D.C.; David M. Proper, National
Football League and Nfl Properties, New York, N.Y.; Thomas J. Ostertag,
Office of the Commissioner of Baseball, New York, N.Y., submitted a brief
in support of Plaintiff- Appellees, for amici curiae Recording Ind. Ass'n
of Am. et al.). (Jeffrey L. Kessler, Robert G. Sugarman, Geoffrey D. Berman,
Weil, Gotshal & Manges Llp, New York, N.Y., submitted a brief in support
of Plaintiffs- Appellees, for amicus curiae Dvd Copy
Control Ass'n, Inc.).
|||Before: Newman and Cabranes, Circuit Judges, and Thompson, *fn1 District
|||The opinion of the court was delivered by: Jon O. Newman, Circuit Judge
|||Argued: May 1, 2001
|||Finally Submitted: May 30, 2001
|||Appeal from the amended final judgment of the United States District Court
for the Southern District of New York (Lewis A. Kaplan, District Judge,
entered August 23, 2000, enjoining Appellants from posting on their web
site a computer program that decrypts the encryption code limiting access
to DVD movies, and from linking to other web sites containing the decryption
|||When the Framers of the First Amendment prohibited Congress from making
any law "abridging the freedom of speech," they were not thinking
about computers, computer programs, or the Internet. But neither were they
thinking about radio, television, or movies. Just as the inventions at the
beginning and middle of the 20th century presented new First Amendment issues,
so does the cyber revolution at the end of that century. This appeal raises
significant First Amendment issues concerning one aspect of computer technology--encryption
to protect materials in digital form from unauthorized access. The appeal
challenges the constitutionality of the Digital Millennium Copyright Act
("DMCA"), 17 U.S.C. § 1201 et seq. (Supp. V 1999) and the validity
of an injunction entered to enforce the DMCA.
|||Defendant-Appellant Eric C. Corley and his company, 2600 Enterprises,
Inc., (collectively "Corley," "the Defendants," or "the
Appellants") appeal from the amended final judgment of the United States
District Court for the Southern District of New York (Lewis A. Kaplan, District
Judge), entered August 23, 2000, enjoining them from various actions concerning
a decryption program known as "DeCSS." Universal City Studios,
Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000) ("Universal
II"). The injunction primarily bars the Appellants from posting DeCSS
on their web site and from knowingly linking their web site to any other
web site on which DeCSS is posted. Id. at 346-47. We affirm.
|||Understanding the pending appeal and the issues it raises requires some
familiarity with technical aspects of computers and computer software, especially
software called "digital versatile disks" or "DVDs,"
which are optical media storage devices currently designed to contain movies.
*fn2 Those lacking such familiarity will
be greatly aided by reading Judge Kaplan's extremely lucid opinion, Universal
City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) ("Universal
I"), beginning with his helpful section "The Vocabulary of this
Case," id. at 305-09.
|||This appeal concerns the anti-trafficking provisions of the DMCA, which
Congress enacted in 1998 to strengthen copyright protection in the digital
age. Fearful that the ease with which pirates could copy and distribute
a copyrightable work in digital form was overwhelming the capacity of conventional
copyright enforcement to find and enjoin unlawfully copied material, Congress
sought to combat copyright piracy in its earlier stages, before the work
was even copied. The DMCA therefore backed with legal sanctions the efforts
of copyright owners to protect their works from piracy behind digital walls
such as encryption codes or password protections. In so doing, Congress
targeted not only those pirates who would circumvent these digital walls
(the "anti- circumvention provisions," contained in 17 U.S.C.
§ 1201(a)(1)), but also anyone who would traffic in a technology primarily
designed to circumvent a digital wall (the "anti-trafficking provisions,"
contained in 17 U.S.C. § 1201(a)(2), (b)(1)).
|||Corley publishes a print magazine and maintains an affiliated web site
geared towards "hackers," a digital-era term often applied to
those interested in techniques for circumventing protections of computers
and computer data from unauthorized access. The so-called hacker community
includes serious computer-science scholars conducting research on protection
techniques, computer buffs intrigued by the challenge of trying to circumvent
access-limiting devices or perhaps hoping to promote security by exposing
flaws in protection techniques, mischief- makers interested in disrupting
computer operations, and thieves, including copyright infringers who want
to acquire copyrighted material (for personal use or resale) without paying
|||In November 1999, Corley posted a copy of the decryption computer program
"DeCSS" on his web site, http://www.2600.com ("2600.com").
*fn3 DeCSS is designed to circumvent "CSS,"
the encryption technology that motion picture studios place on DVDs to prevent
the unauthorized viewing and copying of motion pictures. Corley also posted
on his web site links to other web sites where DeCSS could be found.
|||Plaintiffs-Appellees are eight motion picture studios that brought an
action in the Southern District of New York seeking injunctive relief against
Corley under the DMCA. Following a full non-jury trial, the District Court
entered a permanent injunction barring Corley from posting DeCSS on his
web site or from knowingly linking via a hyperlink to any other web site
containing DeCSS. Universal II, 111 F. Supp. 2d at 346-47. The District
Court rejected Corley's constitutional attacks on the statute and the injunction.
Universal I, 111 F. Supp. 2d at 325- 45.
|||Corley renews his constitutional challenges on appeal. Specifically, he
argues primarily that: (1) the DMCA oversteps limits in the Copyright Clause
on the duration of copyright protection; (2) the DMCA as applied to his
dissemination of DeCSS violates the First Amendment because computer code
is "speech" entitled to full First Amendment protection and the
DMCA fails to survive the exacting scrutiny accorded statutes that regulate
"speech"; and (3) the DMCA violates the First Amendment and the
Copyright Clause by unduly obstructing the "fair use" of copyrighted
materials. Corley also argues that the statute is susceptible to, and should
therefore be given, a narrow interpretation that avoids alleged constitutional
|||For decades, motion picture studios have made movies available for viewing
at home in what is called "analog" format. Movies in this format
are placed on videotapes, which can be played on a video cassette recorder
("VCR"). In the early 1990s, the studios began to consider the
possibility of distributing movies in digital form as well. Movies in digital
form are placed on disks, known as DVDs, which can be played on a DVD player
(either a stand-alone device or a component of a computer).
|||DVDs offer advantages over analog tapes, such as improved visual and audio
quality, larger data capacity, and greater durability. However, the improved
quality of a movie in a digital format brings with it the risk that a virtually
perfect copy, i.e., one that will not lose perceptible quality in the copying
process, can be readily made at the click of a computer control and instantly
distributed to countless recipients throughout the world over the Internet.
This case arises out of the movie industry's efforts to respond to this
risk by invoking the anti-trafficking provisions of the DMCA.
|||The movie studios were reluctant to release movies in digital form until
they were confident they had in place adequate safeguards against piracy
of their copyrighted movies. The studios took several steps to minimize
the piracy threat. First, they settled on the DVD as the standard digital
medium for home distribution of movies. The studios then sought an encryption
scheme to protect movies on DVDs. They enlisted the help of members of the
consumer electronics and computer industries, who in mid-1996 developed
the Content Scramble System ("CSS"). CSS is an encryption scheme
that employs an algorithm configured by a set of "keys" to encrypt
a DVD's contents. The algorithm is a type of mathematical formula for transforming
the contents of the movie file into gibberish; the "keys" are
in actuality strings of 0's and 1's that serve as values for the mathematical
formula. Decryption in the case of CSS requires a set of "player keys"
contained in compliant DVD players, as well as an understanding of the CSS
encryption algorithm. Without the player keys and the algorithm, a DVD player
cannot access the contents of a DVD. With the player keys and the algorithm,
a DVD player can display the movie on a television or a computer screen,
but does not give a viewer the ability to use the copy function of the computer
to copy the movie or to manipulate the digital content of the DVD.
|||The studios developed a licensing scheme for distributing the technology
to manufacturers of DVD players. Player keys and other information necessary
to the CSS scheme were given to manufacturers of DVD players for an administrative
fee. In exchange for the licenses, manufacturers were obliged to keep the
player keys confidential. Manufacturers were also required in the licensing
agreement to prevent the transmission of "CSS data" (a term undefined
in the licensing agreement) from a DVD drive to any "internal recording
device," including, presumably, a computer hard drive.
|||With encryption technology and licensing agreements in hand, the studios
began releasing movies on DVDs in 1997, and DVDs quickly gained in popularity,
becoming a significant source of studio revenue. *fn4
In 1998, the studios secured added protection against DVD piracy when Congress
passed the DMCA, which prohibits the development or use of technology designed
to circumvent a technological protection measure, such as CSS. The pertinent
provisions of the DMCA are examined in greater detail below.
|||In September 1999, Jon Johansen, a Norwegian teenager, collaborating with
two unidentified individuals he met on the Internet, reverse-engineered
a licensed DVD player designed to operate on the Microsoft operating system,
and culled from it the player keys and other information necessary to decrypt
CSS. The record suggests that Johansen was trying to develop a DVD player
operable on Linux, an alternative operating system that did not support
any licensed DVD players at that time. In order to accomplish this task,
Johansen wrote a decryption program executable on Microsoft's operating
system. *fn5 That program was called,
appropriately enough, "DeCSS."
|||If a user runs the DeCSS program (for example, by clicking on the DeCSS
icon on a Microsoft operating system platform) with a DVD in the computer's
disk drive, DeCSS will decrypt the DVD's CSS protection, allowing the user
to copy the DVD's files and place the copy on the user's hard drive. The
result is a very large computer file that can be played on a non-CSS-compliant
player and copied, manipulated, and transferred just like any other computer
file. *fn6 DeCSS comes complete with a
fairly user-friendly interface that helps the user select from among the
DVD's files and assign the decrypted file a location on the user's hard
drive. The quality of the resulting decrypted movie is "virtually identical"
to that of the encrypted movie on the DVD. Universal I, 111 F. Supp. 2d
at 308, 313. And the file produced by DeCSS, while large, can be compressed
to a manageable size by a compression software called "DivX,"
available at no cost on the Internet. This compressed file can be copied
onto a DVD, or transferred over the Internet (with some patience). *fn7
|||Johansen posted the executable object code, but not the source code, for
DeCSS on his web site. The distinction between source code and object code
is relevant to this case, so a brief explanation is warranted. A computer
responds to electrical charges, the presence or absence of which is represented
by strings of 1's and 0's. Strictly speaking, "object code" consists
of those 1's and 0's. Trial Tr. at 759 (Testimony of Professor Edward Felton).
While some people can read and program in object code, "it would be
inconvenient, inefficient and, for most people, probably impossible to do
so." Universal I, 111 F. Supp. 2d at 306. Computer languages have been
written to facilitate program writing and reading. A program in such a computer
language--BASIC, C, and Java are examples--is said to be written in "source
code." Source code has the benefit of being much easier to read (by
people) than object code, but as a general matter, it must be translated
back to object code before it can be read by a computer. This task is usually
performed by a program called a compiler. Since computer languages range
in complexity, object code can be placed on one end of a spectrum, and different
kinds of source code can be arrayed across the spectrum according to the
ease with which they are read and understood by humans. See Trial Exhibits
BBC (Declaration of David S. Touretzky), BBE (Touretzky Article: Source
v. Object Code: A False Dichotomy). Within months of its appearance in executable
form on Johansen's web site, DeCSS was widely available on the Internet,
in both object code and various forms of source code. See Trial Exhibit
CCN (Touretzky Article: Gallery of CSS Descramblers).
|||In November 1999, Corley wrote and placed on his web site, 2600.com, an
article about the DeCSS phenomenon. His web site is an auxiliary to the
print magazine, 2600: The Hacker Quarterly, which Corley has been publishing
since 1984. *fn8 As the name suggests,
the magazine is designed for "hackers," as is the web site. While
the magazine and the web site cover some issues of general interest to computer
users--such as threats to online privacy--the focus of the publications
is on the vulnerability of computer security systems, and more specifically,
how to exploit that vulnerability in order to circumvent the security systems.
Representative articles explain how to steal an Internet domain name and
how to break into the computer systems at Federal Express. Universal I,
111 F. Supp. 2d at 308-09.
|||Corley's article about DeCSS detailed how CSS was cracked, and described
the movie industry's efforts to shut down web sites posting DeCSS. It also
explained that DeCSS could be used to copy DVDs. At the end of the article,
the Defendants posted copies of the object and source code of DeCSS. In
Corley's words, he added the code to the story because "in a journalistic
world, . . . [y]ou have to show your evidence . . . and particularly in
the magazine that I work for, people want to see specifically what it is
that we are referring to," including "what evidence . . . we have"
that there is in fact technology that circumvents CSS. Trial Tr. at 823.
Writing about DeCSS without including the DeCSS code would have been, to
Corley, "analogous to printing a story about a picture and not printing
the picture." Id. at 825. Corley also added to the article links that
he explained would take the reader to other web sites where DeCSS could
be found. Id. at 791, 826, 827, 848.
|||2600.com was only one of hundreds of web sites that began posting DeCSS
near the end of 1999. The movie industry tried to stem the tide by sending
cease-and-desist letters to many of these sites. These efforts met with
only partial success; a number of sites refused to remove DeCSS. In January
2000, the studios filed this lawsuit. *fn9
|||III. The DMCA
|||The DMCA was enacted in 1998 to implement the World Intellectual Property
Organization Copyright Treaty ("WIPO Treaty"), which requires
contracting parties to "provide adequate legal protection and effective
legal remedies against the circumvention of effective technological measures
that are used by authors in connection with the exercise of their rights
under this Treaty or the Berne Convention and that restrict acts, in respect
of their works, which are not authorized by the authors concerned or permitted
by law." WIPO Treaty, Apr. 12, 1997, art. 11, S. Treaty Doc. No. 105-17
(1997), available at 1997 WL 447232. Even before the treaty, Congress had
been devoting attention to the problems faced by copyright enforcement in
the digital age. Hearings on the topic have spanned several years. See,
e.g., WIPO Copyright Treaties Implementation Act and Online Copyright Liability
|||Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual
Property of the House Comm. on the Judiciary, 105th Cong. (1997); NII Copyright
Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on Courts
and Intellectual Property of the House Comm. on the Judiciary, 104th Cong.
(1996); NII Copyright Protection Act of 1995: Joint Hearing on H.R. 2441
and S. 1284 Before the Subcomm. on Courts and Intellectual Property of the
House Comm. on the Judiciary and the Senate Comm. on the Judiciary, 104th
Cong. (1995); H.R. Rep. No. 105-551 (1998); S. Rep. No. 105-190 (1998).
This legislative effort resulted in the DMCA.
|||The Act contains three provisions targeted at the circumvention of technological
protections. The first is subsection 1201(a)(1)(A), the anti-circumvention
provision. *fn10 This provision prohibits
a person from "circumvent[ing] a technological measure that effectively
controls access to a work protected under [Title 17, governing copyright]."
The Librarian of Congress is required to promulgate regulations every three
years exempting from this subsection individuals who would otherwise be
"adversely affected" in "their ability to make noninfringing
uses." 17 U.S.C. § 1201(a)(1)(B)-(E).
|||The second and third provisions are subsections 1201(a)(2) and 1201(b)(1),
the "anti-trafficking provisions." Subsection 1201(a)(2), the
provision at issue in this case, provides:
|||No person shall manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service, device, component,
or part thereof, that-
|||(A) is primarily designed or produced for the purpose of circumventing
a technological measure that effectively controls access to a work protected
under this title;
|||(B) has only limited commercially significant purpose or use other than
to circumvent a technological measure that effectively controls access to
a work protected under this title; or
|||(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing a technological
measure that effectively controls access to a work protected under this
title. Id. § 1201(a)(2).
|||To "circumvent a technological measure" is defined, in pertinent
part, as "to descramble a scrambled work . . . or otherwise to . .
. bypass . . . a technological measure, without the authority of the copyright
owner." Id. § 1201(a)(3)(A).
|||Subsection 1201(b)(1) is similar to subsection 1201(a)(2), except that
subsection 1201(a)(2) covers those who traffic in technology that can circumvent
"a technological measure that effectively controls access to a work
protected under" Title 17, whereas subsection 1201(b)(1) covers those
who traffic in technology that can circumvent "protection afforded
by a technological measure that effectively protects a right of a copyright
owner under" Title 17. Id. § 1201(a)(2), (b)(1) (emphases added). In
other words, although both subsections prohibit trafficking in a circumvention
technology, the focus of subsection 1201(a)(2) is circumvention of technologies
designed to prevent access to a work, and the focus of subsection 1201(b)(1)
is circumvention of technologies designed to permit access to a work but
prevent copying of the work or some other act that infringes a copyright.
See S. Rep. No. 105-190, at 11-12 (1998). Subsection 1201(a)(1) differs
from both of these anti- trafficking subsections in that it targets the
use of a circumvention technology, not the trafficking in such a technology.
|||The DMCA contains exceptions for schools and libraries that want to use
circumvention technologies to determine whether to purchase a copyrighted
product, 17 U.S.C. § 1201(d); individuals using circumvention technology
"for the sole purpose" of trying to achieve "interoperability"
of computer programs through reverse-engineering, id. § 1201(f); encryption
research aimed at identifying flaws in encryption technology, if the research
is conducted to advance the state of knowledge in the field, id. § 1201(g);
and several other exceptions not relevant here.
|||The DMCA creates civil remedies, id. § 1203, and criminal sanctions, id.
§ 1204. It specifically authorizes a court to "grant temporary and
permanent injunctions on such terms as it deems reasonable to prevent or
restrain a violation." Id. § 1203(b)(1).
|||IV. Procedural History
|||Invoking subsection 1203(b)(1), the Plaintiffs sought an injunction against
the Defendants, alleging that the Defendants violated the anti-trafficking
provisions of the statute. On January 20, 2000, after a hearing, the District
Court issued a preliminary injunction barring the Defendants from posting
DeCSS. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y.
|||The Defendants complied with the preliminary injunction, but continued
to post links to other web sites carrying DeCSS, an action they termed "electronic
civil disobedience." Universal I, 111 F. Supp. 2d at 303, 312. Under
the heading "Stop the MPAA [(Motion Picture Association of America)],"
Corley urged other web sites to post DeCSS lest "we . . . be forced
into submission." Id. at 313.
|||The Plaintiffs then sought a permanent injunction barring the Defendants
from both posting DeCSS and linking to sites containing DeCSS. After a trial
on the merits, the Court issued a comprehensive opinion, Universal I, and
granted a permanent injunction, Universal II.
|||The Court explained that the Defendants' posting of DeCSS on their web
site clearly falls within section 1201(a)(2)(A) of the DMCA, rejecting as
spurious their claim that CSS is not a technological measure that "effectively
controls access to a work" because it was so easily penetrated by Johansen,
Universal I, 111 F. Supp. 2d at 318, and as irrelevant their contention
that DeCSS was designed to create a Linux-platform DVD player, id. at 319.
The Court also held that the Defendants cannot avail themselves of any of
the DMCA's exceptions, id. at 319-22, and that the alleged importance of
DeCSS to certain fair uses of encrypted copyrighted material was immaterial
to their statutory liability, id. at 322-24. The Court went on to hold that
when the Defendants "proclaimed on their own site that DeCSS could
be had by clicking on the hyperlinks" on their site, they were trafficking
in DeCSS, and therefore liable for their linking as well as their posting.
Id. at 325.
|||Turning to the Defendants' numerous constitutional arguments, the Court
first held that computer code like DeCSS is "speech" that is "protected"
(in the sense of "covered") by the First Amendment, id. at 327,
but that because the DMCA is targeting the "functional" aspect
of that speech, id. at 328-29, it is "content neutral," id. at
329, *fn11 and the intermediate scrutiny
of United States v. O'Brien, 391 U.S. 367, 377 (1968), applies, Universal
I, 111 F. Supp. 2d at 329-30. The Court concluded that the DMCA survives
this scrutiny, id. at 330-33, and also rejected prior restraint, overbreadth,
and vagueness challenges, id. at 333-39.
|||The Court upheld the constitutionality of the DMCA's application to linking
on similar grounds: linking, the Court concluded, is "speech,"
but the DMCA is content-neutral, targeting only the functional components
of that speech. Therefore, its application to linking is also evaluated
under O'Brien, and, thus evaluated, survives intermediate scrutiny. However,
the Court concluded that a blanket proscription on linking would create
a risk of chilling legitimate linking on the web. The Court therefore crafted
a restrictive test for linking liability (discussed below) that it believed
sufficiently mitigated that risk. The Court then found its test satisfied
in this case. Id. at 339-41.
|||Finally, the Court concluded that an injunction was highly appropriate
in this case. The Court observed that DeCSS was harming the Plaintiffs,
not only because they were now exposed to the possibility of piracy and
therefore were obliged to develop costly new safeguards for DVDs, but also
because, even if there was only indirect evidence that DeCSS availability
actually facilitated DVD piracy, *fn12
the threat of piracy was very real, particularly as Internet transmission
speeds continue to increase. Id. at 314-15, 342. Acknowledging that DeCSS
was (and still is) widely available on the Internet, the Court expressed
|||the likelihood . . . that this decision will serve notice on others that
"the strong right arm of equity" may be brought to bear against
them absent a change in their conduct and thus contribute to a climate of
appropriate respect for intellectual property rights in an age in which
the excitement of ready access to untold quantities of information has blurred
in some minds the fact that taking what is not yours and not freely offered
to you is stealing. Id. at 345.
|||The Court's injunction barred the Defendants from: "posting on any
Internet web site" DeCSS; "in any other way . . . offering to
the public, providing, or otherwise trafficking in DeCSS"; violating
the anti-trafficking provisions of the DMCA in any other manner, and finally
"knowingly linking any Internet web site operated by them to any other
web site containing DeCSS, or knowingly maintaining any such link, for the
purpose of disseminating DeCSS." Universal II, 111 F. Supp. 2d at 346-47.
|||The Appellants have appealed from the permanent injunction. The United
States has intervened in support of the constitutionality of the DMCA. We
have also had the benefit of a number of amicus curiae briefs, supporting
and opposing the District Court's judgment. After oral argument, we invited
the parties to submit responses to a series of specific questions, and we
have received helpful responses.
|||I. Narrow Construction to Avoid Constitutional Doubt
|||The Appellants first argue that, because their constitutional arguments
are at least substantial, we should interpret the statute narrowly so as
to avoid constitutional problems. They identify three different instances
of alleged ambiguity in the statute that they claim provide an opportunity
for such a narrow interpretation.
|||First, they contend that subsection 1201(c)(1), which provides that "[n]othing
in this section shall affect rights, remedies, limitations or defenses to
copyright infringement, including fair use, under this title," can
be read to allow the circumvention of encryption technology protecting copyrighted
material when the material will be put to "fair uses" exempt from
copyright liability. *fn13 We disagree
that subsection 1201(c)(1) permits such a reading. Instead, it clearly and
simply clarifies that the DMCA targets the circumvention of digital walls
guarding copyrighted material (and trafficking in circumvention tools),
but does not concern itself with the use of those materials after circumvention
has occurred. Subsection 1201(c)(1) ensures that the DMCA is not read to
prohibit the "fair use" of information just because that information
was obtained in a manner made illegal by the DMCA. The Appellants' much
more expansive interpretation of subsection 1201(c)(1) is not only outside
the range of plausible readings of the provision, but is also clearly refuted
by the statute's legislative history. *fn14
See Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 841 (1986)
(constitutional doubt canon "does not give a court the prerogative
to ignore the legislative will").
|||Second, the Appellants urge a narrow construction of the DMCA because
of subsection 1201(c)(4), which provides that "[n]othing in this section
shall enlarge or diminish any rights of free speech or the press for activities
using consumer electronics, telecommunications, or computing products."
This language is clearly precatory: Congress could not "diminish"
constitutional rights of free speech even if it wished to, and the fact
that Congress also expressed a reluctance to "enlarge" those rights
cuts against the Appellants' effort to infer a narrowing construction of
the Act from this provision.
|||Third, the Appellants argue that an individual who buys a DVD has the
"authority of the copyright owner" to view the DVD, and therefore
is exempted from the DMCA pursuant to subsection 1201(a)(3)(A) when the
buyer circumvents an encryption technology in order to view the DVD on a
competing platform (such as Linux). The basic flaw in this argument is that
it misreads subsection 1201(a)(3)(A). That provision exempts from liability
those who would "decrypt" an encrypted DVD with the authority
of a copyright owner, not those who would "view" a DVD with the
authority of a copyright owner. *fn15
In any event, the Defendants offered no evidence that the Plaintiffs have
either explicitly or implicitly authorized DVD buyers to circumvent encryption
technology to support use on multiple platforms. *fn16
|||We conclude that the anti-trafficking and anti-circumvention provisions
of the DMCA are not susceptible to the narrow interpretations urged by the
Appellants. We therefore proceed to consider the Appellants' constitutional
|||II. Constitutional Challenge Based on the Copyright Clause
|||In a footnote to their brief, the Appellants appear to contend that the
DMCA, as construed by the District Court, exceeds the constitutional authority
of Congress to grant authors copyrights for a "limited time,"
U.S. Const. art. I, § 8, cl. 8, because it "empower[s] copyright owners
to effectively secure perpetual protection by mixing public domain works
with copyrighted materials, then locking both up with technological protection
measures." Brief for Appellants at 42 n.30. This argument is elaborated
in the amici curiae brief filed by Prof. Julie E. Cohen on behalf of herself
and 45 other intellectual property law professors. See also David Nimmer,
A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L.
Rev. 673, 712 (2000). For two reasons, the argument provides no basis for
disturbing the judgment of the District Court.
|||First, we have repeatedly ruled that arguments presented to us only in
a footnote are not entitled to appellate consideration. Concourse Rehabilitation
& Nursing Center Inc. v. DeBuono, 179 F.3d 38, 47 (2d Cir. 1999); United
States v. Mapp, 170 F.3d 328, 333 n.8 (2d Cir. 1999); United States v. Restrepo,
986 F.2d 1462, 1463 (2d Cir. 1993). Although an amicus brief can be helpful
in elaborating issues properly presented by the parties, it is normally
not a method for injecting new issues into an appeal, at least in cases
where the parties are competently represented by counsel. See, e.g., Concourse
Center, 179 F.3d at 47.
|||Second, to whatever extent the argument might have merit at some future
time in a case with a properly developed record, the argument is entirely
premature and speculative at this time on this record. There is not even
a claim, much less evidence, that any Plaintiff has sought to prevent copying
of public domain works, or that the injunction prevents the Defendants from
copying such works. As Judge Kaplan noted, the possibility that encryption
would preclude access to public domain works "does not yet appear to
be a problem, although it may emerge as one in the future." Universal
I, 111 F. Supp. 2d at 338 n.245.
|||III. Constitutional Challenges Based on the First Amendment
|||A. Applicable Principles
|||Last year, in one of our Court's first forays into First Amendment law
in the digital age, we took an "evolutionary" approach to the
task of tailoring familiar constitutional rules to novel technological circumstances,
favoring "narrow" holdings that would permit the law to mature
on a "case-by-case" basis. See Name.Space, Inc. v. Network Solutions,
Inc., 202 F.3d 573, 584 n.11 (2d Cir. 2000). In that spirit, we proceed,
with appropriate caution, to consider the Appellants' First Amendment challenges
by analyzing a series of preliminary issues the resolution of which provides
a basis for adjudicating the specific objections to the DMCA and its application
to DeCSS. These issues, which we consider only to the extent necessary to
resolve the pending appeal, are whether computer code is speech, whether
computer programs are speech, the scope of First Amendment protection for
computer code, and the scope of First Amendment protection for decryption
code. Based on our analysis of these issues, we then consider the Appellants'
challenge to the injunction's provisions concerning posting and linking.
|||1. Code as Speech
|||Communication does not lose constitutional protection as "speech"
simply because it is expressed in the language of computer code. Mathematical
formulae and musical scores are written in "code," i.e., symbolic
notations not comprehensible to the uninitiated, and yet both are covered
by the First Amendment. If someone chose to write a novel entirely in computer
object code by using strings of 1's and 0's for each letter of each word,
the resulting work would be no different for constitutional purposes than
if it had been written in English. The "object code" version would
be incomprehensible to readers outside the programming community (and tedious
to read even for most within the community), but it would be no more incomprehensible
than a work written in Sanskrit for those unversed in that language. The
undisputed evidence reveals that even pure object code can be, and often
is, read and understood by experienced programmers. And source code (in
any of its various levels of complexity) can be read by many more. See Universal
I, 111 F. Supp. 2d at 326. Ultimately, however, the ease with which a work
is comprehended is irrelevant to the constitutional inquiry. If computer
code is distinguishable from conventional speech for First Amendment purposes,
it is not because it is written in an obscure language. See Junger v. Daley,
209 F.3d 481, 484 (6th Cir. 2000).
|||2. Computer Programs as Speech
|||Of course, computer code is not likely to be the language in which a work
of literature is written. Instead, it is primarily the language for programs
executable by a computer. These programs are essentially instructions to
a computer. In general, programs may give instructions either to perform
a task or series of tasks when initiated by a single (or double) click of
a mouse or, once a program is operational ("launched"), to manipulate
data that the user enters into the computer. *fn17
Whether computer code that gives a computer instructions is "speech"
within the meaning of the First Amendment requires consideration of the
scope of the Constitution's protection of speech.
|||The First Amendment provides that "Congress shall make no law . .
. abridging the freedom of speech . . . ." U.S. Const. amend. I. "Speech"
is an elusive term, and judges and scholars have debated its bounds for
two centuries. Some would confine First Amendment protection to political
speech. E.g., Robert Bork, Neutral Principles and Some First Amendment Problems,
47 Ind. L.J. 1 (1971). Others would extend it further to artistic expression.
E.g., Marci A. Hamilton, Art Speech, 49 Vand. L. Rev. 73 (1996).
|||Whatever might be the merits of these and other approaches, the law has
not been so limited. Even dry information, devoid of advocacy, political
relevance, or artistic expression, has been accorded First Amendment protection.
See Miller v. California, 413 U.S. 15, 34 (1973) ("The First Amendment
protects works which, taken as a whole, have serious literary, artistic,
political, or scientific value . . . ." (emphasis added)); Roth v.
United States, 354 U.S. 476, 484 (1957) (First Amendment embraces "[a]ll
ideas having even the slightest redeeming social importance," including
the "'advancement of truth, science, morality, and arts in general.'"
(quoting 1 Journals of the Continental Congress 108 (1774))); Board of Trustees
of Stanford University v. Sullivan, 773 F. Supp. 472, 474 (D.D.C. 1991)
("It is . . . settled . . . that the First Amendment protects scientific
expression and debate just as it protects political and artistic expression.");
see also Kent Greenawalt, Speech, Crime and the Uses of Language 85 (1989)
("[A]ssertions of fact generally fall within a principle of freedom
of speech . . . ."); cf. Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976) ("prescription
drug price information" is "speech" because a consumer's
interest in "the free flow of commercial information" may be "keener
by far" than "his interest in the day's most urgent political
|||Thus, for example, courts have subjected to First Amendment scrutiny restrictions
on the dissemination of technical scientific information, United States
v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), and scientific
research, Stanford University, 773 F. Supp. at 473, and attempts to regulate
the publication of instructions, *fn18
see, e.g., United States v. Raymond, 228 F.3d 804, 815 (7th Cir. 2000) (First
Amendment does not protect instructions for violating the tax laws); United
States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir. 1983) (same); Herceg
v. Hustler Magazine, Inc., 814 F.2d 1017, 1020-25 (5th Cir. 1987) (First
Amendment protects instructions for engaging in a dangerous sex act); United
States v. Featherston, 461 F.2d 1119, 1122-23 (5th Cir. 1972) (First Amendment
does not protect instructions for building an explosive device); see also
Bernstein v. United States Department of State, 922 F. Supp. 1426, 1435
(N.D. Cal. 1996) ("Instructions, do-it- yourself manuals, [and] recipes"
are all "speech"). *fn19
|||Computer programs are not exempted from the category of First Amendment
speech simply because their instructions require use of a computer. A recipe
is no less "speech" because it calls for the use of an oven, and
a musical score is no less "speech" because it specifies performance
on an electric guitar. Arguably distinguishing computer programs from conventional
language instructions is the fact that programs are executable on a computer.
But the fact that a program has the capacity to direct the functioning of
a computer does not mean that it lacks the additional capacity to convey
information, and it is the conveying of information that renders instructions
"speech" for purposes of the First Amendment. *fn20
The information conveyed by most "instructions" is how to perform
|||Instructions such as computer code, which are intended to be executable
by a computer, will often convey information capable of comprehension and
assessment by a human being. *fn21 A
programmer reading a program learns information about instructing a computer,
and might use this information to improve personal programming skills and
perhaps the craft of programming. Moreover, programmers communicating ideas
to one another almost inevitably communicate in code, much as musicians
use notes. *fn22 Limiting First Amendment
protection of programmers to descriptions of computer code (but not the
code itself) would impede discourse among computer scholars, *fn23
just as limiting protection for musicians to descriptions of musical scores
(but not sequences of notes) would impede their exchange of ideas and expression.
Instructions that communicate information comprehensible to a human qualify
as speech whether the instructions are designed for execution by a computer
or a human (or both).
|||Vartuli is not to the contrary. The defendants in Vartuli marketed a software
program called "Recurrence," which would tell computer users when
to buy or sell currency futures contracts if their computers were fed currency
market rates. The Commodity Futures Trading Commission charged the defendants
with violating federal law for, among other things, failing to register
as commodity trading advisors for their distribution of the Recurrence software.
The defendants maintained that Recurrence's cues to users to buy or sell
were protected speech, and that the registration requirement as applied
to Recurrence was a constitutionally suspect prior restraint. We rejected
the defendants' constitutional claim, holding that Recurrence "in the
form it was sold and marketed by the defendants" did not generate speech
protected by the First Amendment. Vartuli, 228 F.3d at 111.
|||Essential to our ruling in Vartuli was the manner in which the defendants
marketed the software and intended that it be used: the defendants told
users of the software to follow the software's cues "with no second-guessing,"
id., and intended that users follow Recurrence's commands "mechanically"
and "without the intercession of the mind or the will of the recipient,"
id. We held that the values served by the First Amendment were not advanced
by these instructions, even though the instructions were expressed in words.
Id. We acknowledged that some users would, despite the defendants' marketing,
refuse to follow Recurrence's cues mechanically but instead would use the
commands as a source of information and advice, and that, as to these users,
Recurrence's cues might very "well have been `speech.'" Id. at
111-12. Nevertheless, we concluded that the Government could require registration
for Recurrence's intended use because such use was devoid of any constitutionally
protected speech. Id. at 112.
|||Vartuli considered two ways in which a programmer might be said to communicate
through code: to the user of the program (not necessarily protected) and
to the computer (never protected). *fn24
However, this does not mean that Vartuli denied First Amendment protection
to all computer programs. Since Vartuli limited its constitutional scrutiny
to the code "as marketed," i.e., as an automatic trading system,
it did not have occasion to consider a third manner in which a programmer
might communicate through code: to another programmer.
|||For all of these reasons, we join the other courts that have concluded
that computer code, and computer programs constructed from code can merit
First Amendment protection, see Junger, 209 F.3d at 484; *fn25
Bernstein, 922 F. Supp. at 1434-36; see also Bernstein, 176 F.3d at 1140-41;
Karn v. United States Department of State, 925 F. Supp. 1, 9-10 (D.D.C.
1996) (assuming, without deciding, that source code with English comments
interspersed throughout is "speech"), although the scope of such
protection remains to be determined.
|||3. The Scope of First Amendment Protection for Computer Code
|||Having concluded that computer code conveying information is "speech"
within the meaning of the First Amendment, we next consider, to a limited
extent, the scope of the protection that code enjoys. As the District Court
recognized, Universal I, 111 F. Supp. 2d at 327, the scope of protection
for speech generally depends on whether the restriction is imposed because
of the content of the speech. Content- based restrictions are permissible
only if they serve compelling state interests and do so by the least restrictive
means available. See Sable Communications of California, Inc. v. FCC, 492
U.S. 115, 126 (1989). A content-neutral restriction is permissible if it
serves a substantial governmental interest, the interest is unrelated to
the suppression of free expression, and the regulation is narrowly tailored,
which "in this context requires . . . that the means chosen do not
'burden substantially more speech than is necessary to further the government's
legitimate interests.'" Turner Broadcasting System, Inc. v. FCC, 512
U.S. 622, 662 (1994) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
799 (1989)). *fn26
|||"[G]overnment regulation of expressive activity is 'content neutral'
if it is justified without reference to the content of regulated speech."
Hill v. Colorado, 530 U.S. 703, 720 (2000). "The government's purpose
is the controlling consideration. A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others." Ward, 491 U.S.
at 791. The Supreme Court's approach to determining content-neutrality appears
to be applicable whether what is regulated is expression, see id. at 791-93
(regulation of volume of music), conduct, see O'Brien, 391 U.S. at 377,
or any "activity" that can be said to combine speech and non-speech
elements, see Spence v. Washington, 418 U.S. 405, 410-11 (1974) (applying
O'Brien to "activity" of displaying American flag hung upside
down and decorated with a peace symbol).
|||To determine whether regulation of computer code is content-neutral, the
initial inquiry must be whether the regulated activity is "sufficiently
imbued with elements of communication to fall within the scope of the First
. . . Amendment." Id. at 409; see also Name.Space, 202 F.3d at 585.
Computer code, as we have noted, often conveys information comprehensible
to human beings, even as it also directs a computer to perform various functions.
Once a speech component is identified, the inquiry then proceeds to whether
the regulation is "justified without reference to the content of regulated
speech." Hill, 530 U.S. at 720.
|||The Appellants vigorously reject the idea that computer code can be regulated
according to any different standard than that applicable to pure speech,
i.e., speech that lacks a nonspeech component. Although recognizing that
code is a series of instructions to a computer, they argue that code is
no different, for First Amendment purposes, than blueprints that instruct
an engineer or recipes that instruct a cook. See Supplemental Brief for
Appellants at 2, 3. *fn27 We disagree.
Unlike a blueprint or a recipe, which cannot yield any functional result
without human comprehension of its content, human decision-making, and human
action, computer code can instantly cause a computer to accomplish tasks
and instantly render the results of those tasks available throughout the
world via the Internet. The only human action required to achieve these
results can be as limited and instantaneous as a single click of a mouse.
These realities of what code is and what its normal functions are require
a First Amendment analysis that treats code as combining nonspeech and speech
elements, i.e., functional and expressive elements. See Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 386 (1969) ("[D]ifferences in the characteristics
of new media justify differences in the First Amendment standards applied
to them." (footnote omitted)).
|||We recognize, as did Judge Kaplan, that the functional capability of computer
code cannot yield a result until a human being decides to insert the disk
containing the code into a computer and causes it to perform its function
(or programs a computer to cause the code to perform its function). Nevertheless,
this momentary intercession of human action does not diminish the nonspeech
component of code, nor render code entirely speech, like a blueprint or
a recipe. Judge Kaplan, in a passage that merits extensive quotation, cogently
explained why this is especially so with respect to decryption code:
|||[T]he focus on functionality in order to determine the level of scrutiny
is not an inevitable consequence of the speech-conduct distinction. Conduct
has immediate effects on the environment. Computer code, on the other hand,
no matter how functional, causes a 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.
|||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 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.
|||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.
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. Universal I, 111 F. Supp. 2d at 331-32 (footnotes
|||The functionality of computer code properly affects the scope of its First
|||4. The Scope of First Amendment Protection for Decryption Code
|||In considering the scope of First Amendment protection for a decryption
program like DeCSS, we must recognize that the essential purpose of encryption
code is to prevent unauthorized access. Owners of all property rights are
entitled to prohibit access to their property by unauthorized persons. Homeowners
can install locks on the doors of their houses. Custodians of valuables
can place them in safes. Stores can attach to products security devices
that will activate alarms if the products are taken away without purchase.
These and similar security devices can be circumvented. Burglars can use
skeleton keys to open door locks. Thieves can obtain the combinations to
safes. Product security devices can be neutralized.
|||Our case concerns a security device, CSS computer code, that prevents
access by unauthorized persons to DVD movies. The CSS code is embedded in
the DVD movie. Access to the movie cannot be obtained unless a person has
a device, a licensed DVD player, equipped with computer code capable of
decrypting the CSS encryption code. In its basic function, CSS is like a
lock on a homeowner's door, a combination of a safe, or a security device
attached to a store's products.
|||DeCSS is computer code that can decrypt CSS. In its basic function, it
is like a skeleton key that can open a locked door, a combination that can
open a safe, or a device that can neutralize the security device attached
to a store's products. *fn28 DeCSS enables
anyone to gain access to a DVD movie without using a DVD player.
|||The initial use of DeCSS to gain access to a DVD movie creates no loss
to movie producers because the initial user must purchase the DVD. However,
once the DVD is purchased, DeCSS enables the initial user to copy the movie
in digital form and transmit it instantly in virtually limitless quantity,
thereby depriving the movie producer of sales. The advent of the Internet
creates the potential for instantaneous worldwide distribution of the copied
|||At first glance, one might think that Congress has as much authority to
regulate the distribution of computer code to decrypt DVD movies as it has
to regulate distribution of skeleton keys, combinations to safes, or devices
to neutralize store product security devices. However, despite the evident
legitimacy of protection against unauthorized access to DVD movies, just
like any other property, regulation of decryption code like DeCSS is challenged
in this case because DeCSS differs from a skeleton key in one important
respect: it not only is capable of performing the function of unlocking
the encrypted DVD movie, it also is a form of communication, albeit written
in a language not understood by the general public. As a communication,
the DeCSS code has a claim to being "speech," and as "speech,"
it has a claim to being protected by the First Amendment. But just as the
realities of what any computer code can accomplish must inform the scope
of its constitutional protection, so the capacity of a decryption program
like DeCSS to accomplish unauthorized--indeed, unlawful--access to materials
in which the Plaintiffs have intellectual property rights must inform and
limit the scope of its First Amendment protection. Cf. Red Lion, 395 U.S.
at 386 ("[D]ifferences in the characteristics of new media justify
differences in the First Amendment standards applied to them.").
|||With all of the foregoing considerations in mind, we next consider the
Appellants' First Amendment challenge to the DMCA as applied in the specific
prohibitions that have been imposed by the District Court's injunction.
|||B. First Amendment Challenge
|||The District Court's injunction applies the DMCA to the Defendants by
imposing two types of prohibition, both grounded on the anti-trafficking
provisions of the DMCA. The first prohibits posting DeCSS or any other technology
for circumventing CSS on any Internet web site. Universal II, 111 F. Supp.
2d at 346-47, ¶ 1(a), (b). The second prohibits knowingly linking any Internet
web site to any other web site containing DeCSS. Id. at 347, ¶ 1(c). The
validity of the posting and linking prohibitions must be considered separately.
|||The initial issue is whether the posting prohibition is content- neutral,
since, as we have explained, this classification determines the applicable
constitutional standard. The Appellants contend that the anti-trafficking
provisions of the DMCA and their application by means of the posting prohibition
of the injunction are content-based. They argue that the provisions "specifically
target . . . scientific expression based on the particular topic addressed
by that expression-- namely, techniques for circumventing CSS." Supplemental
Brief for Appellants at 1. We disagree. The Appellants' argument fails to
recognize that the target of the posting provisions of the injunction--
DeCSS--has both a nonspeech and a speech component, and that the DMCA, as
applied to the Appellants, and the posting prohibition of the injunction
target only the nonspeech component. Neither the DMCA nor the posting prohibition
is concerned with whatever capacity DeCSS might have for conveying information
to a human being, and that capacity, as previously explained, is what arguably
creates a speech component of the decryption code. The DMCA and the posting
prohibition are applied to DeCSS solely because of its capacity to instruct
a computer to decrypt CSS. That functional capability is not speech within
the meaning of the First Amendment. The Government seeks to "justif[y],"
Hill, 530 U.S. at 720, both the application of the DMCA and the posting
prohibition to the Appellants solely on the basis of the functional capability
of DeCSS to instruct a computer to decrypt CSS, i.e., "without reference
to the content of the regulated speech," id. This type of regulation
is therefore content-neutral, just as would be a restriction on trafficking
in skeleton keys identified because of their capacity to unlock jail cells,
even though some of the keys happened to bear a slogan or other legend that
qualified as a speech component.
|||As a content-neutral regulation with an incidental effect on a speech
component, the regulation must serve a substantial governmental interest,
the interest must be unrelated to the suppression of free expression, and
the incidental restriction on speech must not burden substantially more
speech than is necessary to further that interest. Turner Broadcasting,
512 U.S. at 662. The Government's interest in preventing unauthorized access
to encrypted copyrighted material is unquestionably substantial, and the
regulation of DeCSS by the posting prohibition plainly serves that interest.
Moreover, that interest is unrelated to the suppression of free expression.
The injunction regulates the posting of DeCSS, regardless of whether DeCSS
code contains any information comprehensible by human beings that would
qualify as speech. Whether the incidental regulation on speech burdens substantially
more speech than is necessary to further the interest in preventing unauthorized
access to copyrighted materials requires some elaboration.
|||Posting DeCSS on the Appellants' web site makes it instantly available
at the click of a mouse to any person in the world with access to the Internet,
and such person can then instantly transmit DeCSS to anyone else with Internet
access. Although the prohibition on posting prevents the Appellants from
conveying to others the speech component of DeCSS, the Appellants have not
suggested, much less shown, any technique for barring them from making this
instantaneous worldwide distribution of a decryption code that makes a lesser
restriction on the code's speech component. *fn29
It is true that the Government has alternative means of prohibiting unauthorized
access to copyrighted materials. For example, it can create criminal and
civil liability for those who gain unauthorized access, and thus it can
be argued that the restriction on posting DeCSS is not absolutely necessary
to preventing unauthorized access to copyrighted materials. But a content-neutral
regulation need not employ the least restrictive means of accomplishing
the governmental objective. Id. It need only avoid burdening "substantially
more speech than is necessary to further the government's legitimate interests."
Id. (internal quotation marks and citation omitted). The prohibition on
the Defendants' posting of DeCSS satisfies that standard. *fn30
|||In considering linking, we need to clarify the sense in which the injunction
prohibits such activity. Although the injunction defines several terms,
it does not define "linking." Nevertheless, it is evident from
the District Court's opinion that it is concerned with "hyperlinks,"
Universal I, 111 F. Supp. 2d at 307; see id. at 339. *fn31
A hyperlink is a cross-reference (in a distinctive font or color) appearing
on one web page that, when activated by the point-and-click of a mouse,
brings onto the computer screen another web page. The hyperlink can appear
on a screen (window) as text, such as the Internet address ("URL")
of the web page being called up or a word or phrase that identifies the
web page to be called up, for example, "DeCSS web site." Or the
hyperlink can appear as an image, for example, an icon depicting a person
sitting at a computer watching a DVD movie and text stating "click
here to access DeCSS and see DVD movies for free!" The code for the
web page containing the hyperlink contains a computer instruction that associates
the link with the URL of the web page to be accessed, such that clicking
on the hyperlink instructs the computer to enter the URL of the desired
web page and thereby access that page. With a hyperlink on a web page, the
linked web site is just one click away. *fn32
|||In applying the DMCA to linking (via hyperlinks), Judge Kaplan recognized,
as he had with DeCSS code, that a hyperlink has both a speech and a nonspeech
component. It conveys information, the Internet address of the linked web
page, and has the functional capacity to bring the content of the linked
web page to the user's computer screen (or, as Judge Kaplan put it, to "take
one almost instantaneously to the desired destination." Id.). As he
had ruled with respect to DeCSS code, he ruled that application of the DMCA
to the Defendants' linking to web sites containing DeCSS is content-neutral
because it is justified without regard to the speech component of the hyperlink.
Id. The linking prohibition applies whether or not the hyperlink contains
any information, comprehensible to a human being, as to the Internet address
of the web page being accessed. The linking prohibition is justified solely
by the functional capability of the hyperlink.
|||Applying the O'Brien/Ward/Turner Broadcasting requirements for content-neutral
regulation, Judge Kaplan then ruled that the DMCA, as applied to the Defendants'
linking, served substantial governmental interests and was unrelated to
the suppression of free expression. Id. We agree. He then carefully considered
the "closer call," id., as to whether a linking prohibition would
satisfy the narrow tailoring requirement. In an especially carefully considered
portion of his opinion, he observed that strict liability for linking to
web sites containing DeCSS would risk two impairments of free expression.
Web site operators would be inhibited from displaying links to various web
pages for fear that a linked page might contain DeCSS, and a prohibition
on linking to a web site containing DeCSS would curtail access to whatever
other information was contained at the accessed site. Id. at 340.
|||To avoid applying the DMCA in a manner that would "burden substantially
more speech than is necessary to further the government's legitimate interests,"
Turner Broadcasting, 512 U.S. at 662 (internal quotation marks and citation
omitted), Judge Kaplan adapted the standards of New York Times Co. v. Sullivan,
376 U.S. 254, 283 (1964), to fashion a limited prohibition against linking
to web sites containing DeCSS. He required clear and convincing evidence
|||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. Universal I,
111 F. Supp. 2d at 341.
|||He then found that the evidence satisfied his three-part test by his required
standard of proof. Id.
|||In response to our post-argument request for the parties' views on various
issues, including specifically Judge Kaplan's test for a linking prohibition,
the Appellants replied that his test was deficient for not requiring proof
of intent to cause, or aid or abet, harm, and that the only valid test for
a linking prohibition would be one that could validly apply to the publication
in a print medium of an address for obtaining prohibited material. Supplemental
Brief for Appellants at 14.
|||The Appellees and the Government accepted Judge Kaplan's criteria for
purposes of asserting the validity of the injunction as applied to the Appellants,
with the Government expressing reservations as to the standard of clear
and convincing evidence. Supplemental Brief for Appellees at 22-23; Supplemental
Brief for Government at 19-21.
|||Mindful of the cautious approach to First Amendment claims involving computer
technology expressed in Name.Space, 202 F.3d at 584 n.11, we see no need
on this appeal to determine whether a test as rigorous as Judge Kaplan's
is required to respond to First Amendment objections to the linking provision
of the injunction that he issued. It suffices to reject the Appellants'
contention that an intent to cause harm is required and that linking can
be enjoined only under circumstances applicable to a print medium. As they
have throughout their arguments, the Appellants ignore the reality of the
functional capacity of decryption computer code and hyperlinks to facilitate
instantaneous unauthorized access to copyrighted materials by anyone anywhere
in the world. Under the circumstances amply shown by the record, the injunction's
linking prohibition validly regulates the Appellants' opportunity instantly
to enable anyone anywhere to gain unauthorized access to copyrighted movies
on DVDs. *fn33
|||At oral argument, we asked the Government whether its undoubted power
to punish the distribution of obscene materials would permit an injunction
prohibiting a newspaper from printing addresses of bookstore locations carrying
such materials. In a properly cautious response, the Government stated that
the answer would depend on the circumstances of the publication. The Appellants'
supplemental papers enthusiastically embraced the arguable analogy between
printing bookstore addresses and displaying on a web page links to web sites
at which DeCSS may be accessed. Supplemental Brief for Appellants at 14.
They confidently asserted that publication of bookstore locations carrying
obscene material cannot be enjoined consistent with the First Amendment,
and that a prohibition against linking to web sites containing DeCSS is
similarly invalid. Id.
|||Like many analogies posited to illuminate legal issues, the bookstore
analogy is helpful primarily in identifying characteristics that distinguish
it from the context of the pending dispute. If a bookstore proprietor is
knowingly selling obscene materials, the evil of distributing such materials
can be prevented by injunctive relief against the unlawful distribution
(and similar distribution by others can be deterred by punishment of the
distributor). And if others publish the location of the bookstore, preventive
relief against a distributor can be effective before any significant distribution
of the prohibited materials has occurred. The digital world, however, creates
a very different problem. If obscene materials are posted on one web site
and other sites post hyperlinks to the first site, the materials are available
for instantaneous worldwide distribution before any preventive measures
can be effectively taken.
|||This reality obliges courts considering First Amendment claims in the
context of the pending case to choose between two unattractive alternatives:
either tolerate some impairment of communication in order to permit Congress
to prohibit decryption that may lawfully be prevented, or tolerate some
decryption in order to avoid some impairment of communication. Although
the parties dispute the extent of impairment of communication if the injunction
is upheld and the extent of decryption if it is vacated, and differ on the
availability and effectiveness of techniques for minimizing both consequences,
the fundamental choice between impairing some communication and tolerating
decryption cannot be entirely avoided.
|||In facing this choice, we are mindful that it is not for us to resolve
the issues of public policy implicated by the choice we have identified.
Those issues are for Congress. Our task is to determine whether the legislative
solution adopted by Congress, as applied to the Appellants by the District
Court's injunction, is consistent with the limitations of the First Amendment,
and we are satisfied that it is.
|||IV. Constitutional Challenge Based on Claimed Restriction of Fair Use
|||Asserting that fair use "is rooted in and required by both the Copyright
Clause and the First Amendment," Brief for Appellants at 42, the Appellants
contend that the DMCA, as applied by the District Court, unconstitutionally
"eliminates fair use" of copyrighted materials, id. at 41 (emphasis
added). We reject this extravagant claim.
|||Preliminarily, we note that the Supreme Court has never held that fair
use is constitutionally required, although some isolated statements in its
opinions might arguably be enlisted for such a requirement. In Stewart v.
Abend, 495 U.S. 207 (1990), cited by the Appellants, the Court merely noted
that fair use "'permits courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which that
law is designed to foster,'" id. (quoting Iowa State University Research
Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.
1980)); see also Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 560 (1985) (noting "the First Amendment protections already
embodied in the Copyright Act's distinction between copyrightable expression
and uncopyrightable facts and ideas, and the latitude for scholarship and
comment traditionally afforded by fair use"). In Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569 (1994), the Court observed, "From the infancy
of copyright protection, some opportunity for fair use of copyrighted materials
has been thought necessary to fulfill copyright's very purpose, `[t]o promote
the Progress of Science and useful Arts . . . .'" *fn34
Id. at 575 (citation omitted); see generally William F. Patry, The Fair
Use Privilege in Copyright Law 573-82 (2d ed. 1995) (questioning First Amendment
protection for fair use).
|||We need not explore the extent to which fair use might have constitutional
protection, grounded on either the First Amendment or the Copyright Clause,
because whatever validity a constitutional claim might have as to an application
of the DMCA that impairs fair use of copyrighted materials, such matters
are far beyond the scope of this lawsuit for several reasons. In the first
place, the Appellants do not claim to be making fair use of any copyrighted
materials, and nothing in the injunction prohibits them from making such
fair use. They are barred from trafficking in a decryption code that enables
unauthorized access to copyrighted materials.
|||Second, as the District Court properly noted, to whatever extent the anti-trafficking
provisions of the DMCA might prevent others from copying portions of DVD
movies in order to make fair use of them, "the evidence as to the impact
of the anti-trafficking provision[s] of the DMCA on prospective fair users
is scanty and fails adequately to address the issues." Universal I,
111 F. Supp. 2d at 338 n.246.
|||Third, the Appellants have provided no support for their premise that
fair use of DVD movies is constitutionally required to be made by copying
the original work in its original format. *fn35
Their examples of the fair uses that they believe others will be prevented
from making all involve copying in a digital format those portions of a
DVD movie amenable to fair use, a copying that would enable the fair user
to manipulate the digitally copied portions. One example is that of a school
child who wishes to copy images from a DVD movie to insert into the student's
documentary film. We know of no authority for the proposition that fair
use, as protected by the Copyright Act, much less the Constitution, guarantees
copying by the optimum method or in the identical format of the original.
Although the Appellants insisted at oral argument that they should not be
relegated to a "horse and buggy" technique in making fair use
of DVD movies, *fn36 the DMCA does not
impose even an arguable limitation on the opportunity to make a variety
of traditional fair uses of DVD movies, such as commenting on their content,
quoting excerpts from their screenplays, and even recording portions of
the video images and sounds on film or tape by pointing a camera, a camcorder,
or a microphone at a monitor as it displays the DVD movie. The fact that
the resulting copy will not be as perfect or as manipulable as a digital
copy obtained by having direct access to the DVD movie in its digital form,
provides no basis for a claim of unconstitutional limitation of fair use.
A film critic making fair use of a movie by quoting selected lines of dialogue
has no constitutionally valid claim that the review (in print or on television)
would be technologically superior if the reviewer had not been prevented
from using a movie camera in the theater, nor has an art student a valid
constitutional claim to fair use of a painting by photographing it in a
museum. Fair use has never been held to be a guarantee of access to copyrighted
material in order to copy it by the fair user's preferred technique or in
the format of the original.
|||We have considered all the other arguments of the Appellants and conclude
that they provide no basis for disturbing the District Court's judgment.
Accordingly, the judgment is affirmed.
|||*fn1 Honorable Alvin W. Thompson, United States District Court for the
District of Connecticut, sitting by designation.
|||*fn2 DVDs are similar to compact disks
(CDs), but differ, among other things, in that they hold far more data.
For detailed information concerning DVDs and CDs, see "Fast Guide to
CD/DVD" at http://searchWindowsManageability.techtarget.com/sDefinition/0,,sid_gci514667,00.html
(last updated Aug. 3, 2001).
|||*fn3 "2600" has special significance
to the hacker community. It is the hertz frequency ("a unit of frequency
of a periodic process equal to one cycle per second," Webster's Third
New International Dictionary 1061 (1993)) of a signal that some hackers
formerly used to explore the entire telephone system from "operator
mode," which was triggered by the transmission of a 2600 hertz tone
across a telephone line, Trial Tr. at 786-87, or to place telephone calls
without incurring long-distance toll charges, United States v. Brady, 820
F. Supp. 1346, 1355 & n.18 (D. Utah 1993). One such user reportedly
discovered that the sound of a toy whistle from a box of Cap'n Crunch cereal
matched the telephone company's 2600 hertz tone perfectly. Id. at 1355 n.18.
|||*fn4 By the end of 1997, most if not
all DVDs that were released were encrypted with CSS. Trial Tr. at 409; Universal
I, 111 F. Supp. 2d at 310. Moreover, DVD players were projected to be in
ten percent of United States homes by the end of 2000. Trial Tr. at 442;
Universal I, 111 F. Supp. 2d at 310. In fact, as of 2000, about thirty-five
percent of one studio's worldwide revenues from movie distribution was attributable
to DVD sales and rentals. Trial Tr. at 403; Universal I, 111 F. Supp. 2d
at 310 n.69.
|||*fn5 An operating system works with
the computer to perform the application's instructions. Generally, an executable
application can be played only on the operating system for which it is designed,
although interoperability has been improving. At the time of the trial,
DeCSS could be run only on the Microsoft Windows operating system. Trial
Tr. at 245 (Testimony of Robert W. Schumann).
|||*fn6 An item of some controversy, both
in this litigation and elsewhere, is the extent to which CSS-encrypted DVDs
can be copied even without DeCSS. The record leaves largely unclear how
CSS protects against the copying of a DVD, as contrasted with the playing
of a DVD on an unlicensed player. The Defendants' experts insisted that
there is nothing about the way CSS operates that prevents the copying of
a DVD. Declaration of Frank Stevenson ¶ 23 ("Bit-for-bit copying, which
precisely duplicates the content of one DVD to another, results in a fully-playable
product."); Trial Tr. at 751 (Testimony of Professor Edward Felten)
(CSS "could [not] have prevented the encrypted content from being copied
to somewhere else"); Deposition of Barbara Simons at 48-49, 77. Some
of the Plaintiffs' experts countered simply that "copying to a hard
drive is something that compliant DVD players are not allowed to do,"
without explaining why. Trial Tr. at 37 (Testimony of Dr. Michael I. Shamos);
see also Deposition of John J. Hoy at 347-48; Deposition of Fritz Attaway
at 83. Another expert indicated that while a DVD movie can be copied to
a computer's hard drive in encrypted form, the movie cannot be played without
a DVD actually present in the DVD drive. Deposition of Robert W. Schumann
at 153; Second Supplemental Declaration of Robert W. Schumann ¶ 15. This
expert did not identify the mechanism that prevents someone from copying
encrypted DVDs to a hard drive in the absence of a DVD in the disk drive.
However, none of this detracts from these undisputed findings: some feature
of either CSS itself, or another (unidentified) safeguard implemented by
DVD manufacturers pursuant to their obligations under the CSS licensing
scheme, makes it difficult to copy a CSS-encrypted DVD to a hard drive and
then compress that DVD to the point where transmission over the Internet
is practical. See Universal I, 111 F. Supp. 2d at 338. Conversely, a DVD
movie file without CSS encryption is easily copied, manipulated, and transferred.
See id. at 313. In other words, it might very well be that copying is not
blocked by CSS itself, but by some other protection implemented by the DVD
player manufacturers. Nonetheless, in decrypting CSS, the DeCSS program
(perhaps incidentally) sidesteps whatever it is that blocks copying of the
files. While there may be alternative means of extracting a non-encrypted,
copyable movie from a DVD--for example, by copying the movie along with
its encryption "bit-by-bit," or "ripping" a DVD by siphoning
movie file data after CSS has already been decrypted by a licensed player--DeCSS
is the superior means of acquiring easily copyable movies, see id. at 342,
and in fact, is recommended by a DVD compression web site as the preferred
tool for obtaining a decrypted DVD suitable for compression and transmission
over the Internet, see id. We acknowledge the complexity and the rapidly
changing nature of the technology involved in this case, but it is clear
that the Defendants have presented no evidence to refute any of these carefully
considered findings by the District Court.
|||*fn7 The District Court determined that
even at high speeds, typical of university networks, transmission times
ranged from three minutes to six hours. The Court noted, however, that "the
availability of high speed network connections in many businesses and institutions,
and their growing availability in homes, make Internet and other network
traffic in pirated copies a growing threat." Universal I, 111 F. Supp.
2d at 315.
|||*fn8 Defendant 2600 Enterprises, Inc.,
is the company Corley incorporated to run the magazine, maintain the web
site, and manage related endeavors like merchandising.
|||*fn9 The lawsuit was filed against Corley,
Shawn C. Reimerdes, and Roman Kazan. 2600 Enterprises, Inc., was later added
as a defendant. At an earlier stage of the litigation, the action was settled
as to Reimerdes and Kazan. See Universal II, 111 F. Supp. 2d at 346.
|||*fn10 For convenience, all references
to the DMCA are to the United State Code sections.
|||*fn11 In a supplemental Order, the
Court corrected a typographical error in its opinion in Universal I by changing
the first sentence of the first full paragraph at 111 F. Supp. 2d 328 to
read "Restrictions on the nonspeech elements of expressive conduct
fall into the content-neutral category." Universal City Studios, Inc.
v. Reimerdes, No. 00 Civ. 0277 (LAK) (S.D.N.Y. Aug. 17, 2001).
|||*fn12 For example, advertisements
for pirated DVDs rose dramatically in number after the release of DeCSS
on the web, and DVD file compression web sites recommend the use of DeCSS.
Universal I, 111 F. Supp. 2d at 342.
|||*fn13 In Part IV, infra, we consider
the Appellants' claim that the DMCA is unconstitutional because of its effect
on opportunities for fair use of copyrighted materials.
|||*fn14 The legislative history of the
enacted bill makes quite clear that Congress intended to adopt a "balanced"
approach to accommodating both piracy and fair use concerns, eschewing the
quick fix of simply exempting from the statute all circumventions for fair
use. H.R. Rep. No. 105-551, pt. 2, at 25 (1998). It sought to achieve this
goal principally through the use of what it called a "fail-safe"
provision in the statute, authorizing the Librarian of Congress to exempt
certain users from the anti-circumvention provision when it becomes evident
that in practice, the statute is adversely affecting certain kinds of fair
use. See 17 U.S.C. § 1201(a)(1)(C); H.R. Rep. No. 105-551, pt. 2, at 36
("Given the threat of a diminution of otherwise lawful access to works
and information, the Committee on Commerce believes that a 'fail-safe' mechanism
is required. This mechanism would . . . allow the . . . [waiver of the anti-
circumvention provisions], for limited time periods, if necessary to prevent
a diminution in the availability to individual users of a particular category
of copyrighted materials."). Congress also sought to implement a balanced
approach through statutory provisions that leave limited areas of breathing
space for fair use. A good example is subsection 1201(d), which allows a
library or educational institution to circumvent a digital wall in order
to determine whether it wishes legitimately to obtain the material behind
the wall. See H.R. Rep. No. 105-551, pt. 2, at 41. It would be strange for
Congress to open small, carefully limited windows for circumvention to permit
fair use in subsection 1201(d) if it then meant to exempt in subsection
1201(c)(1) any circumvention necessary for fair use.
|||*fn15 This is actually what subsection
1201(a)(3)(A) means when read in conjunction with the anti-circumvention
provisions. When read together with the anti-trafficking provisions, subsection
1201(a)(3)(A) frees an individual to traffic in encryption technology designed
or marketed to circumvent an encryption measure if the owner of the material
protected by the encryption measure authorizes that circumvention.
|||*fn16 Even if the Defendants had been
able to offer such evidence, and even if they could have demonstrated that
DeCSS was "primarily designed . . . for the purpose of" playing
DVDs on multiple platforms (and therefore not for the purpose of "circumventing
a technological measure"), a proposition questioned by Judge Kaplan,
see Universal I, 111 F. Supp. 2d at 311 n.79, the Defendants would defeat
liability only under subsection 1201(a)(2)(A). They would still be vulnerable
to liability under subsection 1201(a)(2)(C), because they "marketed"
DeCSS for the copying of DVDs, not just for the playing of DVDs on multiple
platforms. See, e.g., Trial Tr. at 820.
|||*fn17 For example, a program (or part
of a program) will give a computer the direction to "launch" a
word-processing program like WordPerfect when the icon for WordPerfect is
clicked; a program like WordPerfect will give the computer directions to
display letters on a screen and manipulate them according to the computer
user's preferences whenever the appropriate keys are struck.
|||*fn18 We note that instructions are
of varied types. See Vartuli, 228 F.3d at 111. "Orders" from one
member of a conspiracy to another member, or from a superior to a subordinate,
might resemble instructions but nonetheless warrant less or even no constitutional
protection because their capacity to inform is meager, and because it is
unlikely that the recipient of the order will engage in the "intercession
of . . . mind or . . . will" characteristic of the sort of communication
between two parties protected by the Constitution, see id. at 111-12 (noting
that statements in the form of orders, instructions, or commands cannot
claim "talismanic immunity from constitutional limitations" but
"should be subjected to careful and particularized analysis to ensure
that no speech entitled to First Amendment protection fails to receive it");
Kent Greenawalt, Speech and Crime, Am. B. Found. Res. J. 645, 743-44 (1980).
|||*fn19 These cases almost always concern
instructions on how to commit illegal acts. Several courts have concluded
that such instructions fall outside the First Amendment. However, these
conclusions never rest on the fact that the speech took the form of instructions,
but rather on the fact that the instructions counseled the listener how
to commit illegal acts. See, e.g., Rice v. Paladin Enterprises, Inc., 128
F.3d 233, 247-49 (4th Cir. 1997); United States v. Barnett, 667 F.2d 835,
842 (9th Cir. 1982). None of these opinions even hints that instructions
are a form of speech categorically outside the First Amendment.
|||*fn20 Of course, we do not mean to
suggest that the communication of "information" is a prerequisite
of protected "speech." Protected speech may communicate, among
other things, ideas, emotions, or thoughts. We identify "information"
only because this is what computer programs most often communicate, in addition
to giving directions to a computer.
|||*fn21 However, in the rare case where
a human's mental faculties do not intercede in executing the instructions,
we have withheld protection. See Vartuli, 228 F.3d at 111.
|||*fn22 Programmers use snippets of
code to convey their ideas for new programs; economists and other creators
of computer models publish the code of their models in order to demonstrate
the models' vigor. Brief of Amici Curiae Dr. Harold Abelson et al. at 17;
Brief of Amici Curiae Steven Bellovin et al. at 12-13; see also Bernstein
v. United States Department of Justice, 176 F.3d 1132, 1141 (9th Cir.) (concluding
that computer source code is speech because it is "the preferred means"
of communication among computer programmers and cryptographers), reh'g in
banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999).
|||*fn23 Reinforcing the conclusion that
software programs qualify as "speech" for First Amendment purposes--even
though they instruct computers- -is the accelerated blurring of the line
between "source code" and conventional "speech." There
already exist programs capable of translating English descriptions of a
program into source code. Trial Tr. at 1101-02 (Testimony of Professor Andrew
Appel). These programs are functionally indistinguishable from the compilers
that routinely translate source code into object code. These new programs
(still apparently rudimentary) hold the potential for turning "prose"
instructions on how to write a computer program into the program itself.
Even if there were an argument for exempting the latter from First Amendment
protection, the former are clearly protected for the reasons set forth in
the text. As technology becomes more sophisticated, instructions to other
humans will increasingly be executable by computers as well.
|||*fn24 Vartuli reasoned that the interaction
between "programming commands as triggers and semiconductors as a conduit,"
even though communication, is not "speech" within the meaning
of the First Amendment and that the communication between Recurrence and
a customer using it as intended was similarly not "speech." Vartuli,
228 F.2d at 111.
|||*fn25 The reasoning of Junger has
recently been criticized. See Orin S. Kerr, Are We Overprotecting Code?
Thoughts on First-Generation Internet Law, 57 Wash. & Lee L. Rev. 1287
(2000). Prof. Kerr apprehends that if encryption code is First Amendment
speech because it conveys "ideas about cryptography," Junger,
209 F.3d at 484, all code will be protected "because code will always
convey information about itself." Kerr, supra, at 1291. That should
not suffice, he argues, because handing someone an object, for example,
a padlock, is a good way of communicating how that object works, yet a padlock
is not speech. Id. at 1291-92. However, code does not cease to be speech
just because some objects that convey information are not speech. Both code
and a padlock can convey information, but only code, because it uses a notational
system comprehensible by humans, is communication that qualifies as speech.
Prof. Kerr might be right that making the communication of ideas or information
the test of whether code is speech provides First Amendment coverage to
many, perhaps most, computer programs, but that is a consequence of the
information-conveying capacity of the programs, not a reason for denying
them First Amendment coverage.
|||*fn26 The Supreme Court has used slightly
different formulations to express the narrow tailoring requirement of a
content-neutral regulation. In O'Brien, the formulation was "if the
incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest." 391 U.S. at
377. In Ward, the formulation was "'so long as the . . . regulation
promotes a substantial government interest that would be achieved less effectively
absent the regulation.'" 491 U.S. at 799 (quoting United States v.
Albertini, 472 U.S. 675, 689 (1985)). Ward added, however, that the regulation
may not "burden substantially more speech than is necessary to further
the government's legitimate interests." Id. (emphasis added). Turner
Broadcasting quoted both the "no greater than is essential" formulation
from O'Brien, see Turner Broadcasting, 512 U.S. at 662, and the "would
be achieved less effectively" formulation from Ward, see id. Turner
Broadcasting made clear that the narrow tailoring requirement is less demanding
than the least restrictive means requirement of a content-specific regulation,
id., and appears to have settled on the "substantially more" phrasing
from Ward as the formulation that best expresses the requirement, id. That
is the formulation we will apply.
|||*fn27 This argument is elaborated
by some of the amici curiae. "In the absence of human intervention,
code does not function, it engages in no conduct. It is as passive as a
cake recipe." Brief of Amici Curiae Dr. Harold Abelson et al. at 26.
|||*fn28 More dramatically, the Government
calls DeCSS "a digital crowbar." Brief for Intervenor United States
|||*fn29 Briefs of some of the amici
curiae discuss the possibility of adequate protection against copying of
copyrighted materials by adopting the approach of the Audio Home Recording
Act of 1992, 17 U.S.C. § 1002(a), which requires digital audio tape recorders
to include a technology that prevents serial copying, but permits making
a single copy. See, e.g., Brief of Amici Curiae Benkler and Lessig at 15.
However, the Defendants did not present evidence of the current feasibility
of a similar solution to prevent serial copying of DVDs over the Internet.
Even if the Government, in defending the DMCA, must sustain a burden of
proof in order to satisfy the standards for content-neutral regulation,
the Defendants must adduce enough evidence to create fact issues concerning
the current availability of less intrusive technological solutions. They
did not do so in the District Court. Moreover, we note that when Congress
opted for the solution to serial copying of digital audio tapes, it imposed
a special royalty on manufacturers of digital audio recording devices to
be distributed to appropriate copyright holders. See 17 U.S.C. §§ 1003-1007.
We doubt if the First Amendment required Congress to adopt a similar technology/royalty
scheme for regulating the copying of DVDs, but in any event the record in
this case provides no basis for invalidating the anti- trafficking provisions
of the DMCA or the injunction for lack of such an alternative approach.
|||*fn30 We have considered the opinion
of a California intermediate appellate court in DVD Copy Control Ass'n v.
Bunner, No. H021153, 2001 WL 1340619 (Cal. Ct. App., 6th Dist. Nov. 1, 2001),
declining, on First Amendment grounds, to issue a preliminary injunction
under state trade secrets law prohibiting a web site operator from posting
DeCSS. To the extent that DVD Copy Control disagrees with our First Amendment
analysis, we decline to follow it.
|||*fn31 "Hyperlinks" are also
called "hypertext links" or "active links."
|||*fn32 "Linking" not accomplished
by a hyperlink would simply involve the posting of the Internet address
("URL") of another web page. A "link" of this sort is
sometimes called an "inactive link." With an inactive link, the
linked web page would be only four clicks away, one click to select the
URL address for copying, one click to copy the address, one click to "paste"
the address into the text box for URL addresses, and one click (or striking
the "enter" key) to instruct the computer to call up the linked
|||*fn33 We acknowledge that the prohibition
on linking restricts more than Corley's ability to facilitate instant access
to DeCSS on linked web sites; it also restricts his ability to facilitate
access to whatever protected speech is available on those sites. However,
those who maintain the linked sites can instantly make their protected material
available for linking by Corley by the simple expedient of deleting DeCSS
from their web sites.
|||*fn34 Although we have recognized
that the First Amendment provides no entitlement to use copyrighted materials
beyond that accorded by the privilege of fair use, except in "an extraordinary
case," Twin Peaks Productions, Inc. v. Publications International,
Ltd., 996 F.2d 1366, 1378 (2d Cir. 1993), we have not ruled that the Constitution
guarantees any particular formulation or minimum availability of the fair
|||*fn35 As expressed in their supplemental
papers, the position of the Appellants is that "fair use extends to
works in whatever form they are offered to the public," Supplemental
Brief for Appellants at 20, by which we understand the Appellants to contend
not merely that fair use may be made of DVD movies but that the fair user
must be permitted access to the digital version of the DVD in order to directly
copy excerpts for fair use in a digital format.
|||*fn36 In their supplemental papers,
the Appellants contend, rather hyperbolically, that a prohibition on using
copying machines to assist in making fair use of texts could not validly
be upheld by the availability of "monks to scribe the relevant passages."
Supplemental Brief for Appellants at 20.
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