DeCSS, First Amendment and Hyperlinks: Universal City Studios Inc. v. Reimerdes
United States District Court,
Superior Court of California, County of Santa Clara
August 17, 2000
Plaintiffs, eight major United States motion picture studios, distribute many
of their copyrighted motion pictures for home use on digital versatile disks
("DVDs"), which contain copies of the motion pictures in digital form.
They protect those motion pictures from copying by using an encryption system
called CSS. CSS-protected motion pictures on DVDs may be viewed only on players
and computer drives equipped with licensed technology that permits the devices
to decrypt and play--but not to copy--the films.
Late last year, computer hackers devised a computer program called DeCSS that
circumvents the CSS protection system and allows CSS-protected motion pictures
to be copied and played on devices that lack the licensed decryption technology.
Defendants quickly posted DeCSS on their Internet web site, thus making it
readily available to much of the world. Plaintiffs promptly brought this action
under the Digital Millennium Copyright Act (the "DMCA") (1) to enjoin
defendants from posting DeCSS and to prevent them from electronically
"linking" their site to others that post DeCSS. Defendants responded
with what they termed "electronic civil disobedience"--increasing
their efforts to link their web site to a large number of others that continue
to make DeCSS available.
Defendants contend that their actions do not violate the DMCA and, in any
case, that the DMCA, as applied to computer programs, or code, violates the
First Amendment. (2) This is the Court's decision after trial, and the decision
may be summarized in a nutshell.
Defendants argue first that the DMCA should not be construed to reach their
conduct, principally because the DMCA, so applied, could prevent those who wish
to gain access to technologically protected copyrighted works in order to make
fair--that is, non-infringing--use of them from doing so. They argue that those
who would make fair use of technologically protected copyrighted works need
means, such as DeCSS, of circumventing access control measures not for piracy,
but to make lawful use of those works.
Technological access control measures have the capacity to prevent fair uses
of copyrighted works as well as foul. Hence, there is a potential tension
between the use of such access control measures and fair use. Defendants are not
the first to recognize that possibility. As the DMCA made its way through the
legislative process, Congress was preoccupied with precisely this issue.
Proponents of strong restrictions on circumvention of access control measures
argued that they were essential if copyright holders were to make their works
available in digital form because digital works otherwise could be pirated too
easily. Opponents contended that strong anti-circumvention measures would extend
the copyright monopoly inappropriately and prevent many fair uses of copyrighted
As this case involves computers and technology with which many are unfamiliar,
it is useful to begin by defining some of the vocabulary.
A. The Vocabulary of this Case
1. Computers and Operating Systems
A computer is "a digital information processing device . . . . consist [ing]
of central processing components . . . and mass data storage . . . . certain
peripheral input/output devices . . ., and an operating system." Personal
computers ("PCs") are computers designed for use by one person at a
time. " [M]ore powerful, more expensive computer systems known as 'servers'
. . . are designed to provide data, services, and functionality through a
digital network to multiple users." 4
An operating system is "a software program that controls the allocation
and use of computer resources (such as central processing unit time, main memory
space, disk space, and input/output channels). The operating system also
supports the functions of software programs, called 'applications,' that perform
specific user-oriented tasks . . . . Because it supports applications while
interacting more closely with the PC system's hardware, the operating system is
said to serve as a 'platform.' " 5
Microsoft Windows ("Windows") is an operating system released by
Microsoft Corp. It is the most widely used operating system for PCs in the
United States, and its versions include Windows 95, Windows 98, Windows NT and
Linux, which was and continues to be developed through the open source model
of software development, 6
also is an operating system. 7
It can be run on a PC as an alternative to Windows, although the extent to which
it is so used is limited. 8
Linux is more widely used on servers. 9
2. Computer Code
" [C]omputers come down to one basic premise: They operate with a
series of on and off switches, using two digits in the binary (base 2) number
system--0 (for off) and 1 (for on)." 10
All data and instructions input to or contained in computers therefore must be
reduced the numerals 1 and 0. 11
"The smallest unit of memory in a computer," a bit, "is a
switch with a value of 0 (off) or 1 (on)." 12
A group of eight bits is called a byte and represents a character--a letter or
an integer. 13
A kilobyte ("K") is 1024 bytes, a megabyte ("MB") 1024
kilobytes, and a gigabyte ("GB") 1024 kilobytes. 14
Some highly skilled human beings can reduce data and instructions to strings
of 1's and 0's and thus program computers to perform complex tasks by inputting
commands and data in that form. 15
But it would be inconvenient, inefficient and, for most people, probably
impossible to do so. In consequence, computer science has developed programming
languages. These languages, like other written languages, employ symbols and
syntax to convey meaning. The text of programs written in these languages is
referred to as source code. 16
And whether directly or through the medium of another program, 17
the sets of instructions written in programming languages--the source
code--ultimately are translated into machine "readable" strings of 1's
and 0's, known in the computer world as object code, which typically are
executable by the computer. 18
The distinction between source and object code is not as crystal clear as
first appears. Depending upon the programming language, source code may contain
many 1's and 0's and look a lot like object code or may contain many
instructions derived from spoken human language. Programming languages the
source code for which approaches object code are referred to as low level source
code while those that are more similar to spoken language are referred to as
high level source code.
All code is human readable. As source code is closer to human language than
is object code, it tends to be comprehended more easily by humans than object
3. The Internet and the World Wide Web
The Internet is "a global electronic network, consisting of smaller,
interconnected networks, which allows millions of computers to exchange
information over telephone wires, dedicated data cables, and wireless links. The
Internet links PCs by means of servers, which run specialized operating systems
and applications designed for servicing a network environment." 19
Internet Relay Chat ("IRC") is a system that enables individuals
connected to the Internet to participate in live typed discussions. 20
Participation in an IRC discussion requires an IRC software program, which sends
messages via the Internet to the IRC server, which in turn broadcasts the
messages to all participants. The IRC system is capable of supporting many
separate discussions at once.
The World Wide Web (the "Web") is "a massive collection of
digital information resources stored on servers throughout the Internet. These
resources are typically provided in the form of hypertext documents, commonly
referred to as 'Web pages,' that may incorporate any combination of text,
graphics, audio and video content, software programs, and other data. A user of
a computer connected to the Internet can publish a page on the Web simply by
copying it into a specially designated, publicly accessible directory on a Web
server. Some Web resources are in the form of applications that provide
functionality through a user's PC system but actually execute on a server."
A web site is "a collection of Web pages [published on the Web by an
individual or organization] . . . . Most Web pages are in the form of 'hypertext';
that is, they contain annotated references, or 'hyperlinks,' to other Web pages.
Hyperlinks can be used as cross-references within a single document, between
documents on the same site, or between documents on different sites." 22
A home page is "one page on each Web site . . . [that typically serves
as] the first access point to the site. The home page is usually a hypertext
document that presents an overview of the site and hyperlinks to the other pages
comprising the site." 23
A Web client is "software that, when running on a computer connected to
the Internet, sends information to and receives information from Web servers
throughout the Internet. Web clients and servers transfer data using a standard
known as the Hypertext Transfer Protocol ('HTTP'). A 'Web browser' is a type of
Web client that enables a user to select, retrieve, and perceive resources on
the Web. In particular, Web browsers provide a way for a user to view hypertext
documents and follow the hyperlinks that connect them, typically by moving the
cursor over a link and depressing the mouse button." 24
4. Portable Storage Media
Digital files may be stored on several different kinds of storage media, some
of which are readily transportable. Perhaps the most familiar of these are so
called floppy disks or "floppies," which now are 3 1/2 inch magnetic
disks upon which digital files may be recorded. 25
For present purposes, however, we are concerned principally with two more recent
developments, CD-ROMs and digital versatile disks, or DVDs.
A CD-ROM is a five-inch wide optical disk capable of storing approximately
650 MB of data. To read the data on a CD-ROM, a computer must have a CD-ROM
DVDs are five-inch wide disks capable of storing more than 4.7 GB of data. In
the application relevant here, they are used to hold full-length motion pictures
in digital form. They are the latest technology for private home viewing of
recorded motion pictures and result in drastically improved audio and visual
clarity and quality of motion pictures shown on televisions or computer screens.
5. The Technology Here at Issue
CSS, or Content Scramble System, is an access control and copy prevention
system for DVDs developed by the motion picture companies, including plaintiffs.
27 It is
an encryption-based system that requires the use of appropriately configured
hardware such as a DVD player or a computer DVD drive to decrypt, unscramble and
play back, but not copy, motion pictures on DVDs. 28
The technology necessary to configure DVD players and drives to play
CSS-protected DVDs 29
has been licensed to hundreds of manufacturers in the United States and around
DeCSS is a software utility, or computer program, that enables users to break
the CSS copy protection system and hence to view DVDs on unlicenced players and
make digital copies of DVD movies. 30
The quality of motion pictures decrypted by DeCSS is virtually identical to that
of encrypted movies on DVD. 31
DivX is a compression program available for download over the Internet.
It compresses video files in order to minimize required storage space, often to
facilitate transfer over the Internet or other networks. 33
Plaintiffs are eight major motion picture studios. Each is in the business of
producing and distributing copyrighted material including motion pictures. Each
distributes, either directly or through affiliates, copyrighted motion pictures
on DVDs. 34
Plaintiffs produce and distribute a large majority of the motion pictures on
DVDs on the market today. 35
Defendant Eric Corley is viewed as a leader of the computer hacker community
and goes by the name Emmanuel Goldstein, after the leader of the underground in
George Orwell's classic, 1984. 36
He and his company, defendant 2600 Enterprises, Inc., together publish a
magazine called 2600: The Hacker Quarterly, which Corley founded in 1984, 37
and which is something of a bible to the hacker community. 38
The name "2600" was derived from the fact that hackers in the 1960's
found that the transmission of a 2600 hertz tone over a long distance trunk
connection gained access to "operator mode" and allowed the user to
explore aspects of the telephone system that were not otherwise accessible. 39
Mr. Corley chose the name because he regarded it as a "mystical thing,"
commemorating something that he evidently admired. Not surprisingly, 2600: The
Hacker Quarterly has included articles on such topics as how to steal an
Internet domain name, 41
access other people's e-mail, 42
intercept cellular phone calls, 43
and break into
the computer systems at Costco stores
and Federal Express.4 45
One issue contains a guide to the federal criminal justice system for readers
charged with computer hacking. 46
In addition, defendants operate a web site located at (http://www.2600.com)
("2600.com"), which is managed primarily by Mr. Corley and has been in
existence since 1995. 47
Prior to January 2000, when this action was commenced, defendants posted the
source and object code for DeCSS on the 2600.com web site, from which they could
be downloaded easily. 48
At that time, 2600.com contained also a list of links to other web sites
purporting to post DeCSS. 49
C. The Development of DVD and CSS
The major motion picture studios typically distribute films in a sequence of
so-called windows, each window referring to a separate channel of distribution
and thus to a separate source of revenue. The first window generally is
theatrical release, distribution, and exhibition. Subsequently, films are
distributed to airlines and hotels, then to the home market, then to pay
television, cable and, eventually, free television broadcast. The home market is
important to plaintiffs, as it represents a significant source of revenue. 50
Motion pictures first were, and still are, distributed to the home market in
the form of video cassette tapes. In the early 1990's, however, the major movie
studios began to explore distribution to the home market in digital format,
which offered substantially higher audio and visual quality and greater
longevity than video cassette tapes. 51
This technology, which in 1995 became what is known today as DVD, 52
brought with it a new problem--increased risk of piracy by virtue of the fact
that digital files, unlike the material on video cassettes, can be copied
without degradation from generation to generation. 53
In consequence, the movie studios became concerned as the product neared market
with the threat of DVD piracy. 54
Discussions among the studios with the goal of organizing a unified response
to the piracy threat began in earnest in late 1995 or early 1996. 55
They eventually came to include representatives of the consumer electronics and
computer industries, as well as interested members of the public, 56
and focused on both legislative proposals and technological solutions. 57
In 1996, Matsushita Electric Industrial Co. ("MEI") and Toshiba Corp.,
presented--and the studios adopted--CSS. 58
CSS involves encrypting, according to an encryption algorithm,
the digital sound and graphics files on a DVD that together constitute a motion
picture. A CSS-protected DVD can be decrypted by an appropriate decryption
algorithm that employs a series of keys stored on the DVD and the DVD player. In
consequence, only players and drives containing the appropriate keys are able to
decrypt DVD files and thereby play movies stored on DVDs.
As the motion picture companies did not themselves develop CSS and, in any
case, are not in the business of making DVD players and drives, the technology
for making compliant devices, i.e., devices with CSS keys, had to be licensed to
consumer electronics manufacturers. 60
In order to ensure that the decryption technology did not become generally
available and that compliant devices could not be used to copy as well as merely
to play CSS-protected movies, the technology is licensed subject to strict
security requirements. 61
Moreover, manufacturers may not,
consistent with their licenses, make equipment that would supply digital
output that could be used in copying protected DVDs. 62
Licenses to manufacture compliant devices are granted on a royalty-free basis
subject only to an administrative fee. 63
At the time of trial, licenses had been issued to numerous hardware and software
manufacturers, including two companies that plan to release DVD players for
computers running the Linux operating system. 64
With CSS in place, the studios introduced DVDs on the consumer market in
early 1997. 65
All or most of the motion pictures released on DVD were, and continue to be,
encrypted with CSS technology. 66
Over 4,000 motion pictures now have been released in DVD format in the United
States, and movies are being issued on DVD at the rate of over 40
new titles per month in addition to rereleases of classic films. Currently, more
than five million households in the United States own DVD players, 67
and players are projected to be in ten percent of United States homes by the end
of 2000. 68
DVDs have proven not only popular, but lucrative for the studios. Revenue
from their sale and rental currently accounts for a substantial percentage of
the movie studios' revenue from the home video market. 69
Revenue from the home market, in turn, makes up a large percentage of the
studios' total distribution revenue. 70
D. The Appearance of DeCSS
In late September 1999, Jon Johansen, a Norwegian subject then fifteen years
of age, and two individuals he "met" under pseudonyms over the
Internet, reverse engineered a licensed DVD player and discovered the CSS
encryption algorithm and keys. 71
They used this information to create DeCSS, a program capable of decrypting or
"ripping" encrypted DVDs, thereby allowing playback on non-compliant
computers as well as the copying of decrypted files to computer hard drives. 72
Mr. Johansen then posted the executable code on his personal Internet web site
and informed members of an Internet mailing list that he had done so. 73
Neither Mr. Johansen nor his collaborators obtained a license from the DVD CCA. 74
Although Mr. Johansen testified at trial that he created DeCSS in order to
make a DVD player that would operate on a computer running the Linux operating
DeCSS is a Windows executable file; that is, it can be executed only on
computers running the Windows operating system. 76
Mr. Johansen explained the fact that he created a Windows rather than a Linux
program by asserting that Linux, at the time he created DeCSS, did not support
the file system used on DVDs. 77
Hence, it was necessary, he said, to decrypt the DVD on a Windows computer in
order subsequently to play the decrypted files on a Linux machine. 78
Assuming that to be true, 79
however, the fact remains that Mr. Johansen created DeCSS in the full knowledge
that it could be used on computers running Windows rather than Linux. Moreover,
he was well aware that the files, once decrypted, could be copied like any other
In January 1999, Norwegian prosecutors filed charges against Mr. Johansen
stemming from the development of DeCSS.
The disposition of the Norwegian case does not appear of record.
E. The Distribution of DeCSS
In the months following its initial appearance on Mr. Johansen's web site,
DeCSS has become widely available on the Internet, where hundreds of sites now
purport to offer the software for download. 81
A few other applications said to decrypt CSS-encrypted DVDs also have appeared
on the Internet. 82
In November 1999, defendants' web site began to offer DeCSS for download.
It established also a list of links to several web sites that purportedly "mirrored"
or offered DeCSS for download. 84
The links on defendants' mirror list fall into one of three categories. By
clicking the mouse on one of these links, the user may be brought to a page on
the linked-to site on which there appears a further link to the DeCSS software. 85
If the user then clicks on the DeCSS link, download of the software begins. This
page may or may not contain content other than the DeCSS link. 86
Alternatively, the user may be brought to a page on the linked-to site that does
not itself purport to link to DeCSS, but that links, either directly or via a
series of other pages on the site, to another page on the site on which there
appears a link to the DeCSS software. 87
Finally, the user may be brought directly to the DeCSS link on the linked-to
site such that download of DeCSS begins immediately without further user
F. The Preliminary Injunction and Defendants' Response
The movie studios, through the Internet investigations division of the Motion
Picture Association of America ("MPAA"), became aware of the
availability of DeCSS on the Internet in October 1999. 89
The industry responded by sending out a number of cease and desist letters to
web site operators who posted the software, some of which removed it from their
In January 2000, the studios filed this lawsuit against defendant Eric Corley
and two others. 91
After a hearing at which defendants presented no affidavits or evidentiary
material, the Court granted plaintiffs' motion for a preliminary injunction
barring defendants from posting DeCSS. 92
At the conclusion of the hearing, plaintiffs sought also to enjoin defendants
from linking to other sites that posted DeCSS, but the Court declined to
entertain the application at that time in view of plaintiffs' failure to raise
the issue in their motion papers. 93
Following the issuance of the preliminary injunction, defendants removed
DeCSS from the 2600.com web site. 94
In what they termed an act of "electronic civil disobedience," 95
however, they continued to support links to other web sites purporting to offer
DeCSS for download, a list which had grown to nearly five hundred by July 2000. 96
Indeed, they carried a banner saying "Stop the MPAA" and, in a
reference to this lawsuit, proclaimed:
"We have to face the possibility that we could be forced into
submission. For that reason it's especially important that as many of you as
possible, all throughout the
world, take a stand and mirror these files."
Thus, defendants obviously hoped to frustrate plaintiffs' recourse to the
judicial system by making effective relief difficult or impossible.
At least some of the links currently on defendants' mirror list lead the user
to copies of DeCSS that, when downloaded and executed, successfully decrypt a
motion picture on a CSS-encrypted DVD. 98
G. Effects on Plaintiffs
The effect on plaintiffs of defendants' posting of DeCSS depends upon the
ease with which DeCSS decrypts plaintiffs' copyrighted motion pictures, the
quality of the resulting product, and the convenience with which decrypted
copies may be transferred or transmitted.
As noted, DeCSS was available for download from defendants' web site and
remains available from web sites on defendants' mirror list. 99
Downloading is simple and quick--plaintiffs' expert did it in seconds. 100
The program in fact decrypts at least some DVDs. 101
Although the process is computationally intensive, plaintiffs' expert decrypted
a store-bought copy of Sleepless in Seattle in 20 to 45 minutes. 102
The copy is stored on the hard drive of the computer. The quality of the
decrypted film is virtually identical to that of encrypted films on DVD. 103
The decrypted file can be copied like any other. 104
The decryption of a CSS-protected DVD is only the beginning of the tale, as
the decrypted file is very large--approximately 4.3 to 6 GB or more depending on
the length of the film 105
--and thus extremely cumbersome to transfer or to store on portable storage
media. One solution to this problem, however, is DivX, a compression utility
available on the Internet that is promoted as a means of compressing decrypted
motion picture files to manageable size. 106
DivX is capable of compressing decrypted files constituting a feature length
motion picture to approximately 650 MB at a compression ratio that involves
little loss of quality. 107
While the compressed sound and graphic files then must be synchronized, a
tedious process that took plaintiffs' expert between 10 and 20 hours, 108
the task is entirely feasible. Indeed, having compared a store-bought DVD with
portions of a copy compressed and synchronized with DivX (which often are
referred to as "DivX'd" motion pictures), the Court finds that the
loss of quality, at least in some cases, is imperceptible or so nearly
imperceptible as to be of no importance to ordinary consumers. 109
The fact that DeCSS-decrypted DVDs can be compressed satisfactorily to 650 MB
is very important. A writeable CD-ROM can hold 650 MB. 110 Hence, it is entirely feasible to decrypt a DVD with DeCSS, compress and
synchronize it with DivX, and then make as many copies as one wishes by burning
the resulting files onto writeable CD-ROMs, which are sold blank for about one
dollar apiece. 111 Indeed, even if one wished to use a lower compression ratio to improve quality,
a film easily could be compressed to about 1.3 GB and burned onto two CD-ROMs.
But the creation of pirated copies of copyrighted movies on writeable CD-ROMs,
although significant, is not the principal focus of plaintiffs' concern, which
is transmission of pirated copies over the Internet or other networks.
Network transmission of decrypted motion pictures raises somewhat more
difficult issues because even 650 MB is a very large file that, depending upon
may take a good deal of time to transmit. But there is tremendous variation
in transmission times. Many home computers today have modems with a rated
capacity of 56 kilobits per second. DSL lines, which increasingly are available
to home and business users, offer transfer rates of 7 megabits per second. 112
Cable modems also offer increased bandwidth. Student rooms in many universities
are equipped with network connections rated at 10 megabits per second. 113
Large institutions such as universities and major companies often have networks
with backbones rated at 100 megabits per second. 114
While effective transmission times generally are much lower than rated maximum
capacities in consequence of traffic volume and other considerations, there are
many environments in which very high transmission rates may be achieved. 115
Hence, transmission times ranging from three 116
to twenty minutes 117
to six hours 118
or more for a feature length film are readily achievable, depending upon the
users' precise circumstances. 119
At trial, defendants repeated, as if it were a mantra, the refrain that
plaintiffs, as they stipulated, 120
have no direct evidence of a specific occasion on which any person decrypted a
copyrighted motion picture with DeCSS and transmitted it over the Internet. But
that is unpersuasive. Plaintiffs' expert expended very little effort to find
someone in an IRC chat room who exchanged a compressed, decrypted copy of The
Matrix, one of plaintiffs' copyrighted motion pictures, for a copy of Sleepless
in Seattle. 121
While the simultaneous electronic exchange of the two movies took approximately
six hours, 122
the computers required little operator attention during the interim. An MPAA
investigator downloaded between five and ten DVD-sourced movies over the
Internet after December 1999. 123
At least one web site contains a list of 650 motion pictures, said to have been
decrypted and compressed with DivX, that purportedly are available for sale,
trade or free download. 124
And although the Court does not accept the list, which is hearsay, as proof of
the truth of the matters asserted therein, it does note that advertisements for
decrypted versions of copyrighted movies first appeared on the Internet in
substantial numbers in late 1999, following the posting of DeCSS. 125
The net of all this is reasonably plain. DeCSS is a free, effective and fast
means of decrypting plaintiffs' DVDs and copying them to computer hard drives.
DivX, which is available over the Internet for nothing, with the investment of
some time and effort, permits compression of the decrypted files to sizes that
readily fit on a writeable CD-ROM. Copies of such CD-ROMs can be produced very
cheaply and distributed as easily as other pirated intellectual property. While
not everyone with Internet access now will find it convenient to send or receive
DivX'd copies of pirated motion pictures over the Internet, the availability of
high speed network connections in many businesses and institutions, and their
growing availability in homes, make Internet and other network traffic in
pirated copies a growing threat.
These circumstances have two major implications for plaintiffs. First, the
availability of DeCSS on the Internet effectively has compromised plaintiffs'
system of copyright protection for DVDs, requiring them either to tolerate
increased piracy or to expend resources to develop and implement a replacement
system unless the availability of DeCSS is terminated. 126
It is analogous to the publication of a bank vault combination in a national
newspaper. Even if no one uses the combination to open the vault, its mere
publication has the effect of defeating the bank's security system, forcing the
bank to reprogram the lock. Development and implementation of a new DVD copy
protection system, however, is far more difficult and costly than reprogramming
a combination lock and may carry with it the added problem of rendering the
existing installed base of compliant DVD players obsolete.
Second, the application of DeCSS to copy and distribute motion pictures on
DVD, both on CD-ROMs and via the Internet, threatens to reduce the studios'
revenue from the sale and rental of DVDs. It threatens also to impede new,
potentially lucrative initiatives for the distribution of motion pictures in
digital form, such as video-on-demand via the Internet. 127
In consequence, plaintiffs already have been gravely injured. As the pressure
for and competition to supply more and more users with faster and faster network
connections grows, the injury will multiply.
II. The Digital Millennium Copyright Act
A. Background and Structure of the Statute
In December 1996, the World Intellectual Property Organization ("WIPO"),
held a diplomatic conference in Geneva that led to the adoption of two treaties.
Article 11 of the relevant treaty, the WIPO Copyright Treaty, provides in
relevant part that contracting states "shall provide adequate legal
protection and effective legal remedies against the circumvention of effective
technological measures that are used by authors in connection with the exercise
of their rights under this Treaty or the Berne Convention and that restrict acts,
in respect of their works, which are not authorized by the authors concerned or
permitted by law." 128
The adoption of the WIPO Copyright Treaty spurred continued Congressional
attention to the adaptation of the law of copyright to the digital age. Lengthy
hearings involving a broad range of interested parties both preceded and
succeeded the Copyright Treaty. As noted above, a critical focus of
Congressional consideration of the legislation was the conflict between those
who opposed anti-circumvention measures as inappropriate extensions of copyright
and impediments to fair use and those who supported them as essential to proper
protection of copyrighted materials in the digital age. 129
The DMCA was enacted in October 1998 as the culmination of this process. 130
[For background, see Copyright
DMCA brochure] The DMCA contains two principal anticircumvention provisions.
The first, Section
1201(a)(1), governs " [t]he act of circumventing a technological
protection measure put in place by a copyright owner to control access to a
copyrighted work," an act described by Congress as "the electronic
equivalent of breaking into a locked room in order to obtain a copy of a book."
second, Section 1201(a)(2), which is the focus of this case, "supplements
the prohibition against the act of circumvention in paragraph (a)(1) with
prohibitions on creating and making available certain technologies . . .
developed or advertised to defeat technological protections against unauthorized
access to a work." 132
As defendants are accused here only of posting and linking to other sites
posting DeCSS, and not of using it themselves to bypass plaintiffs' access
controls, it is principally the second of the anticircumvention provisions that
is at issue in this case. 133
B. Posting of DeCSS
1. Violation of Anti-Trafficking Provision
Section 1201(a)(2) of the Copyright Act, part of the DMCA, provides that:
"No person shall . . . offer to the public, provide or otherwise
traffic in any technology . . . that-- "(A) is primarily designed or
produced for the purpose of circumventing a technological measure that
effectively controls access to a work protected under [the Copyright Act];
"(B) has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a work
protected under [the Copyright Act]; or "(C) is marketed by that person
or another acting in concert with that person with that person's knowledge for
use in circumventing a technological measure that effectively controls access to
a work protected under [the Copyright Act]." 134
In this case, defendants concededly offered and provided and, absent a court
order, would continue to offer and provide DeCSS to the public by making it
available for download on the 2600.com web site. DeCSS, a computer program,
unquestionably is "technology" within the meaning of the statute. 135
" [C]ircumvent a technological measure" is defined to mean
descrambling a scrambled work, decrypting an encrypted work, or "otherwise
to avoid, bypass, remove, deactivate, or impair a technological measure, without
the authority of the copyright owner," 136
so DeCSS clearly is a means of circumventing a technological access control
In consequence, if CSS otherwise falls within paragraphs (A), (B) or (C) of
Section 1201(a)(2), and if none of the statutory exceptions applies to their
actions, defendants have violated and, unless enjoined, will continue to violate
the DMCA by posting DeCSS. a. Section 1201(a)(2)(A)
(1) CSS Effectively Controls Access to Copyrighted Works
During pretrial proceedings and at trial, defendants attacked plaintiffs'
Section 1201(a)(2)(A) claim, arguing that CSS, which is based on a 40-bit
encryption key, is a weak cipher that does not "effectively control"
access to plaintiffs' copyrighted works. They reasoned from this premise that
CSS is not protected under this branch of the statute at all. Their post-trial
memorandum appears to have abandoned this argument. In any case, however, the
contention is indefensible as a matter of law.
 First, the statute expressly provides that "a technological
measure 'effectively controls access to a work' if the measure, in the ordinary
course of its operation, requires the application of information or a process or
a treatment, with the authority of the copyright owner, to gain access to a work."
cannot gain access to a CSS-protected work on a DVD without application of the
three keys that are required by the software. One cannot lawfully gain access to
the keys except by entering into a license with the DVD CCA under authority
granted by the copyright owners or by purchasing a DVD player or drive
containing the keys pursuant to such a license. In consequence, under the
express terms of the statute, CSS "effectively controls access" to
copyrighted DVD movies. It does so, within the meaning of the statute, whether
or not it is a strong means of protection. 139
This view is confirmed by the legislative history, which deals with precisely
this point. The House Judiciary Committee section-by-section analysis of the
House bill, which in this respect was enacted into law, makes clear that a
technological measure "effectively controls access" to a copyrighted
work if its function is to control access:
"The bill does define the functions of the technological measures
that are covered--that is, what it means for a
technological measure to 'effectively control access to a work' . . . and to
'effectively protect a right of a copyright owner under this title' . . . . The
practical, common-sense approach taken by H.R. 2281 is that if, in the ordinary
course of its operation, a technology actually works in the defined ways to
control access to a work . . . then the 'effectiveness' test is met, and the
prohibitions of the statute are applicable. This test, which focuses on the
function performed by the technology, provides a sufficient basis for clear
Further, the House Commerce Committee made clear that measures based on
encryption or scrambling "effectively control" access to copyrighted
although it is well known that what may be encrypted or scrambled often may be
decrypted or unscrambled. As CSS, in the ordinary course of its operation--that
is, when DeCSS or some other decryption program is not employed--"actually
works" to prevent access to the protected work, it "effectively
controls access" within the contemplation of the statute.
Finally, the interpretation of the phrase "effectively controls access"
offered by defendants at trial--viz., that the use of the word "effectively"
means that the statute protects only successful or efficacious technological
means of controlling access--would gut the statute if it were adopted. If a
technological means of access control is circumvented, it is, in common parlance,
ineffective. Yet defendants' construction, if adopted, would limit the
application of the statute to access control measures that thwart circumvention,
but withhold protection for those measures that can be circumvented. In other
words, defendants would have the Court construe the statute to offer protection
where none is needed but to withhold protection precisely where protection is
essential. The Court declines to do so. Accordingly, the Court holds that CSS
effectively controls access to plaintiffs' copyrighted works. 142
(2) DeCSS Was Designed Primarily to Circumvent CSS
 As CSS effectively controls access to plaintiffs' copyrighted works,
the only remaining question under Section 1201(a)(2)(A) is whether DeCSS was
designed primarily to circumvent CSS. The answer is perfectly obvious. By the
admission of both Jon Johansen, the programmer who principally wrote DeCSS, and
defendant Corley, DeCSS was created solely for the purpose of decrypting
CSS--that is all it does. 143 Hence, absent satisfaction of a statutory exception, defendants clearly violated
Section 1201(a)(2)(A) by posting DeCSS to their web site.
b. Section 1201(a)(2)(B)
As the only purpose or use of DeCSS is to circumvent CSS, the foregoing is
sufficient to establish a prima facie violation of Section 1201(a)(2)(B) as
c. The Linux Argument
Perhaps the centerpiece of defendants' statutory position is the contention
that DeCSS was not created for the purpose of pirating copyrighted motion
pictures. Rather, they argue, it was written to further the development of a DVD
player that would run under the Linux operating system, as there allegedly were
no Linux compatible players on the market at the time. 144
The argument plays itself out in various ways as different elements of the DMCA
come into focus. But it perhaps is useful to address the point at its most
general level in order to place the preceding discussion in its fullest context.
As noted, Section 1201(a) of the DMCA contains two distinct prohibitions.
Section 1201(a)(1), the so-called basic provision, "aims against those who
engage in unauthorized circumvention of technological measures . . . . [It]
focuses directly on wrongful conduct, rather than on those who facilitate
wrongful conduct . . . ." 145
Section 1201(a)(2), the anti-trafficking provision at issue in this case, on the
other hand, separately bans offering or providing technology that may be used to
technological means of controlling access to copyrighted
If the means in question meets any of the three prongs of the standard set out
in Section 1201(a)(2)(A), (B), or (C), it may not be offered or disseminated.
As the earlier discussion demonstrates, the question whether the development
of a Linux DVD player motivated those who wrote DeCSS is immaterial to the
question whether the defendants now before the Court violated the
anti-trafficking provision of the DMCA. The inescapable facts are that (1) CSS
is a technological means that effectively controls access to plaintiffs'
copyrighted works, (2) the one and only function of DeCSS is to circumvent CSS,
and (3) defendants offered and provided DeCSS by posting it on their web site.
Whether defendants did so in order to infringe, or to permit or encourage others
to infringe, copyrighted works in violation of other provisions of the Copyright
Act simply does not matter for purposes of Section 1201(a)(2). The offering or
provision of the program is the prohibited conduct--and it is prohibited
irrespective of why the program was written, except to whatever extent motive
may be germane to determining whether their conduct falls within one of the
2. Statutory Exceptions
Earlier in the litigation, defendants contended that their activities came
within several exceptions contained in the DMCA and the Copyright Act and
constitute fair use under the Copyright Act. Their post-trial memorandum appears
to confine their argument to the reverse engineering exception. 147
In any case, all of their assertions are entirely without merit. a. Reverse
Defendants claim to fall under Section 1201(f) of the statute, which provides
in substance that one may circumvent, or develop and employ technological means
to circumvent, access control measures in order to achieve interoperability with
another computer program provided that doing so does not infringe another's
and, in addition, that one may make information acquired through such efforts
"available to others, if the person [in question] . . . provides such
information solely for the purpose of enabling interoperability of an
independently created computer program with other programs, and to the extent
that doing so does not constitute infringement . . . ." 149
They contend that DeCSS is necessary to achieve interoperability between
computers running the Linux operating system and DVDs and that this exception
therefore is satisfied. 150
This contention fails.
 First, Section 1201(f)(3) permits information acquired through reverse
engineering to be made available to others only by the person who acquired the
information. But these defendants did not do any reverse engineering. They
simply took DeCSS off someone else's web site and posted it on their own.
Defendants would be in no stronger position even if they had authored DeCSS.
The right to make the information available extends only to dissemination "solely
for the purpose" of achieving interoperability as defined in the statute.
It does not apply to public dissemination of means of circumvention, as the
legislative history confirms. 151
These defendants, however, did not post DeCSS "solely" to achieve
interoperability with Linux or anything else.
Finally, it is important to recognize that even the creators of DeCSS cannot
credibly 38 maintain that the "sole" purpose of DeCSS was to create a
Linux DVD player. DeCSS concededly was developed on and runs under Windows--a
far more widely used operating system. The developers of DeCSS therefore knew
that DeCSS could be used to decrypt and play DVD movies on Windows as well as
Linux machines. They knew also that the decrypted files could be copied like any
other unprotected computer file. Moreover, the Court does not credit Mr.
Johansen's testimony that he created DeCSS solely for the purpose of building a
Linux player. Mr. Johansen is a very talented young man and a member of a well
known hacker group who viewed "cracking" CSS as an end it itself and a
means of demonstrating his talent and who fully expected that the use of DeCSS
would not be confined to Linux machines. Hence, the Court finds that Mr.
Johansen and the others who actually did develop DeCSS did not do so solely for
the purpose of making a Linux DVD player if, indeed, developing a Linux-based
DVD player was among their purposes.
Accordingly, the reverse engineering exception to the DMCA has no application
b. Encryption research
Section 1201(g)(4) provides in relevant part that:
"Notwithstanding the provisions of subsection (a)(2), it is not a
violation of that subsection for a person to-- "(A) develop and employ
technological means to circumvent a technological measure for the sole purpose
of that person performing the acts of good faith encryption research described
in paragraph (2); and "(B) provide the technological means to another
person with whom he or she is working collaboratively for the purpose of
conducting the acts of good faith encryption research described in paragraph (2)
or for the purpose of having that other person verify his or her acts of good
faith encryption research described in paragraph (2)." 152
Paragraph (2) in relevant part permits circumvention of technological
measures in the course of good faith encryption research if:
"(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work; "(B) such act is necessary
to conduct such encryption research; "(C) the person made a good faith
effort to obtain authorization before the circumvention; and "(D) such act
does not constitute infringement under this title . . . ." 153
In determining whether one is engaged in good faith encryption research, the
Court is instructed to consider factors including whether the results of the
putative encryption research are disseminated in a manner designed to advance
the state of knowledge of encryption technology versus facilitation of copyright
infringement, whether the person in question is engaged in legitimate study of
or work in encryption, and whether the results of the research are communicated
in a timely fashion to the copyright owner. 154
 Neither of the defendants remaining in this case was or is involved in
good faith encryption research. 155
They posted DeCSS for all the world to see. There is no evidence that they made
any effort to provide the results of the DeCSS effort to the copyright owners.
Surely there is no suggestion that either of them made a good faith effort to
obtain authorization from the copyright owners. Accordingly, defendants are not
protected by Section 1201(g). 156
c. Security testing
Defendants contended earlier that their actions should be considered exempt
security testing under Section 1201(j) of the statute. 157
This exception, however, is limited to "assessing a computer, computer
system, or computer network, solely for the purpose of good faith testing,
investigating, or correcting [of a] security flaw or vulnerability, with the
authorization of the owner or operator of such computer system or computer
The record does not indicate that DeCSS has anything to do with testing
computers, computer systems, or computer networks. Certainly defendants sought,
and plaintiffs' granted, no authorization for defendants' activities. This
exception therefore has no bearing in this case. 159
d. Fair use
Finally, defendants rely on the doctrine of fair use. Stated in its most
general terms, the doctrine, now codified in Section 107
of the Copyright Act, 160
limits the exclusive rights of a copyright holder by permitting others to make
limited use of portions of the copyrighted work, for appropriate purposes, free
of liability for copyright infringement. For example, it is permissible for one
other than the copyright owner to reprint or quote a suitable part of a
copyrighted book or article in certain circumstances. The doctrine traditionally
has facilitated literary and artistic criticism, teaching and scholarship, and
other socially useful forms of expression. It has been viewed by courts as a
safety valve that accommodates the exclusive rights conferred by copyright with
the freedom of expression guaranteed by the First Amendment.
The use of technological means of controlling access to a copyrighted work
may affect the ability to make fair uses of the work. 161
Focusing specifically on the facts of this case, the application of CSS to
encrypt a copyrighted motion picture requires the use of a compliant DVD player
to view or listen to the movie. Perhaps more significantly, it prevents exact
copying of either the video or the audio portion of all or any part of the film.
This latter point means that certain uses that might qualify as "fair"
for purposes of copyright infringement--for example, the preparation by a film
studies professor of a single CD-ROM or tape containing two scenes from
different movies in order to illustrate a point in a lecture on cinematography,
as opposed to showing relevant parts of two different DVDs--would be difficult
or impossible absent circumvention of the CSS encryption. Defendants therefore
argue that the DMCA cannot properly be construed to make it difficult or
impossible to make any fair use of plaintiffs' copyrighted works and that the
statute therefore does not reach their activities, which are simply a means to
enable users of DeCSS to make such fair uses.
Defendants have focused on a significant point. Access control measures such
as CSS do involve some risk of preventing lawful as well as unlawful uses of
copyrighted material. Congress, however, clearly faced up to and dealt with this
question in enacting the DMCA.
 The Court begins its statutory analysis, as it must, with the language
of the statute. Section 107 of the Copyright Act provides in critical part that
certain uses of copyrighted works that otherwise would be wrongful are "not
. . . infringement[s] of copyright." 163 Defendants, however, are not here sued for copyright infringement. They are sued
for offering and providing technology designed to circumvent technological
measures that control access to copyrighted works and otherwise violating
Section 1201(a)(2) of the Act. If Congress had meant the fair use defense to
apply to such actions, it would have said so. Indeed, as the legislative history
demonstrates, the decision not to make fair use a defense to a claim under
Section 1201(a) was quite deliberate.
Congress was well aware during the consideration of the DMCA of the
traditional role of the fair use defense in accommodating the exclusive rights
of copyright owners with the legitimate interests of noninfringing users of
portions of copyrighted works. It recognized the contention, voiced by a range
of constituencies concerned with the legislation, that technological controls on
access to copyrighted works might erode fair use by preventing access even for
uses that would be deemed "fair" if only access might be gained. 164
And it struck a balance among the competing interests.
The first element of the balance was the careful limitation of Section
1201(a)(1)'s prohibition of the act of circumvention to the act itself so as not
to "apply to subsequent actions of a person once he or she has obtained
authorized access to a copy of a [copyrighted] work . . . ." 165
By doing so, it left "the traditional defenses to copyright infringement,
including fair use, . . . fully applicable" provided "the access is
Second, Congress delayed the effective date of Section 1201(a)(1)'s
prohibition of the act of circumvention for two years pending further
investigation about how best to reconcile Section 1201(a)(1) with fair use
concerns. Following that investigation, which is being carried out in the form
of a rule-making by the Register of Copyright, the prohibition will not apply to
users of particular classes of copyrighted works who demonstrate that their
ability to make noninfringing uses of those classes of works would be affected
adversely by Section 1201(a)(1). 167
Third, it created a series of exceptions to aspects of Section 1201(a) for
certain uses that Congress thought "fair," including reverse
engineering, security testing, good faith encryption research, and certain uses
by nonprofit libraries, archives and educational institutions. 168
Defendants claim also that the possibility that DeCSS might be used for the
purpose of gaining access to copyrighted works in order to make fair use of
those works saves them under Sony Corp. v. Universal City Studios, Inc. 169
But they are mistaken. Sony does not apply to the activities with which
defendants here are charged. Even if it did, it would not govern here. Sony
involved a construction of the Copyright Act that has been overruled by the
later enactment of the DMCA to the extent of any inconsistency between Sony and
the new statute. Sony was a suit for contributory infringement brought against
manufacturers of video cassette recorders on the theory that the manufacturers
were contributing to infringing home taping of copyrighted television broadcasts.
The Supreme Court held that the manufacturers were not liable in view of the
substantial numbers of copyright holders who either had authorized or did not
object to such taping by viewers. 170 But Sony has no application here.
When Sony was decided, the only question was whether the manufacturers could
be held liable for infringement by those who purchased equipment from them in
circumstances in which there were many noninfringing uses for their equipment.
But that is not the question now before this Court. The question here is whether
the possibility of noninfringing fair use by someone who gains access to a
protected copyrighted work through a circumvention technology distributed by the
defendants saves the defendants from liability under Section 1201. But nothing
in Section 1201 so suggests. By prohibiting the provision of circumvention
technology, the DMCA fundamentally altered the landscape. A given device or
piece of technology might have "a substantial noninfringing use, and hence
be immune from attack under Sony's construction of the Copyright Act--but
nonetheless still be subject to suppression under Section 1201." 171 Indeed, Congress explicitly noted that Section 1201 does not incorporate Sony.
The policy concerns raised by defendants were considered by Congress. Having
considered them, Congress crafted a statute that, so far as the applicability of
the fair use defense to Section 1201(a) claims is concerned, is crystal clear.
In such circumstances, courts may not undo what Congress so plainly has done by
"construing" the words of a statute to accomplish a result that
Congress rejected. The fact that Congress elected to leave technologically
unsophisticated persons who wish to make fair use of encrypted copyrighted works
without the technical means of doing so is a matter for Congress unless
Congress' decision contravenes the Constitution, a matter to which the Court
turns below. Defendants' statutory fair use argument therefore is entirely
C. Linking to Sites Offering DeCSS
Plaintiffs seek also to enjoin defendants from "linking" their
2600.com web site to other sites that make DeCSS available to users. Their
request obviously stems in no small part from what defendants themselves have
termed their act of "electronic civil disobedience"--their attempt to
defeat the purpose of the preliminary injunction by (a) offering the practical
equivalent of making DeCSS available on their own web site by electronically
linking users to other sites still offering DeCSS, and (b) encouraging other
sites that had not been enjoined to offer the program. The dispositive question
is whether linking to another web site containing DeCSS constitutes "offer
[ing DeCSS] to the public" or "provid[ing] or otherwise traffic [king]"
in it within the meaning of the DMCA. 173
Answering this question requires careful consideration of the nature and types
Most web pages are written in computer languages, chiefly HTML, which allow
the programmer to prescribe the appearance of the web page on the computer
screen and, in addition, to instruct the computer to perform an operation if the
cursor is placed over a particular point on the screen and the mouse
then clicked. 174
Programming a particular point on a screen to transfer the user to another web
page when the point, referred to as a hyperlink, is clicked is called linking. 175
Web pages can be designed to link to other web pages on the same site or to web
pages maintained by different sites. 176
As noted earlier, the links that defendants established on their web site are
of several types. Some transfer the user to a web page on an outside site that
contains a good deal of information of various types, does not itself contain a
link to DeCSS, but that links, either directly or via a series of other pages,
to another page on the same site that posts the software. It then is up to the
user to follow the link or series of links on the linked-to web site in order to
arrive at the page with the DeCSS link and commence the download of the
software. Others take the user to a page on an outside web site on which there
appears a direct link to the DeCSS software and which may or may not contain
text or links other than the DeCSS link. The user has only to click on the DeCSS
link to commence the download. Still others may directly transfer the user to a
file on the linked-to web site such that the download of DeCSS to the user's
computer automatically commences without further user intervention.
The statute makes it unlawful to offer, provide or otherwise traffic in
described technology. 177
To "traffic" in something is to engage in dealings in it, 178
conduct that necessarily involves awareness of the nature of the subject of the
trafficking. To "provide" something, in the sense used in the statute,
is to make it available or furnish it. 179
To "offer" is to present or hold it out for consideration. 180
The phrase "or otherwise traffic in" modifies and gives meaning to the
words "offer" and "provide." 181
In consequence, the anti-trafficking provision of the DMCA is implicated where
one presents, holds out or makes a circumvention technology or device available,
knowing its nature, for the purpose of allowing others to acquire it.
 To the extent that defendants have linked to sites that automatically
commence the process of downloading DeCSS upon a user being transferred by
defendants' hyperlinks, there can be no serious question. Defendants are engaged
in the functional equivalent of transferring the DeCSS code to the user
Substantially the same is true of defendants' hyperlinks to web pages that
display nothing more than the DeCSS code or present the user only with the
choice of commencing a download of DeCSS and no other content. The only
distinction is that the entity extending to the user the option of downloading
the program is the transferee site rather than defendants, a distinction without
Potentially more troublesome might be links to pages that offer a good deal
of content other than DeCSS but that offer a hyperlink for downloading, or
transferring to a page for downloading, DeCSS. If one assumed, for the purposes
of argument, that the Los Angeles Times web site somewhere contained the DeCSS
code, it would be wrong to say that anyone who linked to the Los Angeles Times
web site, regardless of purpose or the manner in which the link was described,
thereby offered, provided or otherwise trafficked in DeCSS merely because DeCSS
happened to be available on a site to which one linked. 182
But that is not this case. Defendants urged others to post DeCSS in an effort to
disseminate DeCSS and to inform defendants that they were doing so. Defendants
then linked their site to those "mirror" sites, after first checking
to ensure that the mirror sites in fact were posting DeCSS or something that
looked like it, and proclaimed on their own site that DeCSS could be had by
clicking on the hyperlinks on defendants' site. By doing so, they offered,
provided or otherwise trafficked in DeCSS, and they continue to do so to this
III. The First Amendment
Defendants argue that the DMCA, at least as applied to prevent the public
dissemination of DeCSS, violates the First
Amendment to the Constitution. They claim that it does so in two ways. First,
they argue that computer code is protected speech and that the DMCA's
prohibition of dissemination of DeCSS therefore violates defendants' First
Amendment rights. Second, they contend that the DMCA is unconstitutionally
overbroad, chiefly because its prohibition of the dissemination of decryption
technology prevents third parties from making fair use of plaintiffs' encrypted
works, and vague. They argue also that a prohibition on their linking to sites
that make DeCSS available is unconstitutional for much the same reasons.
A. Computer Code and the First Amendment
The premise of defendants' first position is that computer code, the form in
which DeCSS exists, is speech protected by the First Amendment. Examination of
that premise is the logical starting point for analysis. And it is important in
examining that premise first to define terms.
Defendants' assertion that computer code is "protected" by the
First Amendment is quite understandable. Courts often have spoken of certain
categories of expression as "not within the area of constitutionally
protected speech," 183
so defendants naturally wish to avoid exclusion by an unfavorable categorization
of computer code. But such judicial statements in fact are not literally true.
All modes of expression are covered by the First Amendment in the sense that the
constitutionality of their "regulation must be determined by reference to
First Amendment doctrine and analysis." 184
Regulation of different categories of expression, however, is subject to varying
levels of judicial scrutiny. Thus, to say that a particular form of expression
is "protected" by the First Amendment means that the constitutionality
of any regulation of it must be measured by reference to the First Amendment. In
some circumstances, however, the phrase connotes also that the standard for
measurement is the most exacting level available.
It cannot seriously be argued that any form of computer code may be regulated
without reference to First Amendment doctrine. The path from idea to human
language to source code to object code is a continuum. As one moves from one to
the other, the levels of precision and, arguably, abstraction increase, as does
the level of training necessary to discern the idea from the expression. Not
everyone can understand each of these forms. Only English speakers will
understand English formulations. Principally those familiar with the particular
programming language will understand the source code expression. And only a
relatively small number of skilled programmers and computer scientists will
understand the machine readable object code. But each form expresses the same
idea, albeit in different ways. 185
There perhaps was a time when the First Amendment was viewed only as a
limitation on the ability of government to censor speech in advance. 186
But we have moved far beyond that. All modes by which ideas may be expressed or,
perhaps, emotions evoked--including speech, books, movies, art, and music--are
within the area of First Amendment concern. 187
As computer code--whether source or object--is a means of expressing ideas, the
First Amendment must be considered before its dissemination may be prohibited or
regulated. In that sense, computer code is covered or, as sometimes is said,
"protected" by the First Amendment. 188
that conclusion still leaves for determination the level of scrutiny to be
applied in determining the constitutionality of regulation of computer code.
B. The Constitutionality of the DMCA's Anti-Trafficking Provision
1. Defendants' Alleged Right to Disseminate DeCSS
Defendants first attack Section 1201(a)(2), the anti-trafficking provision,
as applied to them on the theory that DeCSS is constitutionally protected
expression and that the statute improperly prevents them from communicating it.
Their attack presupposes that a characterization of code as constitutionally
protected subjects any regulation of code to the highest level of First
Amendment scrutiny. As we have seen, however, this does not necessarily follow.
Just as computer code cannot be excluded from the area of First Amendment
concern because it is abstract and, in many cases, arcane, the long history of
First Amendment jurisprudence makes equally clear that the fact that words,
symbols and even actions convey ideas and evoke emotions does not inevitably
place them beyond the power of government. The Supreme Court has evolved an
analytical framework by which the permissibility of particular restrictions on
the expression of ideas must determined.
Broadly speaking, restrictions on expression fall into two categories. Some
are restrictions on the voicing of particular ideas, which typically are
referred to as content based restrictions. Others have nothing to do with the
content of the expression--i.e., they are content neutral--but they have the
incidental effect of limiting expression.
In general, "government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content . . . ." 189
"[S]ubject only to narrow and well-understood exceptions, [the First
Amendment] does not countenance governmental control over the content of
messages expressed by private individuals." 190
In consequence, content based restrictions on speech are permissible only if
they serve compelling state interests by the least restrictive means available. 191
Content neutral restrictions, in contrast, are measured against a less
exacting standard. Because restrictions of this type are not motivated by a
desire to limit the message, they will be upheld if they serve a substantial
governmental interest and restrict First Amendment freedoms no more than
Restrictions on the nonspeech elements of expressive conduct fall into the
conduct-neutral category. The Supreme Court long has distinguished for First
Amendment purposes between pure speech, which ordinarily receives the highest
level of protection, and expressive conduct. 193
Even if conduct contains an expressive element, its nonspeech aspect need not be
" [W]hen 'speech' and 'nonspeech' elements are combined in the same course
of conduct, a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment freedoms."
critical point is that nonspeech elements may create hazards for society above
and beyond the speech elements. They are subject to regulation in appropriate
circumstances because the government has an interest in dealing with the
potential hazards of the nonspeech elements despite the fact that they are
joined with expressive elements.
Thus, the starting point for analysis is whether the DMCA, as applied to
restrict dissemination of DeCSS and other computer code used to circumvent
access control measures, is a content based restriction on speech or a content
neutral regulation. Put another way, the question is the level of review that
governs the DMCA's anti-trafficking provision as applied to DeCSS--the strict
scrutiny standard applicable to content based regulations or the intermediate
level applicable to content neutral regulations, including regulations of the
nonspeech elements of expressive conduct.
Given the fact that DeCSS code is expressive, defendants would have the Court
leap immediately to the conclusion that Section 1201(a)(2)'s prohibition on
providing DeCSS necessarily is content based regulation of speech because it
suppresses dissemination of a particular kind of expression. 196
But this would be a unidimensional approach to a more textured reality and
entirely too facile.
 The "principal inquiry in determining content neutrality . . . is
whether the government has adopted a regulation of speech because of [agreement
or] disagreement with the message it conveys." 197
The computer code at issue in this case, however, does more than express the
programmers' concepts. It does more, in other words, than convey a message.
DeCSS, like any other computer program, is a series of instructions that causes
a computer to perform a particular sequence of tasks which, in the aggregate,
decrypt CSS-protected files. Thus, it has a distinctly functional, non-speech
aspect in addition to reflecting the thoughts of the programmers. It enables
anyone who receives it and who has a modicum of computer skills to circumvent
plaintiffs' access control system.
The reason that Congress enacted the anti-trafficking provision of the DMCA
had nothing to do with suppressing particular ideas of computer programmers and
everything to do with functionality--with preventing people from circumventing
technological access control measures--just as laws prohibiting the possession
of burglar tools have nothing to do with preventing people from expressing
themselves by accumulating what to them may be attractive assortments of
implements and everything to do with preventing burglaries. Rather, it is
focused squarely upon the effect of the distribution of the functional
capability that the code provides. Any impact on the dissemination of
programmers' ideas is purely incidental to the overriding concerns of promoting
the distribution of copyrighted works in digital form while at the same time
protecting those works from piracy and other violations of the exclusive rights
of copyright holders. 198
These considerations suggest that the DMCA as applied here is content
neutral, a view that draws support also from City of Renton v. Playtime Theatres,
The Supreme Court there upheld against a First Amendment challenge a zoning
ordinance that prohibited adult movie theaters within 1,000 feet of a
residential, church or park zone or within one mile of a school. Recognizing
that the ordinance did "not appear to fit neatly into either the 'content
based- or the 'content-neutral' category," it found dispositive the fact
that the ordinance was justified without reference to the content of the
regulated speech in that the concern of the municipality had been with the
secondary effects of the presence of adult theaters, not with the particular
content of the speech that takes place in them. 200
As Congress' concerns in enacting the anti-trafficking provision of the DMCA
were to suppress copyright piracy and infringement and to promote the
availability of copyrighted works in digital form, and not to regulate the
expression of ideas that might be inherent in particular anti-circumvention
devices or technology, this provision of the statute properly is viewed as
content neutral. 201
Congress is not powerless to regulate content neutral regulations that
incidentally affect expression, including the dissemination of the functional
capabilities of computer code. A sufficiently important governmental interest in
seeing to it that computers are not instructed to perform particular functions
may justify incidental restrictions on the dissemination of the expressive
elements of a program. Such a regulation will be upheld if:
"it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest." 202
Moreover, " [t]o satisfy this standard, a regulation need not be the
least speech-restrictive means of advancing the Government's interests." 203
"Rather, the requirement of narrow tailoring is satisfied 'so long as the .
. . regulation promotes a substantial government interest that would be achieved
less effectively absent the regulation.' " 204
The anti-trafficking provision of the DMCA furthers an important governmental
interest--the protection of copyrighted works stored on digital media from the
vastly expanded risk of piracy in this electronic age. The substantiality of
that interest is evident both from the fact that the Constitution specifically
empowers Congress to provide for copyright protection 205
and from the significance to our economy of trade in copyrighted materials. 206
Indeed, the Supreme Court has made clear that copyright protection itself is
"the engine of free expression." 207
That substantial interest, moreover, is unrelated to the suppression of
particular views expressed copyrighted works. Nor is the incidental restraint on
protected expression--the prohibition of trafficking in means that would
circumvent controls limiting access to unprotected materials or to copyrighted
materials for noninfringing purposes--broader than is necessary to accomplish
Congress' goals of preventing infringement and promoting the availability of
content in digital form. 208
This analysis finds substantial support in the principal case relied upon by
defendants, Junger v. Daley. 209
The plaintiff in that case challenged on First Amendment grounds an Export
Administration regulation that barred the export of computer encryption
software, arguing that the software was expressive and that the regulation
therefore was unconstitutional. The Sixth Circuit acknowledged the expressive
nature of computer code, holding that it therefore was within the scope of the
First Amendment. But it recognized also that computer code is functional as well
and said that " [t]he functional capabilities of source code, particularly
those of encryption source code, should be considered when analyzing the
governmental interest in regulating the exchange of this form of speech." 210
Indeed, it went on to indicate that the pertinent standard of review was that
established in United States v. O'Brien, 211
the seminal speech-versus-conduct decision. Thus, rather than holding the
challenged regulation unconstitutional on the theory that the expressive aspect
of source code immunized it from regulation, the court remanded the case to the
district court to determine whether the O'Brien standard was met in view of the
functional aspect of code. 212
Notwithstanding its adoption by the Sixth Circuit, the focus on functionality
in order to determine the level of scrutiny is not an inevitable consequence of
the speech-conduct distinction. Conduct has immediate effects on the environment.
Computer code, on the other hand, no matter how functional, causes a computer to
perform the intended operations only if someone uses the code to do so. Hence,
one commentator, in a thoughtful article, has maintained that functionality is
really "a proxy for effects or harm" and that its adoption as a
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. 213
The characterization of functionality as a proxy for the consequences of use
is accurate. But the assumption that the chain of causation is too attenuated to
justify the use of functionality to determine the level of scrutiny, at least in
this context, is not.
Society increasingly depends upon technological means of controlling access
to digital files and systems, whether they are military computers, bank records,
academic records, copyrighted works or something else entirely. There are far
too many who, given any opportunity, will bypass those security measures, some
for the sheer joy of doing it, some for innocuous reasons, and others for more
malevolent purposes. Given the virtually instantaneous and worldwide
dissemination widely available via the Internet, the only rational assumption is
that once a computer program capable of bypassing such an access control system
is disseminated, it will be used. And that is not all.
There was a time when copyright infringement could be dealt with quite
adequately by focusing on the infringing act. If someone wished to make and sell
high quality but unauthorized copies of a copyrighted book, for example, the
infringer needed a printing press. The copyright holder, once aware of the
appearance of infringing copies, usually was able to trace the copies up the
chain of distribution, find and prosecute the infringer, and shut off the
infringement at the source.
In principle, the digital world is very different. Once a decryption program
like DeCSS is written, it quickly can be sent all over the world. Every
recipient is capable not only of decrypting and perfectly copying plaintiffs'
copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus
enabling every recipient to do the same. They likewise are capable of
transmitting perfect copies of the decrypted DVD. The process potentially is
exponential rather than linear. Indeed, the difference is illustrated by
comparison of two epidemiological models describing the spread of different
kinds of disease. 214
In a common source epidemic, as where members of a population contract a
non-contagious disease from a poisoned well, the disease spreads only by
exposure to the common source. If one eliminates the source, or closes the
contaminated well, the epidemic is stopped. In a propagated outbreak epidemic,
on the other hand, the disease spreads from person to person. Hence, finding the
initial source of infection accomplishes little, as the disease continues to
spread even if the initial source is eliminated. 215
For obvious reasons, then, a propagated outbreak epidemic, all other things
being equal, can be far more difficult to control.
This disease metaphor is helpful here. The book infringement hypothetical is
analogous to a common source outbreak epidemic. Shut down the printing press (the
poisoned well) and one ends the infringement (the disease outbreak). The spread
of means of circumventing access to copyrighted works in digital form, however,
is analogous to a propagated outbreak epidemic. Finding the original source of
infection (e.g., the author of DeCSS or the first person to misuse it)
accomplishes nothing, as the disease (infringement made possible by DeCSS and
the resulting availability of decrypted DVDs) may continue to spread from one
person who gains access to the circumvention program or decrypted DVD to another.
And each is "infected," i.e., each is as capable of making perfect
copies of the digital file containing the copyrighted work as the author of the
program or the first person to use it for improper purposes. The disease
metaphor breaks down principally at the final point. Individuals infected with a
real disease become sick, usually are driven by obvious self-interest to seek
medical attention, and are cured of the disease if medical science is capable of
doing so. Individuals infected with the "disease" of capability of
circumventing measures controlling access to copyrighted works in digital form,
however, do not suffer from having that ability. They cannot be relied upon to
identify themselves to those
seeking to control the "disease." And their self-interest will
motivate some to misuse the capability, a misuse that, in practical terms, often
will be untraceable. 216
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. 217
Here, dissemination itself carries very substantial risk of imminent harm
because the mechanism is so unusual by which dissemination of means of
circumventing access controls to copyrighted works threatens to produce
virtually unstoppable infringement of copyright. In consequence, the causal link
between the dissemination of circumvention computer programs and their improper
use is more than sufficiently close to warrant selection of a level of
constitutional scrutiny based on the programs' functionality.
Accordingly, this Court holds that the anti-trafficking provision of the DMCA
as applied to the posting of computer code that circumvents measures that
control access to copyrighted works in digital form is a valid exercise of
Congress' authority. It is a content neutral regulation in furtherance of
important governmental interests that does not unduly restrict expressive
activities. In any case, its particular functional characteristics are such that
the Court would apply the same level of scrutiny even if it were viewed as
content based. 218
Yet it is important to emphasize that this is a very narrow holding. The
restriction the Court here upholds, notwithstanding that computer code is within
the area of First Amendment concern, is limited (1) to programs that circumvent
access controls to copyrighted works in digital form in circumstances in which
(2) there is no other practical means of preventing infringement through use of
the programs, and (3) the regulation is motivated by a desire to prevent
performance of the function for which the programs exist rather than any message
they might convey. One readily might imagine other circumstances in which a
governmental attempt to regulate the dissemination of computer code would not
similarly be justified. 219
2. Prior Restraint
Defendants argue also that injunctive relief against dissemination of DeCSS
is barred by the prior restraint doctrine. The Court disagrees.
Few phrases are as firmly rooted in our constitutional jurisprudence as the
maxim that "[a]ny system of prior restraints of expression comes to [a]
Court bearing a heavy presumption against its constitutional
Yet there is a significant gap between the rhetoric and the reality. Courts
often have upheld restrictions on expression that many would describe as prior
sometimes by characterizing the expression as unprotected 222
and on other occasions finding the restraint justified despite its presumed
Moreover, the prior restraint doctrine, which has expanded far beyond the
Blackstonian model 224
that doubtless informed the understanding of the Framers of the First Amendment,
been criticized as filled with "doctrinal ambiguities and inconsistencies
result [ing] from the absence of any detailed judicial analysis of [its] true
and, in one case, even as "fundamentally unintelligible." 227
Nevertheless, the doctrine has a well established core: administrative
preclearance requirements for and at least preliminary injunctions against
speech as conventionally understood are presumptively unconstitutional. Yet that
proposition does not dispose of this case. 228
The classic prior restraint cases were dramatically different from this one.
Near v. Minnesota 229
involved a state procedure for abating scandalous and defamatory newspapers as
public nuisances. New York Times Co. v. United States 230
dealt with an attempt to enjoin a newspaper from publishing an internal
government history of the Vietnam War. Nebraska Press Association v. Stuart 231
concerned a court order barring the reporting of certain details about a
forthcoming murder case. In each case, therefore, the government sought to
suppress speech at the very heart of First Amendment concern--expression about
public issues of the sort that is indispensable to self government. And while
the prior restraint doctrine has been applied well beyond the sphere of
political expression, we deal here with something new altogether--computer code,
fundamentally utilitarian construct, albeit one that embodies an expressive
element. Hence, it would be a mistake simply to permit its expressive element to
drive a characterization of the code as speech no different from the Pentagon
Papers, the publication of a newspaper, or the exhibition of a motion picture
and then to apply prior restraint rhetoric without a more nuanced consideration
of the competing concerns.
 In this case, the considerations supporting an injunction are very
substantial indeed. Copyright and, more broadly, intellectual property piracy
are endemic, as Congress repeatedly has found. 232
The interest served by prohibiting means that facilitate such piracy--the
protection of the monopoly granted to copyright owners by the Copyright Act--is
of constitutional dimension. There is little room for doubting that broad
dissemination of DeCSS threatens ultimately to injure or destroy plaintiffs'
ability to distribute their copyrighted products on DVDs and, for that matter,
undermine their ability to sell their products to the home video market in other
forms. The potential damages probably are incalculable, and these defendants
surely would be in no position to compensate plaintiffs for them if plaintiffs
were remitted only to post hoc damage suits.
On the other side of the coin, the First Amendment interests served by the
dissemination of DeCSS on the merits are minimal. The presence of some
expressive content in the code should not obscure the fact of its predominant
functional character--it is first and foremost a means of causing a machine with
which it is used to perform particular tasks. Hence, those of the traditional
rationales for the prior restraint doctrine that relate to inhibiting the
transmission and receipt of ideas are of attenuated relevance here. Indeed, even
academic commentators who take the extreme position that most injunctions in
intellectual property cases are unconstitutional prior restraints concede that
there is no First Amendment obstacle to injunctions barring distribution of
copyrighted computer object code or restraining the construction of a new
building based on copyrighted architectural drawings because the functional
aspects of these types of information are "sufficiently
To be sure, there is much to be said in most circumstances for the usual
procedural rationale for the prior restraint doctrine: prior restraints carry
with them the risk of erroneously suppressing expression that could not
constitutionally be punished after publication. 234
In this context, however, that concern is not persuasive, both because the
enjoined expressive element is minimal and because a full trial on the merits
has been held. 235
Accordingly, the Court holds that the prior restraint doctrine does not require
denial of an injunction in this case.
Defendants' second focus is the contention that Section 1201(a)(2) is
unconstitutional because it prevents others from making fair use of copyrighted
works by depriving them of the means of circumventing plaintiffs' access control
In substance, they contend that the anti-trafficking provision
leaves those who lack sufficient technical expertise to circumvent CSS
themselves without the means of acquiring circumvention technology that they
need to make fair use of the content of plaintiffs' copyrighted DVDs. 237
As a general proposition, "a person to whom a statute constitutionally
may be applied may not challenge that statute on the ground that it conceivably
may be applied unconstitutionally to others in situations not before the
When statutes regulate speech, however, "the transcendent value to all
society of constitutionally protected expression is deemed to justify 'attacks
on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with
the requisite narrow specificity.' " 239
This is so because the absent third parties may not exercise their rights for
fear of triggering "sanctions provided by a statute susceptible of
application to protected expression." 240
But the overbreadth doctrine " 'is 'strong medicine' . . . . employed . . .
with hesitation, and then 'only as a last resort' ' " because it conflicts
with "the personal nature of constitutional rights and the prudential
limitations on constitutional adjudication," including the importance of
focusing carefully on the facts in deciding constitutional questions. 241
Moreover, the limited function of the overbreadth doctrine " 'attenuates as
the otherwise unprotected behavior that it forbids the State to sanction moves
from 'pure speech' toward conduct and that conduct--even if expressive--falls
within the scope of otherwise valid criminal laws . . . .' " 242
As defendants concede, "where conduct and not merely speech is involved, .
. . the overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep." 243
Factors arguing against use of the overbreadth doctrine are present here. To
begin with, we do not here have a complete view of whether the interests of the
absent third parties upon whom defendants rely really are substantial and, in
consequence, whether the DMCA as applied here would materially affect their
ability to make fair use of plaintiffs' copyrighted works.
The copyrighted works at issue, of course, are motion pictures. People use
copies of them in DVD and other formats for various purposes, and we confine our
consideration to the lawful purposes, which by definition are noninfringing or
fair uses. The principal noninfringing use is to play the DVD for the purpose of
watching the movie--viewing the images and hearing the sounds that are
synchronized with them. Fair uses are much more varied. A movie reviewer might
wish to quote a portion of the verbal script in an article or broadcast review.
A television station might want to broadcast part of a particular scene to
illustrate a review, a news story about a performer, or a story about particular
trends in motion pictures. A musicologist perhaps would wish to play a portion
of a musical sound track. A film scholar might desire to create and exhibit to
students small segments of several different films to make some comparative
point about the cinematography or some other characteristic. Numerous other
examples doubtless could be imagined. But each necessarily involves one or more
of three types of use: (1) quotation of the words of the script, (2) listening
to the recorded sound track, including both verbal and non-verbal elements, and
(3) viewing of the graphic images.
 All three of these types of use now are affected by the
anti-trafficking provision of the DMCA, but probably only to a trivial degree.
To begin with, all or substantially all motion pictures available on DVD are
available also on videotape. 244
In consequence, anyone wishing to make lawful use of a particular movie may buy
or rent a
videotape, play it, and even copy all or part of it with readily available
equipment. But even if movies were available only on DVD, as someday may be the
case, the impact on lawful use would be limited. Compliant DVD players permit
one to view or listen to a DVD movie without circumventing CSS in any prohibited
sense. The technology permitting manufacture of compliant DVD players is
available to anyone on a royalty-free basis and at modest cost, so CSS raises no
technological barrier to their manufacture. Hence, those wishing to make lawful
use of copyrighted movies by viewing or listening to them are not hindered in
doing so in any material way by the anti-trafficking provision of the DMCA. 245
Nor does the DMCA materially affect quotation of language from CSS-protected
movies. Anyone with access to a compliant DVD player may play the movie and
write down or otherwise record the sound for the purpose of quoting it in
The DMCA does have a notable potential impact on uses that copy portions of a
DVD movie because compliant DVD players are designed so as to prevent copying.
In consequence, even though the fair use doctrine permits limited copying of
copyrighted works in appropriate circumstances, the CSS encryption of DVD
movies, coupled with the characteristics of licensed DVD players, limits such
uses absent circumvention of CSS. 246
Moreover, the anti-trafficking provision of the DMCA may prevent technologically
unsophisticated persons who wish to copy portions of DVD movies for fair use
from obtaining the means of doing so. It is the interests of these individuals
upon which defendants rely most heavily in contending that the DMCA violates the
First Amendment because it deprives such persons of an asserted constitutional
right to make fair use of copyrighted materials. 247
As the foregoing suggests, the interests of persons wishing to circumvent CSS
in order to make lawful use of the copyrighted movies it protects are remarkably
varied. Some presumably are technologically sophisticated and therefore capable
of circumventing CSS without access to defendants' or other purveyors'
decryption programs; many presumably are not. Many of the possible fair uses may
be made without circumventing CSS while others, i.e., those requiring copying,
may not. Hence, the question whether Section 1201(a)(2) as applied here
substantially affects rights, much less constitutionally protected rights, of
members of the "fair use community" cannot be decided in bloc, without
consideration of the circumstances of each member or similarly situated groups
of members. Thus, the prudential concern with ensuring that constitutional
questions be decided only when the facts before the Court so require counsels
against permitting defendants to mount an overbreadth challenge here.248
Second, there is no reason to suppose here that prospective fair users will
be deterred from asserting their alleged rights by fear of sanctions imposed by
the DMCA or the Copyright Act.
Third, we do not deal here with "pure speech." Rather, the issue
concerns dissemination of technology that is principally functional
in nature. The same consideration that warrants restraint in applying the
overbreadth doctrine to statutes regulating expressive conduct applies here. For
reasons previously expressed, government's interest in regulating the functional
capabilities of computer code is no less weighty than its interest in regulating
the nonspeech aspects of expressive conduct.
Finally, there has been no persuasive evidence that the interests of persons
who wish access to the CSS algorithm in order to study its encryption
methodology or to evaluate theories regarding decryption raise serious problems.
The statute contains an exception for good faith encryption research.249
Accordingly, defendants will not be heard to mount an overbreadth challenge
to the DMCA in this context.
Defendants argue also that the DMCA is unconstitutionally vague because the
terms it employs are not understandable to persons of ordinary intelligence and
because they are subject to discriminatory enforcement.250
As the Supreme Court has made clear, one who "engages in some conduct
that is clearly proscribed [by the challenged statute] cannot complain of the
vagueness of the law as applied to the conduct of others."251 There can be
no serious doubt that posting a computer program the sole purpose of which is to
defeat an encryption system controlling access to plaintiff's copyrighted movies
constituted an "offer to the public" of "technology [or a]
product" that was "primarily designed for the purpose of
circumventing" plaintiffs' access control system.252 Defendants thus
engaged in conduct clearly proscribed by the DMCA and will not be heard to
complain of any vagueness as applied to others.
As indicated above, the DMCA reaches links deliberately created by a web site
operator for the purpose of disseminating technology that enables the user to
circumvent access controls on copyrighted works. The question is whether it may
do so consistent with the First Amendment.
Links bear a relationship to the information superhighway comparable to the
relationship that roadway signs bear to roads but they are more functional. Like
roadway signs, they point out the direction. Unlike roadway signs, they take one
almost instantaneously to the desired destination with the mere click of an
electronic mouse. Thus, like computer code in general, they have both expressive
and functional elements. Also like computer code, they are within the area of
First Amendment concern. Hence, the constitutionality of the DMCA as applied to
defendants' linking is determined by the same O'Brien standard that governs
trafficking in the circumvention technology generally.
There is little question that the application of the DMCA to the linking at
issue in this case would serve, at least to some extent, the same substantial
governmental interest as its application to defendants' posting of the DeCSS
code. Defendants' posting and their linking amount to very much the same thing.
Similarly, the regulation of the linking at issue here is "unrelated to the
suppression of free expression" for the same reason as the regulation of
the posting. The third prong of the O'Brien test as subsequently
interpreted--whether the "regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation"253
--is a somewhat closer call.
Defendants and, by logical extension, others may be enjoined from posting
DeCSS. Plaintiffs may seek legal redress against anyone who persists in posting
notwithstanding this decision. Hence, barring defendants from linking to sites
against which plaintiffs readily may take legal action would advance the
statutory purpose of preventing dissemination of circumvention technology, but
it would do so less effectively than would actions by plaintiffs directly
against the sites that post. For precisely this reason, however, the real
significance of an anti-linking injunction would not be with U.S. web sites
subject to the DMCA, but with foreign sites
that arguably are not subject to it and not subject to suit here. An
anti-linking injunction to that extent would have a significant impact and thus
materially advance a substantial governmental purpose. In consequence, the Court
concludes that an injunction against linking to other sites posting DeCSS
satisfies the O'Brien standard. There remains, however, one further important
Links are "what unify the [World Wide] Web into a single body of
knowledge, and what makes the Web unique."254 They "are the mainstay
of the Internet and indispensable to its convenient access to the vast world of
information."255 They often are used in ways that do a great deal to
promote the free exchange of ideas and information that is a central value of
our nation. Anything that would impose strict liability on a web site operator
for the entire contents of any web site to which the operator linked therefore
would raise grave constitutional concerns, as web site operators would be
inhibited from linking for fear of exposure to liability.256 And it is equally
clear that exposing those who use links to liability under the DMCA might chill
their use, as some web site operators confronted with claims that they have
posted circumvention technology falling within the statute may be more inclined
to remove the allegedly offending link rather than test the issue in court.
Moreover, web sites often contain a great variety of things, and a ban on
linking to a site that contains DeCSS amidst other content threatens to restrict
communication of this information to an excessive degree.
The possible chilling effect of a rule permitting liability for or
injunctions against Internet hyperlinks is a genuine concern. But it is not
unique to the issue of linking. The constitutional law of defamation provides a
highly relevant analogy. The threat of defamation suits creates the same risk of
self-censorship, the same chilling effect, for the traditional press as a
prohibition of linking to sites containing circumvention technology poses for
web site operators. Just as the potential chilling effect of defamation suits
has not utterly immunized the press from all actions for defamation, however,
the potential chilling effect of DMCA liability cannot utterly immunize web site
operators from all actions for disseminating circumvention technology. And the
solution to the problem is the same: the adoption of a standard of culpability
sufficiently high to immunize the activity, whether it is publishing a newspaper
or linking, except in cases in which the conduct in question has little or no
redeeming constitutional value.
In the defamation area, this has been accomplished by a two-tiered
constitutional standard. There may be no liability under the First Amendment for
defamation of a public official or a public figure unless the plaintiff proves,
by clear and convincing evidence, that the defendant published the offending
statement with knowledge of its falsity or with serious doubt as to its
truth.257 Liability in private figure cases, on the other hand, may not be
imposed absent proof at least of negligence under Gertz v. Robert Welch, Inc.258
A similar approach would minimize any chilling effect here.
The other concern--that a liability based on a link to another site simply
because the other site happened to contain DeCSS or some other circumvention
technology in the midst of other perfectly appropriate content could be
overkill--also is readily dealt with. The offense under the DMCA is offering,
providing or otherwise trafficking in circumvention technology. An essential
ingredient, as explained above, is a desire to bring about the dissemination.
Hence, a strong requirement of that forbidden purpose is an essential
prerequisite to any liability for linking.
 Accordingly, there may be no injunction against, nor liability for,
linking to a site containing circumvention technology, the offering of which is
unlawful under the DMCA, absent clear and convincing evidence that those
responsible for the link (a) know at the relevant time that the offending
material is on the linked-to site, (b) know that it is circumvention technology
that may not lawfully be offered, and (c) create or maintain the link for the
purpose of disseminating that technology.259 Such a standard
will limit the fear of liability on the part of web site operators just as
the New York Times standard gives the press great comfort in publishing all
sorts of material that would have been actionable at common law, even in the
face of flat denials by the subjects of their stories. And it will not subject
web site operators to liability for linking to a site containing proscribed
technology where the link exists for purposes other than dissemination of that
In this case, plaintiffs have established by clear and convincing evidence
that these defendants linked to sites posting DeCSS, knowing that it was a
circumvention device. Indeed, they initially touted it as a way to get free
movies,260 and they later maintained the links to promote the dissemination of
the program in an effort to defeat effective judicial relief. They now know that
dissemination of DeCSS violates the DMCA. An anti-linking injunction on these
facts does no violence to the First Amendment. Nor should it chill the
activities of web site operators dealing with different materials, as they may
be held liable only on a compelling showing of deliberate evasion of the
A. Injury to Plaintiffs
The DMCA provides that " [a]ny person injured by a violation of section
1201 or 1202 may bring a civil action in an appropriate United States court for
such violation." 261 For the reasons set forth above, plaintiffs obviously
have suffered and, absent effective relief, will continue to suffer injury by
virtue of the ready availability of means of circumventing the CSS access
control system on their DVDs. Defendants nevertheless argue that they have not
met the injury requirement of the statute. Their contentions are a farrago of
They begin with the assertion that plaintiffs have failed to prove that
decrypted motion pictures actually are available.262 To be sure, plaintiffs
might have done a better job of proving what appears to be reasonably obvious.
They certainly could have followed up on more of the 650 movie titles listed on
the web site described above to establish that the titles in fact were
available. But the evidence they did adduce is not nearly as meager as
defendants would have it. Dr. Shamos did pursue and obtain a pirated copy of a
copyrighted, DivX'd motion picture from someone he met in an Internet chat room.
An MPAA investigator downloaded between five and ten such copies. And the sudden
appearance of listings of available motion pictures on the Internet promptly
after DeCSS became available is far from lacking in evidentiary significance. In
any case, in order to obtain the relief sought here, plaintiffs need show only a
threat of injury by reason of a violation of the statute.263 The Court finds
that plaintiffs overwhelmingly have established a clear threat of injury by
reason of defendants' violation of the statute.
Defendants next maintain that plaintiffs exaggerate the extent of the
threatened injury. They claim that the studios in fact believe that DeCSS is not
a threat.264 But the only basis for that contention is a couple of quotations
from statements that the MPAA or one or another studio made (or considered
making but did not in fact issue) to the effect that it was not concerned about
DeCSS or that it was inconvenient to use.265 These statements, however, were
attempts to "spin" public opinion.266 They do not now reflect the
actual state of affairs or the studios' actual views, if they ever did.
Third, defendants contend that there is no evidence that any decrypted movies
that may be available, if any there are, were decrypted with DeCSS. They
maintain that " [m]any utilities and devices . . . can decrypt DVDs equally
well and often faster and with greater ease than by using DeCSS."267 This
is a substantial exaggeration. There appear to be a few other so-called rippers,
but the Court finds that DeCSS is usable on a broader range of DVDs than any of
the others. Further, there is no credible evidence that any other utility is
faster or easier to use than DeCSS. Indeed, the Court concludes that DeCSS is
the superior product, as evidenced by the fact that the web site promoting DivX
as a tool for obtaining usable copies of copyrighted
movies recommends the use of DeCSS, rather than anything else, for the
decryption step 268
and that the apparent availability of pirated motion pictures shot up so
dramatically upon the introduction of DeCSS.269
B. Permanent Injunction and Declaratory Relief
Plaintiffs seek a permanent injunction barring defendants from posting DeCSS
on their web site and from linking their site to others that make DeCSS
The starting point, as always, is the statute. The DMCA provides in relevant
part that the court in an action brought pursuant to its terms "may grant
temporary and permanent injunctions on such terms as it deems reasonable to
prevent or restrain a violation . . . ."270 Where statutes in substance so
provide, injunctive relief is appropriate if there is a reasonable likelihood of
future violations absent such relief 271
and, in cases brought by private plaintiffs, if the plaintiff lacks an adequate
remedy at law.272
 In this case, it is quite likely that defendants, unless enjoined,
will continue to violate the Act. Defendants are in the business of
disseminating information to assist hackers in "cracking" various
types of technological security systems. And while defendants argue that they
promptly stopped posting DeCSS when enjoined preliminarily from doing so, thus
allegedly demonstrating their willingness to comply with the law, their reaction
to the preliminary injunction in fact cuts the other way. Upon being enjoined
from posting DeCSS themselves, defendants encouraged others to
"mirror" the information--that is, to post DeCSS--and linked their own
web site to mirror sites in order to assist users of defendants' web site in
obtaining DeCSS despite the injunction barring defendants from providing it
directly. While there is no claim that this activity violated the letter of the
preliminary injunction, and it therefore presumably was not contumacious, and
while its status under the DMCA was somewhat uncertain, it was a studied effort
to defeat the purpose of the preliminary injunction. In consequence, the Court
finds that there is a substantial likelihood of future violations absent
There also is little doubt that plaintiffs have no adequate remedy at law.
The only potential legal remedy would be an action for damages under Section
1203(c), which provides for recovery of actual damages or, upon the election of
the plaintiff, statutory damages of up to $2,500 per offer of DeCSS. Proof of
actual damages in a case of this nature would be difficult if not virtually
impossible, as it would involve proof of the extent to which motion picture
attendance, sales of broadcast and other motion picture rights, and sales and
rentals of DVDs and video tapes of movies were and will be impacted by the
availability of DVD decryption technology. Difficulties in determining what
constitutes an "offer" of DeCSS in a world in which the code is
available to much of the world via Internet postings, among other problems,
render statutory damages an inadequate means of redressing plaintiffs' claimed
injuries. Indeed, difficulties such as this have led to the presumption that
copyright and trademark infringement cause irreparable injury,273 i.e., injury
for which damages are not an adequate remedy.274 The Court therefore holds that
the traditional requirements for issuance of a permanent injunction have been
satisfied. Yet there remains another point for consideration.
Defendants argue that an injunction in this case would be futile because
DeCSS already is all over the Internet. They say an injunction would be
comparable to locking the barn door after the horse is gone. And the Court has
been troubled by that possibility. But the countervailing arguments overcome
To begin with, any such conclusion effectively would create all the wrong
incentives by allowing defendants to continue violating the DMCA simply because
others, many doubtless at defendants' urging, are doing so as well. Were that
the law, defendants confronted with the possibility of injunctive relief would
be well advised to ensure that others engage in the same unlawful conduct in
order to set up the argument that an injunction against the defendants would be
futile because everyone else is doing the same thing.
Second, and closely related, is the fact that this Court is sorely
"troubled by the notion that any Internet user . . . can destroy valuable
intellectual property rights by posting them over the Internet."275 While
equity surely should not act where the controversy has become moot, it ought to
look very skeptically at claims that the defendant or others already have done
all the harm that might be done before the injunction issues.
The key to reconciling these views is that the focus of injunctive relief is
on the defendants before the Court. If a plaintiff seeks to enjoin a defendant
from burning a pasture, it is no answer that there is a wild fire burning in its
direction. If the defendant itself threatens the plaintiff with irreparable
harm, then equity will enjoin the defendant from carrying out the threat even if
other threats abound and even if part of the pasture already is burned.
These defendants would harm plaintiffs every day on which they post DeCSS on
their heavily trafficked web site and link to other sites that post it because
someone who does not have DeCSS thereby might obtain it. They thus threaten
plaintiffs with immediate and irreparable injury. They will not be allowed to
continue to do so simply because others may do so as well. In short, this Court,
like others than have faced the issued, is "not persuaded that modern
technology has withered the strong right arm of equity."276 Indeed, the
likelihood is that this decision will serve notice on others that "the
strong right arm of equity" may be brought to bear against them absent a
change in their conduct and thus contribute to a climate of appropriate respect
for intellectual property rights in an age in which the excitement of ready
access to untold quantities of information has blurred in some minds the fact
that taking what is not yours and not freely offered to you is stealing.
Appropriate injunctive 277
and declaratory relief will issue simultaneously with this opinion.
V. Miscellaneous Contentions
There remain for consideration two other matters, plaintiffs' application for
costs and attorney's fees and defendants' pretrial complaints concerning
The DMCA permits awards of costs and attorney's fees to the prevailing party
in the discretion of the Court. 278
Insofar as attorney's fees are concerned, this is an exception to the so-called
"American rule" pursuant to which each side in a litigation
customarily bears its own attorney's fees. As this was a test case raising
important issues, it would be inappropriate to award attorney's fees pursuant to
the DMCA. 279
There is no comparable reason, however, for failing to award costs, particularly
as taxable costs are related to the excessive discovery demands that the Court
already has commented upon. 280
A final word is in order in view of defendants' repeated pretrial claims that
their discovery efforts were being thwarted. During the course of the trial,
they applied for leave to take one deposition, which was granted. At no point
did they make any showing that they were hampered in presenting their case or
meeting the plaintiffs' case by virtue of any failure to obtain discovery. They
applied for no continuance. They have not sought a new trial. And though they
estimated that their case would take several weeks to present, the entire trial
was completed in six days. Indeed, in the Court's view, the trial fully
vindicated its pretrial assessment that there were, in actuality, very few
genuinely disputed questions of material fact, and most of those involved expert
testimony that was readily available to both sides. 281
Examination of the trial record will reveal that virtually the entire case could
have been stipulated, although the legal conclusions to be drawn from the
stipulated facts of course would have remained a matter of controversy.
In the final analysis, the dispute between these parties is simply put if not
necessarily simply resolved.
Plaintiffs have invested huge sums over the years in producing motion
pictures in reliance upon a legal framework that, through the law of copyright,
has ensured that they will have the exclusive right to copy and distribute those
motion pictures for economic gain. They contend that the advent of new
technology should not alter this long established structure.
Defendants, on the other hand, are adherents of a movement that believes that
information should be available without charge to anyone clever enough to break
into the computer systems or data storage media in which it is located. Less
radically, they have raised a legitimate concern about the possible impact on
traditional fair use of access control measures in the digital era.
Each side is entitled to its views. In our society, however, clashes of
competing interests like this are resolved by Congress. For now, at least,
Congress has resolved this clash in the DMCA and in plaintiffs' favor. Given the
peculiar characteristics of computer programs for circumventing encryption and
other access control measures, the DMCA as applied to posting and linking here
does not contravene the First Amendment. Accordingly, plaintiffs are entitled to
appropriate injunctive and declaratory relief.
1. 17 U.S.C. Section 1201 et
2. Shortly after the
commencement of the action, the Court granted plaintiffs' motion for a
preliminary injunction barring defendants from posting DeCSS. Universal City
Studios, Inc. v. Reimerdes, 82 F.Supp.2d 211 [ 53 USPQ2d 1780 ] (S.D.N.Y. 2000).
Subsequent motions to expand the preliminary injunction to linking and to vacate
it were consolidated with the trial on the merits. This opinion reflects the
Court's findings of fact, conclusions of law and decision on the merits. The
Court notes the receipt of a number of amicus submissions. Although many were
filed by defendants' counsel on behalf of certain amici, and therefore were of
debatable objectivity, the amicus submissions considered as a group were
3. David Nimmer, A Riff on
Fair Use in the Digital Millennium Copyright Act , 148 U. PA. L. REV. 673,
739-41 (2000) (hereinafter A Riff on Fair Use ).
4. United States v.
Microsoft Corp ., 84 F.Supp.2d 9, 13 (D. D.C. 1999). The quotations are from a
finding of fact in the Microsoft case of which the Court, after notice to and
without objection by the parties, takes judicial notice. Tr. at 1121. Subsequent
references to Microsoft findings reflect similar instances of judicial notice
5. United States v.
Microsoft Corp ., 84 F.Supp.2d at 13.
6. Open source is a
software development model by which the source code to a computer program is
made available publicly under a license that gives users the right to modify and
redistribute the program. The program develops through this process of
modification and redistribution and through a process by which users download
sections of code from a web site, modify that code, upload it to the same web
site, and merge the modified sections into the original code. Trial transcript
("Tr.") (Craig) at 1008.
7. Tr. (Pavlovich) at 936.
8. Tr. (DiBona) at 994-95.
10. THE NEW YORK PUBLIC
LIBRARY, SCIENCE DESK REFERENCE 496 (1995) (hereinafter SCIENCE DESK REFERENCE);
see also Tr. (Felten) at 758-59; Hon. Shira A. Scheindlin & Jeffrey Rabkin,
Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task ? 34
B. C. L. REV. 327, 333-35 (2000).
11. Tr. (Felten) at 759;
Scheindlin & Rabkin, 34 B. C. L. REV. at 333-35.
12. SCIENCE DESK
REFERENCE, at 501.
13. Id .
14. Id .
15. See Tr. (Felten) at
16. The Court's findings
with respect to the definitions of source code and object code are taken from
the trial testimony of Robert Schumann, Tr. at 258, and Drs. Edward Felten, Tr.
at 738-39, 757-63, David S. Touretzky, Tr. at 1065-91, and Andrew Appel, Tr. at
1096, and the deposition testimony of Dr. Harold Abelson, Ex. AZO at 34-37,
45-49. See also Ex. BBE.
17. Frequently, programs
written in such languages must be transformed or translated into machine
readable form by other programs known as compilers.
18. This to some degree is
an oversimplification. Object code often is directly executable by the computer
into which it is entered. It sometimes contains instructions, however, that are
readable only by computers containing a particular processor, such as a Pentium
processor, or a specific operating system such as Microsoft Windows. In such
instances, a computer lacking the specific processor or operating system can
execute the object code only if it has an emulator program that simulates the
necessary processor or operating system or if the code first is run through a
translator program that converts it into object code readable by that computer.
19. United States v.
Microsoft Corp ., 84 F.Supp.2d at 13.
20. Tr. (Shamos) at 67-68.
21. United States v.
Microsoft Corp ., 84 F.Supp.2d at 13.
22. Id . at 14.
23. Id .
24. Id .
25. Not too many years
ago, the most common transportable storage media were 5 1/4 inch flexible
magnetic disks. Their flexibility led to their being referred to as
"floppies." They have been replaced almost entirely with today's 3 1/2
inch disks, which are enclosed in hard plastic housings and which therefore are
not flexible or "floppy." The earlier name, however, has stuck.
26. Tr. (King) at 403-04.
27. Tr. (Shamos) at 24.
28. Id . at 24-25.
29. Such devices are
referred to subsequently as compliant.
41. Ex. 1.2 (Redomega
Crim, How Domains Are Stolen , 2600: THE HACKER QUARTERLY, Summer 2000, at 43).
42. Ex. 1.16 (Schlork,
Snooping via MS-Mail , 2600:THE HACKER QUARTERLY, Winter 1996-97, at 28).
43. Ex. 1.14 (Thomas Icom,
Cellular Interception Techniques , 2600: THE HACKER QUARTERLY, Spring 1995, at
44. Ex. 1.12 (nux, Fun at
Costco , 2600: THE HACKER QUARTERLY, Summer 1999, at 12).
45. Ex. 1.19 (PhranSys
Drak3, Hacking FedEx , 2600: THE HACKER QUARTERLY, Autumn 1997, at 14).
46. Ex. 1.19 (Agent Steal,
Busted! A Complete Guide to Getting Caught , 2600: THE HACKER QUARTERLY, Autumn
1997, at 6).
47. Tr. (Corley) at 790;
Ex. 52-54, 64, 79 (Corley Dec.) Para. 20; 97. Interestingly, defendants'
copyright both their magazine and the material on their web site to prevent
others from copying their works. Tr. (Corley) at 832; Ex. 96 (Corley Dep.) at
48. Tr. (Corley) at 791;
49. Tr. (Corley) at 791,
829, 848; Ex. 28.
50. Tr. (King) at 402.
51. Id . at 404, 468.
52. Id . at 408, 468, 470.
53. Id . at 404-05.
54. Id . at 404-05,
55. Id . at 406.
56. Id . at 405-06, 471,
57. Id . at 405, 470-71,
58. Id . at 406-07,
59. An algorithm is a
recipe that contains instructions for completing a task. It can be expressed in
any language, from natural spoken language to computer programming language. Ex.
AZO (Abelson Dep.) at 9-10.
60. The licensing function
initially was performed by MEI and Toshiba. Subsequently, MEI and Toshiba
granted a royalty free license to the DVD Copy Control Association ("DVD
CCA"), which now handles the licensing function. Tr. (King) at 485-86, 510;
Ex. XXY (Attaway Dep.) at 31. The motion picture companies themselves license
CSS from the DVD CCA. Ex. XYY (Attaway Dep.) at 31-32.
61. See, e.g ., Ex. AHV
Sections 5, 6.2.
62. Tr. (King) at 450-51,
492-93; Ex. XXY (Attaway Dep.) at 61-62; Ex. AHV.
63. The administrative fee
is one million yen, now about $9,200, for each "membership category"
selected by the licensee. Twelve membership categories are available, and one or
more are selected by a licensee depending on the use which the licensee intends
to make of the licensed technology. The membership categories are: content
provider, authoring studio, DVD disc replicator, DVD player manufacturer,
DVD-ROM drive manufacturer, DVD decoder manufacturer, descramble module
manufacturer, authentication chip manufacturer for DVDROM drive, authenticator
manufacturer for DVD decoder, integrated product manufacturer, and reseller. Ex.
AJB, AIZ, AOV, AOU, AOQ.
64. Tr. (King) at 437-38;
see also Tr. (Pavolvich) at 961; Ex. BD.
65. Tr. (King) at 408-09.
66. Id . at 409.
67. Id . at 417-18.
68. Id . at 442.
69. Revenue from the
distribution of DVDs makes up approximately 35 percent of Warner Brothers' total
worldwide revenue from movie distribution in the home video market. Id . at 403.
70. Distribution in the
home video market accounts for approximately 40 percent of Warner Brothers'
total income from movie distribution. Id .
71. Tr. (Johansen) at
619-22, 633, 639.
72. Id . at 619-21, 634;
(Schumann) at 246-48. Mr. Johansen testified that the "De" in DeCSS
stands for "decrypt." Tr. (Johansen) at 628.
73. Tr. (Johansen) at
622-23, 638; Ex. 9 at SCH-000846. Mr. Johansen did not post the source code on
his Web site. Tr. (Johansen) at 635.
74. Tr. (Johansen) at 620.
75. Id . at 620.
76. Id . at 621-22.
77. Id . at 621-22, 624;
(Stevenson) at 214.
78. Tr. (Johansen) at 623.
79. Substantial questions
have been raised both at trial and elsewhere as to the veracity of Mr.
Johansen's claim. See Ex. CS, at S10006 ("Our analysis indicates that the
primary technical breakthroughs were developed outside of the Linux development
80. Tr. (Johansen) at
81. Ex. 97, 107, 126.
82. Tr. (Stevenson) at
217-18, 226-29; (Schumann) at 290, 338-41; (Johansen) at 641; (Reider) at
681-85. One, DOD (Drink or Die) Speed Ripper, does not work with all DVDs that
DeCSS will decrypt. Id .; Ex. CS, at S10011; Ex. 9. Some of these programs
perform only a portion of what DeCSS does and must be used in conjunction with
others in order to decrypt the contents of a DVD. Tr. (Schuman) at 290, 338-39.
Some of defendants' claims about these other means proved baseless at trial. See
Tr. (Pavlovich) at 965-68.
83. Tr. (Corley) at 791;
84. Tr. (Corley) at 791,
829, 848; Ex. 28.
85. Tr. (Corley) at
86. Id . at 831, 845.
87. Id . at 829-30, 845.
88. Id . at 830; (Shamos)
at 38. As Mr. Corley testified, the download process generally begins with the
appearance of a dialog box, or small window, prompting the user to confirm the
location on the user's computer hard drive where the downloaded software will be
stored. The actual download does not begin until the user provides the computer
with this information. Tr. (Corley) at 830. It is possible also to create a link
that commences the download immediately upon being clicked. See Tr. (Touretzky)
89. Tr. (Reider) at 652.
90. Tr. (King) at 435,
548; (Reider) at 653; Ex. 55.
91. The other two
defendants entered into consent decrees with plaintiffs. Plaintiffs subsequently
amended the complaint to add 2600 Enterprises, Inc. as a defendant.
95. Tr. (Corley) at 834;
Ex. 96 (Corley Dep.) at 151-53.
96. Tr. (Corley) at 791;
Ex. 79 (Corley Dec.) Para.
97. Ex. 106.
98. Tr. (Shamos)
at 36-42; (Schumann) at 272-73; 265-66 (defendants' stipulation that their web
site links to other sites containing executable copies of DeCSS).
99. Tr. (Shamos) at 36-42;
(Schumann) at 272-73.
100. Tr. (Shamos) at
39-40; see also Ex. AYZ (Hunt Dep.) at 18.
101. Tr. (Shamos) at
41-42; (Schumann) at 272-73.
102. Tr. (Shamos) at
103. Tr. (Schumann) at
273; Ex. AYZ (Hunt Dep.) at 26.
104. Tr. (Johansen) at
628; see also Ex. AZN (Simons Dep.) at 48.
105. Tr. (Shamos) at 42;
(Ramadge) at 900.
106. See Tr. (Shamos) at
54-56; Ex. 112-13.
107. DivX effects what is
known as "lossy" compression--it achieves its reduction in file size
by eliminating some of the data in the file being compressed. The trick,
however, is that it seeks to do so by eliminating data that is imperceptible, or
nearly so, to the human observer. Tr. (Shamos) at 43-44; (Ramadge) at 882-98.
108. Tr. (Shamos) at 51.
109. Defendants produced
an expert whose DivX of a DeCSS decrypted file was of noticeably lower quality
than that of plaintiffs' expert's DivX'd film. The reasons for the difference
are not clear. The Court is satisfied, however, that it is possible to make high
quality 650 MB DivX'd copies of many films.
110. Tr. (Ramadge) at 930.
111. Tr. (Shamos) at
56-57. The copies do not require resynchronization of the sound and graphics.
112. Tr. (Shamos) at 95.
113. Tr. (Shamos) at
89-90, 98; (Peterson) at 865; (Pavlovich) at 943.
114. Tr. (Shamos) at 90;
(Felten) at 772; (Peterson) at 879.
115. See, e.g ., Tr.
(Peterson) at 861, 875-76.
116. Id . (Shamos) at
117. Id .
118. Id . at 77.
119. It should be noted
here that the transmission time achieved by plaintiff's expert, Dr. Shamos,
almost certainly was somewhat skewed because the work was done late at night on
a university system after the close of the regular school year, conditions
favorable to high effective transmission rates due to low traffic on the system.
120. Tr. (Schumann) at
121. Tr. (Shamos) at
122. Id . at 76-77.
123. Ex. AYY (Reider Dep.)
at 98-101; see also id . at 121-23.
124. Ex. 116B.
125. Tr. (Reider) at 661.
126. Tr. (King) at 418.
127. Id . at 420.
128. WIPO Copyright
Treaty, Apr. 12, 1997, Art. 11, S. Treaty Doc. No. 105-17 (1997), available at
1997 WL 447232.
129. There is an excellent
account of the legislative history of the statute. Nimmer, A Riff on Fair Use ,
148 U. PA. L. REV. at 702-38.
130. See generally S. REP.
NO. 105-190, 105th Cong., 2d Sess. ("SENATE REP."), at 2-8 (1998).
133. Plaintiffs rely also
on Section 1201(b), which is very similar to Section 1201(a)(2) except that the
former applies to trafficking in means of circumventing protection offered by a
technological measure that effectively protects "a right of a copyright
owner in a work or a portion thereof" whereas the latter applies to
trafficking in means of circumventing measures controlling access to a work. See
generally 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT
("NIMMER") Section 12A.03 [C] (1999). In addition, as noted below,
certain of the statutory exceptions upon which defendants have relied apply only
to Section 1201(a)(2).
134. 17 U.S.C. Section
1201(a)(2). See also 1 NIMMER Section 12A.03 [a], at 12A-16.
135. In their Post-Trial
Brief, defendants argue that "at least some of the members of
Congress" understood Section 1201 to be limited to conventional devices,
specifically 'black boxes,' as opposed to computer code." Def. Post-Trial
Mem. at 21. However, the statute is clear that it prohibits " any
technology , " not simply black boxes. 17 U.S.C. Section 1201(a)(2)
136. 17 U.S.C. Section
137. Decryption or
avoidance of an access control measure is not "circumvention" within
the meaning of the statute unless it occurs "without the authority of the
copyright owner." 17 U.S.C. Section 1201(a)(3)(A). Defendants posit that
purchasers of a DVD acquire the right "to perform all acts with it that are
not exclusively granted to the copyright holder." Based on this premise,
they argue that DeCSS does not circumvent CSS within the meaning of the statute
because the Copyright Act does not grant the copyright holder the right to
prohibit purchasers from decrypting. As the copyright holder has no statutory
right to prohibit decryption, the argument goes, decryption cannot be understood
as unlawful circumvention. Def. Post-Trial Mem. 10-13. The argument is pure
sophistry. The DMCA proscribes trafficking in technology that decrypts or avoids
an access control measure without the copyright holder consenting to the
decryption or avoidance. See JUDICIARY COMM. REP. at 17-18 (fair use applies
"where the access is authorized"). Defendants' argument seems to be a
corruption of the first sale doctrine, which holds that the copyright holder,
notwithstanding the exclusive distribution right conferred by Section 106(3) of
the Copyright Act, 17 U.S.C. Section 106(3), is deemed by its "first
sale" of a copy of the copyrighted work to have consented to subsequent
sale of the copy. See generally 2 NIMMER Sections 8.11-8.12.
138. Id . Section
139. RealNetworks, Inc. v.
Streambox, Inc ., No. 2:99CV02070, 2000 WL 127311, *9 (W.D. Wash. Jan. 18,
140. HOUSE COMM. ON
JUDICIARY, SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY THE UNITED
STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998 ("SECTION-BY-SECTION
ANALYSIS"), at 10 (Comm. Print 1998) (emphasis in original).
142. Defendants, in a
reprise of their argument that DeCSS is not a circumvention device, argue also
that CSS does not effectively control access to copyrighted works within the
meaning of the statute because plaintiffs authorize avoidance of CSS by selling
their DVDs. Def. Post-Trial Mem. 10-13. The argument is specious in this context
as well. See supra note 137.
143. Tr. (Johansen) at
619; (Corley) 833-34.
144. Def. Post-Trial Mem.
145. 1 NIMMER Section
12A.03[A], at 12A-15 (1999 Supp.).
146. See id . Section
12A.03[B], at 12A-25 to 12A-26.
147. See Def. Post-Trial
Mem. at 13.
148. 17 U.S.C. Sections
149. Id . Section
150. Def. Post-Trial Mem.
151. COMMERCE COMM. REP.
152. 17 U.S.C. Section
153. Id . Section
154. Id . Section
155. Ex. 96 (Corley Dep.)
156. In any case, Section
1201(g), where its requirements are met, is a defense only to claims under
Section 1201(a)(2), not those under Section 1201(b).
157. Def. Mem. in Opp. to
Prelim. Inj. (DI 11) at
158. Id . Section
159. Like Section 1201(g),
moreover, Section 1201(j) provides no defense to a Section 1201(b) claim.
160. 17 U.S.C. Section
161. Indeed, as many have
pointed out, technological means of controlling access to works create a risk,
depending upon future technological and commercial developments, of limiting
access to works that are not protected by copyright such as works upon which
copyright has expired. See, e.g ., Nimmer, A Riff on Fair Use , 148 U. PA. L.
REV. at 738-40; Hannibal Travis, Comment, Pirates of the Information
Infrastrcuture: Blackstonian Copyright and the First Amendment , 15 BERKELEY
TECH. L. J. 777, 861 (2000) (hereinafter Pirates of the Information
Infrastructure ); Yochai Benkler, Free as the Air to Common Use: First Amendment
Constraints on Enclosure of the Public Domain , 74 N.Y.U. L. REV. 354, 421
162. Of course, one might
quote the verbal portion of the sound track, rerecord both verbal and nonverbal
portions of the sound track, and video tape or otherwise record images produced
on a monitor when the DVD is played on a compliant DVD player.
163. 17 U.S.C. Section
164. See , e.g., COMMERCE
COMM. REP. 25-26.
165. JUDICIARY COMM. REP.
166. Id .
167. 17 U.S.C. Sections
1201(a)(1)(B)-(E). The rule-making is under way. 65 F.R. 14505-06 (Mar. 17,
2000); see also (http://www.loc.gov/copyright/1201/anticirc.html) (visited July
168. 17 U.S.C. Sections
1201(d), (f), (g), (j).
169. 464 U.S. 417 (1984).
170. Id . at 443, 446.
171. RealNetworks, Inc .,
2000 WL 127311, at *8 (quoting 1 NIMMER Section 12A.18 [B], at 12A-130)
(internal quotation marks omitted).
ANALYSIS 9 ("The Sony test of 'capab [ility] of substantial noninfringing
uses,' while still operative in cases claiming contributory infringement of
copyright, is not part of this legislation . . . .").
173. 17 U.S.C. Section
174. Tr. (Schumann) at
175. Id . at 261-62.
176. For example, a web
page maintained by a radio station might provide a hyperlink to a weather report
by programming its page to transfer the user to a National Weather Service site
if the user clicks on the "weather" hyperlink.
177. 17 U.S.C. Section
178. See 2 THE COMPACT
EDITION OF THE OXFORD ENGLISH DICTIONARY 3372 (1971).
179. See 2 id . 2340.
180. See 1 id . 1979.
181. See, e.g., Strom v.
Goldman, Sachs & Co ., 202 F.3d 138, 146-47 (2d Cir. 1999).
182. See DVD Copy Control
Ass'n, Inc. v. McLaughlin , No. CV 786804, 2000 WL 48512, *4 (Cal. Super. Jan.
21, 2000) ("website owner cannot be held responsible for all of the content
of the sites to which it provides links"); Richard Raysman & Peter
Brown, Recent Linking Issues , N.Y.L.J., Feb. 8, 2000, p. 3, col. 1 (same).
183. Roth v. United States
, 354 U.S. 476, 483 (1957) (obscenity). See also, e.g., Sable Comm. of Cal.,
Inc. v. FCC , 492 U.S. 115, 124 (1989) (obscenity); Bose Corp. v. Consumers
Union of United States , 466 U.S. 485, 504 (1984) (libel, obscenity, fighting
words, child pornography); Beauharnais v. Illinois , 343 U.S. 250, 266 (1952)
(defamation); Chaplinsky v. New Hampshire , 315 U.S. 568, 571-72 (1942)
184. Robert Post,
Encryption Source Code and the First Amendment , 15 BERKELEY TECH. L. J. 713,
714 (2000); see R.A.V. v. City of St. Paul, Minnesota , 505 U.S. 373, 382 (1992)
(statements that categories of speech are "unprotected" are not
literally true; characterization indicates only that they are subject to content
185. The Court is indebted
to Professor David Touretzky of Carnegie-Mellon University, who testified on
behalf of defendants, for his lucid explication of this point. See Tr.
(Touretzky) at 1066-84 & Ex. BBE, CCO, CCP, CCQ. As
will appear, however, the point does not lead the Court to the same conclusion
as Dr. Touretzky.
186. LEONARD LEVY, FREEDOM
OF SPEECH IN EARLY AMERICAN HISTORY: LEGACY OF SUPPRESSION passim (1960); see
also 4 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL
LAWSection 20.5 (1999); 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 151-52 (1769).
187. See, e.g., Hurley v.
Irish-American Gay, Lesbian and Bisexual Group , 515 U.S. 557, 569 (1995).
188. Junger v. Daley , 209
F.3d 481, 485 (6th Cir. 2000); Bernstein v. U.S. Dept. of State , 176 F.3d 1132,
1141, reh'g granted and opinion withdrawn , 192 F.3d 1308 (9th Cir. 1999);
Bernstein v. U.S. Dept. of State , 922 F.Supp. 1426, 1436 (N.D. Cal. 1996)
(First Amendment extends to source code); see Karn v. U.S. Dept. of State , 925
F.2d 1, 10 (D. D.C. 1996) (assuming First Amendment extends to source code).
189. Police Department of
the City of Chicago v. Mosely , 408 U.S. 92, 95-96 (1972).
190. Turner Broadcasting
System, Inc. v. FCC , 512 U.S. 622, 641 (1994); accord, R.A.V ., 505 U.S. at
191. Sable Comm. of Cal.,
Inc. v. FCC , 492 U.S. at 126.
192. Turner Broadcasting
System, Inc ., 512 U.S. at 662 (citing United States v. O'Brien , 391 U.S. 367,
193. See, e.g., United
States v. O'Brien, 391 U.S. at 376.
194. During the Vietnam
era, many who opposed the war, the draft, or both burned draft cards as acts of
protest. Lower federal courts typically concluded or assumed that the expression
inherent in this act of protest brought the behavior entirely within the scope
of the First Amendment. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION
82 (1970). In United States v. O'Brien , 391 U.S. at 376, however, the Supreme
Court rejected "the view that an apparently limitless variety of conduct
can be labeled 'speech' whenever the person engaged in the conduct intends
thereby to express an idea" and adopted a new approach, discussed below, to
the regulation of expressive conduct as opposed to pure speech. Accord, Spence
v. State of Washington , 418 U.S. 405, 410 (1974). The point for present
purposes is that the presence of expression in some broader mosaic does not
result in the entire mosaic being treated as "speech."
195. Id . at 376.
196. Def. Post-Trial Mem.
197. Ward v. Rock Against
Racism , 491 U.S. 781, 791 (1989); accord, Hill v. Colorado, 120 S. Ct. 2480,
2491 (2000); Turner Broadcasting System, Inc. , 512 U.S. at 642; Madsen v.
Women's Health Center, Inc. , 512 U.S. 753, 763 (1994).
198. See generally Turner
Broadcasting System, Inc. , 512 U.S. at 646-49 (holding that
"must-carry" provisions of the Cable Television Consumer Protection
and Competition Act of 1992 are content neutral in view of "overriding
congressional purpose . . . unrelated to the content of expression"
manifest in detailed legislative history).
199. 475 U.S. 41 (1986).
200. Id . at 46-49; see
also Young v. American Mini Theatres, Inc. , 427 U.S. 50, 71 n.34 (1976).
201. See Karn , 925 F.
Supp. at 10 (regulations controlling export of computer code content neutral);
Benkler, 74 N.Y.U. L. REV. at 413 (DMCA "content and viewpoint
202. Turner Broadcasting
System, Inc ., 512 U.S. at 662 (quoting O'Brien , 391 U.S. at 377 (internal
quotation marks omitted)); see also, e.g., United States v. Weslin , 156 F.3d
292, 297 (2d Cir. 1998).
203. Turner Broadcasting
System, Inc ., 512 U.S. at 662; see also Hill , 120 S.Ct. at 2494.
204. Ward , 491 U.S. at
799 (quoting United States v. Albertini , 472 U.S. 675, 689 (1985)).
205. U.S. CONST., art. I,
Section 8 (Copyright Clause).
207. Harper & Row,
Publishers, Inc. v. Nation Enterprises , 471 U.S. 539, 558 [ 225 USPQ 1073 ]
208. It is conceivable
that technology eventually will provide means of limiting access only to
copyrighted materials and only for uses that would infringe the rights of the
copyright holder. See, e.g ., Travis, 15 BERKELEY TECH. L.J. at 835-36; Mark
Gimbel, Note, Some Thoughts on the Implications of Trusted Systems for
Intellectual Property Law, 50 Stan. L. Rev. 1671, 1875-78 (1998); Mark Stefik,
Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge
Us to Rethink Digital Publishing , 12 BERKELEY TECH. L.J. 137, 138- 40 (1997).
We have not yet come so far.
209. 209 F.3d 481 (6th
210. Id . at 485.
211. 391 U.S. at 377.
212. 209 F.3d at 485.
213. See Lee Tien,
Publishing Software as a Speech Act , 15 BERKELEY TECH. L. J. 629, 694-701
(2000). Professor Tien's analysis itself has been criticized. Robert Post,
Encryption Source Code and the First Amendment , 15 BERKELEY TECH. L. J. 715
214. This perhaps is not
as surprising as first might appear. Computer "viruses" are other
programs, an understanding of which is aided by the biological analogy evident
in their name. See, e.g., Jeffrey O. Kephart, Gregory B. Sorkin, David M. Chess
and Steve R. White, Fighting Computer Viruses , SCIENTIFIC AMERICAN, (visited
Aug. 16, 2000) (http://www.sciam. com/1197issue/1197kephart.html.)
215. DAVID E. LILIENFELD
& PAUL D. STOLLEY, FOUNDATIONS OF EPIDEMIOLOGY 38-41 & Fig. 3-1 (3d ed.
1994); JOHN P. FOX, CARRIE E. HALL & LILA R. ELVEBACK, EPIDEMIOLOGY--MAN AND
DISEASE 246-47 (1970).
216. Of course, not
everyone who obtains DeCSS or some other decryption program necessarily will use
it to engage in copyright infringement, just as not everyone who is exposed to a
contagious disease contracts it. But that is immaterial. The critical point is
that the combination of (a) the manner in which the ability to infringe is
spread and (b) the lack of any practical means of controlling infringement at
the point at which it occurs once the capability is broadly disseminated render
control of infringement by controlling availability of the means of infringement
far more critical in this context.
217. See, e.g ., Guido
Calabresi & Jeffrey O. Cooper, New Directions in Tort Law , 30 VAL. U. L.
REV. 859, 870-72 (1996).
218. As has been noted
above, some categories of speech, which often have been referred to inaccurately
as "unprotected," may be regulated on the basis of their content.
R.A.V ., 505 U.S. at 382-83. These have included obscenity and "fighting
words," to name two such categories. The determination of the types of
speech which may be so regulated has been made through a process termed by one
leading commentator as "definitional" balancing--a weighing of the
value of free expression in these areas against its likely consequences and the
legitimate interests of government. Melville B. Nimmer, The Right to Speak from
Times to Time: First Amendment Theory Applied to Libel and Misapplied to
Privacy, 56 CAL. L. REV. 935, 942 (1968); see R.A.V., 505 U.S. at 382-83. Thus,
even if one accepted defendants' argument that the anti-trafficking prohibition
of the DMCA is content based because it regulates only code that
"expresses" the programmer's "ideas" for circumventing
access control measures, the question would remain whether such code--code
designed to circumvent measures controlling access to private or legally
protected data--nevertheless could be regulated on the basis of that content.
For the reasons set forth in the text, the Court concludes that it may.
Alternatively, even if such a categorical or definitional approach were
eschewed, the Court would uphold the application of the DMCA now before it on
the ground that this record establishes an imminent threat of danger flowing
from dissemination of DeCSS that far outweighs the need for unfettered
communication of that program. See Landmark Communications, Inc. v. Virginia ,
435 U.S. 829, 842-43 (1978).
219. For example, one
might imagine a computer program the object of which was to teach the user a
particular view of a subject, e.g., evolution or creationism. Such a program,
like this one, would be within the area of First Amendment concern and
functional. Yet a regulation barring its use would be subject to a quite
different analysis. Such a ban, for example, might be based on the content of
the message the program caused the computer to deliver to the student-user and
thus quite clearly be content based. Similarly, the function--teaching--would
not involve the same likelihood that the dissemination would bring about a harm
that the government has a legitimate right to prevent.
220. New York Times Co. v.
United States , 403 U.S. 713, 714 (1971) (per curiam) (quoting Bantam Books,
Inc. v. Sullivan , 372 U.S. 58, 70 (1963)).
221. See, e.g., Posadas de
Puerto Rico Assoc. v. Tourism Co. of Puerto Rico , 478 U.S. 328 (1986)
(upholding restrictions on casino gambling advertising); Times Film Corp. v.
Chicago , 365 U.S. 43 (1961) (upholding local ordinance requiring review of
films by municipal officials as prerequisite to issuance of permits for public
screening); Salinger v. Random House, Inc ., 811 F.2d 90 [ 1 USPQ2d 1673 ] (2d
Cir.) (enjoining biographer's use of subject's unpublished letters as copyright
infringement), cert. denied , 484 U.S. 890 (1987); Dallas Cowboys Cheerleaders
v. Pussycat Cinema, Ltd. , 604 F.2d 200 [ 203 USPQ 161 ] (2d Cir. 1979)
(enjoining distribution of film on ground that actresses' uniforms infringed
plaintiff's trademark). See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL
LAW Section 12-36, at 1045-46 (1988) (hereinafter TRIBE).
222. See, e.g., Charles of
the Ritz Group, Ltd. v. Quality King Distributors, Inc ., 832 F.2d 1317 [ 4
USPQ2d 1778 ] (2d Cir. 1987) (upholding injunction against commercial slogan on
ground that slogan created a likelihood of confusion and is therefore
"beyond the protective reach of the First Amendment"); Vondran v.
McLinn , No. 95-20296, 1995 WL 415153, *6 (N.D. Cal. July 5, 1995) (enjoining
defendant's false and disparaging remarks regarding plaintiff's patented process
for making fiber reinforced concrete on the ground that the remarks are not
protected by the First Amendment).
223. See, e.g., Times Film
Corp ., 365 U.S. 43 (upholding local ordinance requiring review by city
officials of all films as a prerequisite to grant of permit for public screening
despite concerns of First Amendment violations); Posadas de Puerto Rico Assoc. ,
478 U.S. 328 (upholding restrictions on advertising despite finding that the
advertising fell within ambit of First Amendment); Dallas Cowboys Cheerleaders,
Inc ., 604 F.2d 200 [ 203 USPQ 161 ] (enjoining distribution of film for
trademark infringement despite claim that injunction violated distributor's
First Amendment rights).
224. 4 WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (1769).
225. See Pittsburgh Press
Co. v. Pittsburgh Comm. on Human Rel ., 413 U.S. 376, 390 (1973).
226. Martin H. Redish, The
Proper Role of the Prior Restraint Doctrine in First Amendment Theory , 70 VA.
L. REV. 53, 54 (1983) (hereinafter "Redish"). See also LAURENCE H.
TRIBE, AMERICAN CONSTITUTIONAL LAW Section 12-34, at 1040-41 (2d ed. 1988).
228. Despite the
conventional wisdom, it is far from clear that an injunction necessarily is a
prior restraint. Our circuit, for example, has suggested that the prior
restraint doctrine does not apply to content neutral injunctions. See e.g.,
Dallas Cowboys Cheerleaders, Inc. , 604 F.2d at 206. At least one commentator
persuasively has argued that there is little justification for placing
injunctions, at least permanent injunctions issued after trial, in a disfavored
constitutional position. Jeffries, 92 YALE L.J. at 426-34. Nevertheless, there
is no reason to decide that question in this case. The following discussion
therefore assumes that the permanent injunction plaintiff seeks would be a
"prior restraint," although it concludes that it would not be
229. 283 U.S. 697 (1931).
230. 403 U.S. 713 (1971).
231. 427 U.S. 539 (1976).
232. See H.R. REP.
106-216, 106th Cong., 1st Sess. (1999) ("Notwithstanding [penalties for
copyright infringement] copyright piracy of intellectual property flourishes,
assisted in large part by today's world of advanced technologies. For example,
industry groups estimate that counterfeiting and piracy of computer software
cost the affected copyright holders more than $11 billion last year (others
believe the figure is closer to $20 billion). In some countries, software piracy
rates are as high as 97% of all sales. The U.S. rate is far lower (25%), but the
dollar losses ($2.9 billion) are the highest worldwide. The effect of this
volume of theft is substantial: lost U.S. jobs, lost wages, lower tax revenue,
and higher prices for honest purchasers of copyrighted software. Unfortunately,
the potential for this problem to worsen is great."); S. REP. 106-140,
106th Cong., 1st Sess. (1999) ("Trademark owners are facing a new form of
piracy on the Internet caused by acts of 'cybersquatting.' "); S. REP.
105-190, 105th Cong., 2d Sess. (1998) ("Due to the ease with which digital
works can be copied and distributed worldwide virtually instantaneously,
copyright owners will hesitate to make their works readily available on the
Internet without reasonable assurance that they will be protected against
massive piracy."); H.R. REP. 105-339, 105th Cong., 1st Sess. (1997)
("[C]opyright piracy flourishes in the software world.").
233. Mark A. Lemley &
Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases
, 48 DUKE L.J. 147, 210 & n.275 (1998).
234. See, e.g., Pittsburgh
Press Co ., 413 U.S. at 390 ("The special vice of a prior restraint is that
communication will be suppressed . . . before an adequate determination that it
is unprotected by the First Amendment."); Lemley & Volokh, 48 DUKE L.J.
at 200-02, 211; see Redish, 70 VA. L. REV. at 75-83.
235. See Lemley &
Volokh, 48 DUKE L.J. at 211-12, 215 (acknowledging that high likelihood of
success diminishes risk of erroneous suppression of protected speech).
236. Def. Post-Trial Mem.
237. Id . at 22.
Defendants argue also that the DMCA as applied is overbroad in that "it
would prohibit defendants from posting and making programs such as DeCSS
available in any form, from English to any level of computer code." Id .
The overbreadth doctrine, however, enables litigants to challenge a statute not
merely because their own First Amendment rights are violated, but because the
statute may cause others to abstain from constitutionally protected expression.
Broadrick v. Oklahoma , 413 U.S. 601, 612 (1973). This aspect of defendants'
argument, which in any case is an overstatement, therefore does not refer to
overbreadth in the sense relevant here.
238. Broadrick , 413 U.S.
239. Gooding v. Wilson ,
405 U.S. 518, 520-21 (1972) (quoting Dombrowski v. Pfister , 380 U.S. 479, 486
240. Gooding , 405 U.S. at
241. Los Angeles Police
Department v. United Reporting Pub. Corp ., 120 S. Ct. 483, 489 (1999) (quoting
New York v. Ferber , 458 U.S. 747, 769 (1982) (quoting Broadrick , 413 U.S. at
242. Id . at 489 (quoting
Ferber , 458 U.S. at 770 (quoting Broadrick , 413 U.S. at 615)).
243. Broadrick , 413 U.S.
244. Tr. (King) at 441.
245. Defendants argue that
the right of third parties to view DVD movies on computers running the Linux
operating system will be materially impaired if DeCSS is not available to them.
However, the technology to build a Linux-based DVD player has been licensed by
the DVD CCA to at least two companies, and there is no reason to think that
others wishing to develop Linux players could not obtain licenses if they so
chose. Tr. (King) at 437-38. Therefore, enforcement of the DMCA to prohibit the
posting of DeCSS would not materially impair the ability of Linux users to view
DVDs on Linux machines. Further, it is not evident that constitutional
protection of free expression extends to the type of device on which one plays
copyrighted material. Therefore, even assuming arguendo that the ability of
third parties to view DVD movies on Linux systems were materially impaired by
enforcement of the DMCA in this case, this impairment would not necessarily
implicate the First Amendment rights of these third parties.
246. CSS encryption
coupled with the characteristics of compliant DVD players also forecloses
copying of digital sound files. It is not clear, however, that this is a
substantial impediment to copying sound from motion picture DVDs. A DVD can be
played on a compliant player and the sound re-recorded. Whether the sound
quality thus obtained would be satisfactory might well depend upon the
particular use to which the copy was put.
247. The same point might
be made with respect to copying of works upon which copyright has expired. Once
the statutory protection lapses, the works pass into the public domain. The
encryption on a DVD copy of such a work, however, will persist. Moreover, the
combination of such a work with a new preface or introduction might result in a
claim to copyright in the entire combination. If the combination then were
released on DVD and encrypted, the encryption would preclude access not only to
the copyrighted new material, but to the public domain work. As the DMCA is not
yet two years old, this does not yet appear to be a problem, although it may
emerge as one in the future.
248. Defendants argue that
"there is now a full evidentiary record" and that the overbreadth
issue therefore should be decided. Def. Post-Trial Mem. at 22 n.11. With
respect, the evidence as to the impact of the anti-trafficking provision of the
DMCA on prospective fair users is scanty and fails adequately to address the
issues. This is not to minimize the interests of the amici who have submitted
briefs in this case. The Court simply does not have a sufficient evidentiary
record on which to evaluate their claims.
249. 17 U.S.C. Section
250. Def. Post-Trial Mem.
251. Village of Hoffman
Estates v. Flipside, 455 U.S. 489, 495 (1982).
252. See 17 U.S.C. Section
253. Ward, 491 U.S. at 799
(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
254. ACLU v. Reno, 929
F.Supp. 824, 837 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997).
255. Richard Raysman &
Peter Brown, Recent Linking Issues, N.Y.L.J., Feb. 8, 2000, p. 3, col. 1.
256. Cf. New York Times
Co. v. Sullivan, 376 U.S. 254, 271-73, 283-88 (1964).
257. Id. at 283; Curtis
Pub. Co. v. Butts, 388 U.S. 130, 155 (1967); St. Amant v. Thompson, 390 U.S.
727, 731 (1968); ROBERT D. SACK, SACK ON DEFAMATION Section 1.2.4 (3d ed. 1999).
258. 418 U.S. 323, 347-38 (1974).
259. In evaluating
purpose, courts will look at all relevant circumstances. Sites that advertise
their links as means of getting DeCSS presumably will be found to have created
the links for the purpose of disseminating the program. Similarly, a site that
deep links to a page containing only DeCSS located on a site that contains a
broad range of other content, all other things being equal, would more likely be
found to have linked for the purpose of disseminating DeCSS than if it merely
links to the home page of the linked-to site.
260. Tr. (Corley) at 820.
261. 17 U.S.C. Section
262. Def. Post-Trial Mem.
263. The statute expressly
authorizes injunctions to prevent or restrain violations, 17 U.S.C. Section
1203(b)(1), thus demonstrating that the requisite injury need only be
264. Def. Post-Trial Mem.
265. Id. at 28-29.
266. See, e.g., Ex. AYZ
(Hunt Dep.) at 94-104.
267. Id. 30.
268. Ex. 113.
269. Defendants' argument
would lack merit even if there were credible proof that other circumvention
devices actually exist and produce results comparable to DeCSS. The available
movies must have been decrypted with DeCSS or something else. As far as this
record discloses, any such device or technology would violate the DMCA for the
same reasons as does DeCSS. In consequence, this case comes within the principle
of Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948). Where, as here, two or
more persons take substantially identical wrongful actions, one and only one of
which had to be the source of the plaintiffs' injury, and it is equally likely
that one inflicted the injury as the other, the burden of proof on causation
shifts to the defendants, each of which is liable absent proof that its action
did not cause the injury. See 4 Fowler V. Harper & Fleming James, Jr., THE
LAW OF TORTS Sections 101-04 (2d ed. 1996). Defendants' efforts to avoid the
consequences of this common sense principle are unpersuasive. They argue, for
example, that plaintiffs may not invoke the theory unless they join as
defendants everyone who may have contributed to the injury. Def. Post-Trial Mem.
at 32 n.18 (citing Ex. UZ). It would be difficult to imagine a more nonsensical
requirement in the context of this case. Where, as here, harm is done by
dissemination of information over the Internet, probably by a substantial number
of people all over the world, defendants' proposed rule would foreclose judicial
relief anywhere because joinder of all plainly would be impossible in any one
place, and technology does not permit identification of which wrongdoer's
posting or product led to which pirated copy of a copyrighted work.
270. 17 U.S.C. Section
271. See, e.g., SEC v.
Unique Financial Concepts, Inc., 196 F.3d 1195, 1199 n.2 (2d Cir. 1999)
(injunction under Section 20(b) of the Securities Act of 1933, 15 U.S.C. Section
77t(b), which permits an injunction "upon a proper showing," requires
"a reasonable likelihood that the wrong will be repeated"); CFTC v.
Hunt, 591 F.2d 1211, 1220 (7th Cir. 1979) (same under Commodity Exchange Act, 7
U.S.C. Section 13a-1(b)); SEC v. Bausch & Lomb Inc., 577 F.2d 8, 18 (2d Cir.
1977) (reasonable likelihood of future violations required under Section 21(d)
of Securities Exchange Act of 1934, 15 U.S.C. Section 78u(d), which permits an
injunction "upon a proper showing" where person "engaged or . . .
about to engage in" violation of statute).
272. See, e.g., Rondeau v.
Mosinee Paper Corp., 422 U.S. 49, 57 (1975) (injunctive relief in private action
under Section 13(d) of the Securities Exchange Act of 1934, 15 U.S.C. Section
78m(d), as added by the Williams Act, requires a showing of irreparable harm and
inadequacy of legal remedies).
273. Tough Traveler, Ltd.
v. Outbound Prods., 60 F.3d 964, 967-68 [ 35 USPQ2d 1617 ] (2d Cir. 1995)
(trademark); Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 124 [
30 USPQ2d 1954 ] (2d Cir. 1994) (copyright).
274. See, e.g.,
Northwestern Nat'l Ins. Co. v. Alberts, 937 F.2d 77, 80 (2d Cir. 1991)
("The irreparable injury requisite . . . overlaps with the absent lack of
adequate remedy at law necessary to establish the equitable rights.");
Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981)
("There must also be a showing of irreparable harm, the absence of an
adequate remedy at law, which is the sine qua non for the grant of such
275. Religious Tech. Ctr.
v. Netcom On-Line Comm. Servs., Inc., 923 F.Supp. 1231, 1256 (N.D. Cal. 1995).
276. Com-Share, Inc. v.
Computer Complex, Inc., 338 F.Supp. 1229, 1239 (E.D. Mich. 1971).
277. During the trial,
Professor Touretzky of Carnegie Mellon University, as noted above, convincingly
demonstrated that computer source and object code convey the same ideas as
various other modes of expression, including spoken language descriptions of the
algorithm embodied in the code. Tr. (Touretzky) at 1068-69; Ex. BBE, CCO, CCP,
CCQ. He drew from this the conclusion that the preliminary injunction
irrationally distinguished between the code, which was enjoined, and other modes
of expression that convey the same idea, which were not, id., although of course
he had no reason to be aware that the injunction drew that line only because
that was the limit of the relief plaintiffs sought. With commendable candor, he
readily admitted that the implication of his view that the spoken language and
computer code versions were substantially similar was not necessarily that the
preliminary injunction was too broad; rather, the logic of his position was that
it was either too broad or too narrow. Id. at 1070-71. Once again, the question
of a substantially broader injunction need not be addressed here, as plaintiffs
have not sought broader relief.
278. 17 U.S.C. Section
279. See Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 (1994) (articulating factors relevant to fee
awards under the Copyright Act).
280. Universal City
Studios, Inc. v. Reimerdes, 00 Civ. 0277 (LAK), 2000 WL 987285 (S.D.N.Y. July
281. The chief factual
issue actually litigated at trial was the speed with which decrypted files could
be transmitted over the Internet and other networks.