24 February 2001
Source: Hardcopy from Public Records Office, US Court of Appeals, Second Circuit, New York, NY.
Thanks to Public Records Office staff Richard Montañez, Vincenza Singleton and Kenard Harris.
For 2600 and amici briefs: http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/
For intervenor brief by the US Attorney for Southern District of New York: http://cryptome.org/mpaa-v-2600-usa.htm
Docket excerpts (full prior docket http://cryptome.org/mpaa-v-2600-ca2.txt):
2/8/01 New party added: Daniel S. Alter Esq., representing The United States of America (Intervenor) (cv72) 2/8/01 Movant United States of A motion for leave to intervene, file a brief and participate in oral argument FILED (w/pfs). [1790255-1] (cv72) ... 2/20/01 Appellee Universal City, Paramount, Metro-Goldwyn-Mayer, Tristar Pictures, Columbia Pictures, Time Warner Entertai, Disney Enterprises, Twentieth Century brief filed with proof of service. (cv74) 2/20/01 Moveant United States of A brief received. Problem: motion pending. (cv74) 2/20/01 Order FILED GRANTING motion to intervene/become party [1790255-1] by Intervenor United States of A, endorsed on motion form dated 2/8/01. IT IS HEREBY ORDERED that the motion to leave to intervene, file brief and participate in oral argument be and it hereby is GRANTED. Intervenor's brief is due on 2/19/01. Before: Hon. Katzmann, C.J. (BJM) (cv74) 2/22/01 Notice to counsel re: Ordered motion dated 2/20/01. (cv74)
UNITED STATES COURT OF APPEALS
FEB 20 2001
To Be Argued By:
CHARLES S. SIMS
FOR THE SECOND CIRCUIT
UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES
CORPORATION, METRO-GOLDWYN-MAYER STUDIOS , INC.
TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES,
INC., TIME WARNER ENTERTAINMENT COMPANY, L.P.,
DISNEY ENTERPRISES INC., TWENTIETH CENTURY FOX
-- v. --
ERIC CORLEY, also known as Emmanuel Goldstein,
and 2600 ENTERPRISES INC.,Defendants-Appellants,
SHAWN C. REIMERDES and ROMAN KAZAN,Defendants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR PLAINTIFFS-APPELLEES
|Leon P. Gold
Charles S. Sims
Jon A. Baumgarten
Carla A. Miller
Matthew J. Morris
PROSKAUER ROSE LLP
New York, New York 10036
Attorneys for Plaintiffs-Appellees
FRAP 26.1 STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and to enable judges of the Court to evaluate possible disqualification or recusal, plaintiffs-appellees -- Universal City Studios, Inc.; Paramount Pictures Corporation; Metro-Goldwyn-Mayer Studios Inc.; TriStar Pictures, Inc.; Columbia Pictures Industries, Inc.; Time Warner Entertainment Company, L.P.; Disney Enterprises, Inc.; and Twentieth Century Fox Film Corporation (each a private, non-governmental party) -- certify that the following are all of the corporate parents, and other publicly held companies owning 10% or more of any plaintiff-appellee's stock:
AOL Time Warner Inc.
Bombay Hook Limited
Fox Entertainment Group, Inc.
French Street Management Inc.
News America, Incorporated
The News Corporation Limited
Viacom International, Inc.
Vivendi Universal S.A.
The Walt Disney Company
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE
A. The Film Studios' Businesses, the Advent of DVD Technology, and the Content Scramble System ("CSS")
B. The Digital Millennium Copyright Act of 1998 ("DMCA")
C. The Circumvention of CSS, and the Creation and Proliferation of DeCSS
D. Defendants Eric Corley and 2600 Enterprises, Inc., and Their Unlawful Trafficking in DeCSS and Linking Scheme Intentionally Designed to Evade the Preliminary Injunction
E. The District Court's Opinion and Injunction
SUMMARY OF ARGUMENT
I. APPLICATION OF THE TRAFFICKING PROSCRIPTIONS OF THE DMCA TO CORLEY'S CONDUCT IS SUBJECT, AT MOST, TO INTERMEDIATE SCRUTINY
A. The DMCA Is a Generally Applicable Regulation of Conduct, Not Speech
B. The DM[CA's Trafficking Proscriptions Are Not Content-Based and Do Not Single Out Speech or the Media For Differential Treatment
C. Corley's Remaining Arguments for Strict Scrutiny Are Meritless
II. THE APPLICATION OF THE TRAFFICKING PROSCRIPTIONS TO CORLEY'S CONDUCT SATISFIES INTERMEDIATE SCRUTINY
A. The Trafficking Proscriptions Further Significant Interests Unrelated to the Suppression of Expression
B. The Injunction Against Providing DeCSS Does Not Unnecessarily Restrict Expressive Activities
C. Given Corley's "Studied Effort to Defeat" the Preliminary Injunction, the Injunction Barring Him From Knowingly and Purposely Providing DeCSS by Linking Does Not Unnecessarily Restrict His Expressive Activities and Satisfies Intermediate Scrutiny
III. THE INJUNCTION AGAINST CORLEY'S INDISCRIMINATE TRAFFICKING IN DeCSS DOES NOT UNCONSTITUTIONALLY ELIMINATE FAIR USE
A. Congress Expressly Rejected a Fair Use Defense to the Ban On Providing Circumvention Devices to the Public
B. Even If Congress Had Not Expressly Rejected a Fair Use Defense to a Trafficking Claim, Corley Could Not Prevail on Any Such Defense and His "Overbreadth" Argument Is Equally Unavailing
C. The Trafficking Proscriptions Do Not Eliminate Fair Use of Films Delivered on DVD
ADDENDUM OF PERTINENT STATUTORY AND LEGISLATIVE MATERIALS
17 U.S.C. § 1201 Add-1
S. REP. No. 105-190 (1998) Add-8
H.R. CONF. REP. No. 105-796 (1998) Add-47
HOUSE COMM. ON THE JUDICIARY, 105TH CONG., 2D SESS., SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4,1998 (Comm. Print 1998) Add-58
H.R. REP. No. 105-55 1, pt. 1 (1998) Add-79
H.R. REP. No. 105-55 1, pt. 2 (1998) Add-88
Recommendation of the Register of Copyrights, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556 (Oct. 27, 2000) Add-109
144 Cong. Rec. H10615 (Statements of Rep. Barney Frank) Add-129
TABLE OF AUTHORITIES
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994)
A&MReocords, Inc. v. Napster, Inc., No. 00- 164015 16403, 2001 WL 115 03 3 (9th Cir. Feb. 12, 2001)
Anderson v. Branen, 27 F.3d 29 (2d Cir. 1994)
Anderson v. Nidorf, 26 F.3d 100 (9th Cir. 1994), cert. denied, 574 U.S. 1035 (1995)
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)
Austin v. Michigan St. Chamber of Commerce, 494 U.S. 652 (1989)
Authors League ofAm., Inc. v. Oman, 790 F.2d 220 (2d Cir. 1986)
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)
Bernstein v. United States Dept of Justice, 176 F.3d 1132 (9th Cir.), reh'g en banc granted, op. withdrawn, 192 F.3d 1308 (9th Cir. 1999)
Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996)
Blount v. Rizzi, 400 U.S. 410 (1971)
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)
Broadrick v. Oklahoma, 413 U.S. 601 (1973)
Burson v. Freeman, 504 U.S. 191 (1992)
CablelHome Communication Corp. v. Network Prods., Inc., 902 F.2d 829 (11 th Cir. 1990)
California Satellite Sys. v. Seimon, 767 F.2d 1364 (9th Cir. 1985)
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 5 69 (1994)
Chicago Lock v. Fanberg, 676 F.2d 400 (9th Cir. 1982)
Cincinnati v. Discovery Network Inc., 507 U.S. 410 (1993)
City ofErie v. Pap's A.M., 529 U.S. 277 (2000)
City of Ladue v. Gilleo, 512 U.S. 43 (1994)
Clark v. Community for Creative Non- Violence, 468 U.S. 288 (1984)
Cohen v. Cowles Media Co., 501 U.S. 663 (1991) passim
Commissioner v. Clark, 489 U.S. 726 (1989)
Cox Broad Corp. v. Cohn, 420 U.S. 469 (1975)
Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998)
Don King Prods., Inc. v. Douglas, 742 F. Supp. 778 (S.D.N.Y. 1990)
FCC v. Pacifica Found., 438 U.S. 726 (1978)
Flamm v. American Ass'n of Univ. Women, 201 F.3d 144 (2d Cir. 2000)
Florida Star v. B.J.F., 491 U.S. 524 (1989) passim
Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539 (1985)
Hill v. Colorado, 120 S. Ct. 2480 (2000) passim
Hurley v. GLIB, 515 U.S. 557 (1995)
Infinity Broad. Corp., v. Kirkwood, 150 F.3d 104 (2d Cir. 1998)
Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998)
Jewsfor Jesus, Inc. v. Jewish Community Relations Council, Inc., 968 F.2d 286 (2d Cir. 1992)
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368 (5th Cir. 1977)
Konigsberg v. State Bar, 366 U.S. 36 (1961)
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)
Longo v. United States Postal Serv., 953 F.2d 790 (2d Cir. 1992), cert. denied, 509 U.S. 904 (1993)
Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32 (1999)
Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994)
Mehta v. Surles, 905 F.2d 595 (2d Cir. 1990)
Members of the City Council v. Taxpayersfor Vincent, 466 U.S. 789 (1984)
New York v. Ferber, 458 U.S. 747 (1982)
New York Times Co. v. United States, 403 U.S. 713 (1971)
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)
Oral-B Labs., Inc. v. Mi-Lor Corp, 810 F.2d 20 (2d Cir. 1987)
Osborne v. Ohio, 495 U.S. 103 (1990)
Patsy v. Board of Regents, 457 U.S. 496 (1982)
Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973) passim
Princeton Univ. Press v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996), cert. denied, 520 U.S. 1156 (1997)
Procunier v. Martinez, 416 U.S. 396 (1974), overruled in part on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)
Reno v. ACLU, 521 U.S. 844 (1997)
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989)
San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987)
Schenck v. Pro-Choice Network, 519 U.S. 357 (1997)
Smith v. Daily Mail Pubg Co., 443 U.S. 97 (1979)
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)
Stewart v. Abend, 495 U.S. 207 (1990)
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) passim
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) passim
UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000)
United States v. Albertini, 472 U.S. 675 (1985) passim
United States v. Babwah, 972 F.2d 30 (2d Cir. 1992)
United States v. Mendelsohn, 896 F.2d 1183 (1990) passim
United States v. O'Brien, 391 U.S. 367 (1968) passim
United States v. Playboy Entm't Group, Inc., 120 S. Ct. 1878 (2000)
United States v. Quiroz, 22 F.3d 489 (2d Cir. 1994)
United States v. Scott, 187 F.3d 282 (2d Cir. 1999) passim
United States v. Spy Factory, 951 F. Supp. 450 (S.D.N.Y. 1997)
United States v. Tappin, 205 F.3d 536 (2d Cir), cert. denied, 121 S. Ct. 260 (2000)
United States v. Weslin, 156 F.3d 292 (2d Cir. 1998)
Universal Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) passim
Veilleux v. National Broad Co., 206 F.3d 92 (1 st Cir. 2000)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) passim
Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991)
Zacchini v. Scripps-Howard Broad Co., 433 U.S. 562 (1977)
2 U.S.C. § 1607
17 U.S.C. § 107
17 U.S.C. § 202
17 U.S.C. § 601
17 U.S.C. § 1201(a)
17 U.S.C. § 1201(a)(1) passim
17 U.S.C. § 120 1(a)(2) passim
17 U.S.C. § 1201(a)(3)
17 U.S.C. § 120 1(b) passim
17 U.S.C. § 120 1(b)(1)(a)
17 U.S.C. § 1201(c)(1)
17 U.S.C. § 1201(c)(4)
17 U.S.C. § 1201(d)
17 U.S.C. § 1201(e)
17 U.S.C. § 1201(f) passim
17 U.S.C. § 1201(g) passim
17 U.S.C. § 1201(h)
17 U.S.C. § 1201(i)
17 U.S.C. § 1201(j)
17 U.S.C. § 1201(j)(4)
17 U.S.C. § 1201(k)
18 U.S.C. § 112(d)
18 U.S.C. § 2512
42 U.S.C. § 2000bb-4
47 U.S.C. § 326
47 U.S.C. § 553(a)(2)
47 U.S.C. § 605(e)(4)
Pub. L. No. 106-274 (Religious Land Use and Institutionalized Persons Act of 2000)
U.C.C. § 2-314
U.C.I.T.A. § 405 (Uniform Computer Information Transaction Act)
Nimmer on Copyright, § 12A.03[C] (2000)
Milgrim on Licensing, § 5.20 (2000)
Dan L. Burk, Patenting Speech, 79 Tex. L. Rev. 99 (2000)
Timothy R. Cahn and Joshua R. Floum, Applying the Safe Distance Rule in Counterfeiting Cases: A Call for the Use of Broad Equitable Power to Prevent Black and Gray Marketeering, 8 Fordham I. P., Media & Ent. L.J. 487 (1998)
Katherine A. Moerke, Free Speech to a Machine? Encryption Software Source Code Is Not Constitutionally Protected "Speech" Under the First Amendment, 84 Minn. L. Rev. 1007 (2000)
David Nimmer, A Rifif on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 723 (2000)
Pamela Samuelson, J.H. Reichman, et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 Colum. L. Rev. 2308 (1994)
H.R. Rep. No. 105-796 (1998)
H.R. Rep. No. 105-551, pt. 1, (1998)
H.R. Rep. No. 105-551, pt. 2, (1998)
S. Rep. No. 105-190 (1998) passim
65 Fed. Reg. 64556 (Oct. 27, 2000) passim.
144 Cong. Rec. H10615 (1998)
Bruce Schneier, Publicizing Vulnerabilities, Crypto-Gram, Feb. 15, 2000
Staff ofHouse Comm. on the Judiciary, 105th Cong., 2d Sess., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998 (Comm. Print 1998)
Testimony Regarding Implementation of the December 1996 WIPO Copyright and Phonograms Treaties: Hearing on H.R. 2281 Before the House Comm. on Commerce, 105th Cong. (1998)
Testimony Regarding Comprehensive Implementation of the December 1996 WIPO Copyright and Phonograph Treaties: Hearing on H.R. 2281 Before the House Comm. on the Judiciary, 105th Cong. (1997)
ISSUES PRESENTED FOR REVIEW
1. Whether the post trial injunction issued by the district court pursuant to the trafficking proscriptions of the Digital Millennium Copyright Act, 17 U.S.C. § 120 1 (a)(2) and (b), prohibiting defendants from continuing to provide DeCSS to the public, is consistent with the First Amendment.
2. Whether the district court correctly rejected defendants' fair use defense
where Congress expressly rejected providing a fair use defense to the trafficking
cause of action under 17 U.S.C. § 1201(a)(2) and (b); and defendants
were not themselves seeking to use or make fair use of DeCSS, and could not
meet the fair use standards of 17 U.S.C. § 107.
STATEMENT OF THE CASE
Defendants-appellants Eric Corley (a/k/a Emmanuel Goldstein) and 2600 Enterprises, Inc. (collectively "Corley")1 appeal the final judgment and order of permanent injunction entered on August 17, 2000 by the Honorable Lewis A. Kaplan, after a full trial on the merits.
[Note p. 1.]
1 Corley is the sole shareholder of 2600 Enterprises, Inc., which was subsequently named as a defendant in the lawsuit. (A37) 2600 Enterprises, Inc. purportedly owns the website at issue, "www.2600.com," (the "Site") on which defendant Corley initially posted the DeCSS utility. Corley and 2600 Enterprises, Inc. also publish a magazine entitled "2600: The Hacker Quarterly" (the "Quarterly"), which Corley founded in 1984. See Universal Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 308-09 (S.D.N.Y. 2000) ("Universal").
This case presents an important test of the trafficking proscriptions of the Digital Millennium Copyright Act of 1998 ("DMCA"), 17 U.S.C. § 1201 et seq. Congress enacted the DMCA, after its ratification in 1997 of the World Intellectual Property Organization ("WIPO") Copyright Treaties, to provide new and additional protection for copyrighted works in the digital age by mandating legal protection for technological measures employed to prevent unauthorized copying and distribution of copyrighted works. The DMCA addresses the problem of instantaneous, widespread proliferation of infringing copies made possible through the Internet, and expressly authorizes injunctive relief against trafficking in, and offering to the public, devices which circumvent technological measures, such as encryption and scrambling, that copyright holders put in place to protect their works in digital form.
At trial, Plaintiffs-appellees (the "Studios") proved each of the elements of Corley's violation of 17 U.S.C. § 1201(a)(2) and (b).2 Corley does not challenge those findings or dispute on this appeal that: (1) the Content Scramble System ("CSS") is a technological measure that effectively controls access to, and copying of, the Studios' copyrighted works delivered in digital form on DVDs, within the meaning of the DMCA (Tr. 750:14-751:1);3 (2) "DeCSS" is a device that was primarily designed to decrypt CSS-encoded DVDs and copy the decrypted movie to a computer hard drive (Tr. 228:6-9, 809:18-22, 821:21-822:17, 834:5-6, 619:12-18, 748:17-19, 896:25-897:4, 898:16-22, 1099:16-18); and (3) Corley disseminated DeCSS as a willful act of "electronic civil disobedience." (Tr. 834:18-24, 847:10-16; A23 74, 361:7-21)4
[Notes pp. 2 and 3.]
2 The trafficking proscriptions apply to devices that circumvent technological measures controlling access to a work (§ 1201(a)(2)) and devices that circumvent technological measures protecting the rights of a copyright owner (§ 1201(b)). The Second Amended Complaint alleged violation of both (A44), the Studios relied on both at trial, and the district court's findings establish a violation of both (A2630-34). Corley's suggestion that additional briefing would be necessary for this Court to address § 1201(b) is baseless.
3 Throughout this brief, references to the trial transcript, which is reproduced in Volume I of the Appendix, have been denoted with the prefix "Tr." followed by the page and line number. All other citations to the Joint Appendix are represented as A###." Section 1201 and pertinent portions of legislative reports cited are reproduced in the Addendum ("Add-##").
4 Corley also admitted below and also does not dispute on appeal that his conduct did not fall within either the narrow reverse engineering or encryption research exceptions to the DMCA's trafficking proscriptions. (Tr. 838:3-8) Accordingly, Corley has abandoned his arguments on the Studios' statutory claims, and Judge Kaplan's findings regarding those claims, and his rejection of Corley's entitlement to any statutory defenses under the DMCA are conclusive. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998); Anderson v. Branen, 27 F.3d 29, 30 (2d Cir. 1994).
Rather, Corley appeals Judge Kaplan's final judgment and permanent injunction prohibiting his trafficking in an unlawful circumvention device solely on First Amendment grounds, arguing that DeCSS, the software utility that decrypts the Studios' files, is protected speech whose dissemination to the public cannot be interfered with consistently with the First Amendment. As the Studios demonstrate below -- and as Judge Kaplan correctly found in a comprehensive and well-reasoned opinion -- the trafficking proscriptions of the DMCA are aimed at conduct, not speech. Application of the DMCA to Corley's conduct of indiscriminately disseminating an unlawful circumvention device to the public does not violate the First Amendment.
A. The Film Studios' Businesses, the Advent of DVD Technology, and the Content Scramble System ("CSS").
The Studios produce, manufacture and distribute copyrightable and copyrighted material, including, specifically, full-length motion pictures. (Tr. 401:16-402:7; 404:8-11) The Studios, either directly or through affiliates, distribute motion pictures for theatrical exhibition, for television broadcast, and on portable media such as videocassette tapes and digital versatile discs ("DVDs") for distribution in the home video market. (Tr. 402:5-14)
DVDs are the most current technological advance in the home video market (Tr. 402:8-14), and can be played on standalone "DVD players," or on personal computers configured with a DVD drive and additional hardware or software devices sometimes referred to as "media players." (Tr. 25:4-11, 925:3) Because they store audiovisual information digitally, DVDs offer improved picture and sound quality over analog media such as videocassette tapes. (Tr. 240:3-12; 403:18-404:2)
When digital data is copied or transmitted, the overall quality does not degrade as in copies made from an analog source. (Tr. 404:19-22) Thus, without an effective protection system for DVDs, it would be relatively simple for pirates to make pristine, unauthorized copies. (Tr. 404:23-24) Such unauthorized copies could be stored on computer hard drives or other auxiliary storage devices such as CD-ROMs, and duplicated for unlawful sale, transfer or exchange, including by transmission over the Internet, and each of those copies would be a perfect master for further copying. (Tr. 404:23-25, 628:21-629:15)
Because of this enhanced risk of unauthorized copying and distribution of digital media, the Studios were reluctant to release valuable copyrighted films on DVDs without implementing a copy protection and access control system. (Tr. 404:16-405:5, 480:22-23) The Studios, therefore, in reliance on Congress's enactment of the anti-circumvention provisions of the DMCAI adopted such a system -- the "Contents Scramble System" ("CSS") -- to provide security for the copyrighted motion pictures stored on DVDs. (Tr. 406:13-407:7)
CSS includes elements of encryption and other security and authentication measures that require DVD player devices to operate with licensed software "player keys," which are necessary to descramble and intelligibly play back the DVD content. (Tr. 24:22-25:3; 209:20-210:13; 628:4-6) CSS has been licensed, by the DVD Copy Control Association, on a non-discriminatory basis to hundreds of DVD player manufacturers around the world, and is similarly available to others. (Tr. 409:17-25, 511:9-13) Under the CSS license, authorized DVD players are designed to decrypt, unscramble and play back the DVD movie content, but not to enable users to access that content in digital form or make digital copies of the copyrighted content. (Tr. 409:20-24; 505:4-6)
B. The Digital Millennium Copyright Act of 1998 ("DMCA")
One of the primary objectives of the DMCA was to bring United States copyright law in line with the WIPO Copyright treaties. The WIPO treaties imposed an obligation on member countries to "provide 'legal protection and effective legal remedies' against circumventing technological measures, e.g., encryption and password protection, that are used by copyright owners to protect their works from piracy . . . . See S. Rep. No. 105-190, at 8, 10- 11 (1998) (Add- 15, 17-18). Key provisions of the DMCA unambiguously prohibit trafficking in devices designed to circumvent so-called technological access control and copy control measures, like CSS. See NIMMER ON COPYRIGHT § 12A.03[C] at 12A-27 n.105 (2000). Specifically, Title 17 U.S.C. § 1201(a)(2) provides that:
[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
17 U.S.C. § 1201(a)(2) (2000).5 Section 1201(b)(1)(a) similarly prohibits trafficking in devices "for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner." The anti-trafficking provisions supplement the prohibition of circumventing in § 1201(a)(1) "[i]n order to provide meaningful protection and enforcement of the copyright owner's right to control access," copying and distribution. S. Rep. No. 105-190 at 28 (1998) (Add-35).
[Note p. 7.]
5 Section 1201 is reproduced in its entirety below at Add-1.
C. The Circumvention of CSS, and the Creation and Proliferation of DeCSS.
In or around October 1999, it was widely reported that a group of computer "hackers" in Europe had identified the encryption keys for CSS. (Tr. 619:22-621:20) These hackers -- including a Norwegian, Jon Johanssen, who testified at trial -- created and posted on the Internet an executable software program commonly referred to as "DeCSS , which, without authorization from the copyright owners, allowed motion pictures on DVDs to be decrypted and copied to a computer hard drive. (Tr. 245:11-22; 622:21-23; 822:14-17)
DeCSS, which was designed to run on the Windows(R) operating system, accomplishes this function by mimicking the software player key that a CSS-licensed DVD player would use to decrypt and unscramble the DVD content, thereby circumventing, without authorization, the protections afforded by CSS. (Tr. 214:4-5; 250:7-251:16; 628:12-629:15; 898:19-22) DeCSS performs no functions other than decrypting a DVD movie file and then copying it to the user's computer hard drive or other designated storage device. (Tr. 246:24-248:5; 619:12-16; 896:25-897:4) Although Corley continues to assert (Br. 4) that DeCSS was created for the purpose of developing an "open-source" DVD player to run on the Linux operating system, Judge Kaplan questioned the veracity of that tale and refused to so find. Universal at 311 & n.79. In fact, contrary to the claim that DeCSS was created only to help the Linux development project, Johanssen admitted at trial that he first posted DeCSS to an Internet chat room that is an open forum for DVD enthusiasts generally, not just Linux developers Jr. 632:9-14, 633:1-4), and that, "about a month" later, another visitor to that chat room told Johanssen that he had downloaded a movie from the Internet. (Tr. 629:16-633:4)
The significant harm posed to the Studios' investment in their copyrighted works by the dissemination of DeCSS (and, with it, the potential for widespread dissemination over the Internet of infringing copies of their movies) is neither exaggerated nor hypothetical. The Studios proved at trial, and Judge Kaplan expressly found, that "DeCSS is a free, effective and fast means of decrypting plaintiffs' DVDs and copying them to computer hard drives." Universal at 315. Moreover, using DeCSS in conjunction with a file compression utility known as DivX "which is [also] available over the Internet for nothing, with the investment of some time and effort, pen-nits compression of the decrypted files to sizes that readily fit on a writeable CD-ROM" or can be exchanged over the Internet via high-speed connections. Id.
D. Defendants Eric Corley and 2600 Enterprises, Inc., and Their Unlawful Trafficking in DeCSS and Linking Scheme Intentionally Designed to Evade the Preliminary Injunction.
On January 17, 2000, the Studios initiated this lawsuit for violation of the trafficking proscriptions of the DMCA against Corley -- a self-described hacker journalist - and two other individuals, each of whom had posted the DeCSS executable program on their Internet websites.6 (A5)
[Note p. 9.]
6 The other two defendants, Roman Kazan and Shawn Reimerdes, entered consent decrees with the Studios following the issuance of the preliminary injunction. Universal at 312 n.91.
On January 20, 2000, Judge Kaplan issued a preliminary injunction prohibiting the defendants from, inter alia, "posting on any Internet web site, or in any other way manufacturing, importing, or offering to the public, providing, or otherwise trafficking in DeCSS . . . ." (A2563) After the preliminary injunction issued, the Studios also were successful in their efforts, through their trade association the Motion Picture Association of America, to discourage the posting of DeCSS on the Internet by sending out numerous cease and desist letters. Universal at 312; see, e.g., A2284.
Following issuance of the preliminary injunction, Corley removed the DeCSS posting from the Site. However, contrary to Corley's contention that "[t]here is no evidence that 2600's publication of DeCSS was different or more widespread than prior or subsequent publications by others," (Br. 5), Judge Kaplan found that Corley set out on a course of conduct purposefully designed "to frustrate plaintiffs' recourse to the judicial system by making effective relief difficult or impossible," Universal at 313, "to promote the dissemination of the program in an effort to defeat effective judicial relief," id. at 341, and "to defeat the purpose of the preliminary injunction," id. at 343, by setting up a veritable DeCSS clearinghouse on the Site. (A2295, A2330)
Corley solicited other hackers to post DeCSS and then forward back to the Site the website addresses (called "URLs") for those postings. Corley even provided a convenient input box on the Site through which one could transmit to him the URL for a new posting of DeCSS so that he could link to it. (A2281)
As Judge Kaplan expressly found (Universal at 312-13):
[i]n what [Corley] termed an act of "electronic civil disobedience" . . [Corley] 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 . . . . Indeed, [the Site] carried a banner saying "Stop the MPAA" and, in 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."7
[Note p. 11.]
7 Corley's plea for others to "mirror these files" asked them to copy them onto a website of their own. (Tr. 808:17-19)
Corley admitted at trial that his linking scheme was intended specifically to provide the DeCSS program itself, not just to disseminate information about the utility. Indeed, Corley testified that when a URL was forwarded to the Site, he "initially verified the existence of the site" and that DeCSS was available there before linking to it (Tr. 851:20-852:12):
THE COURT: And it was your practice to verify the existence of the proposed mirrors before you linked to them, when you put them on your mirror list, right?
CORLEY: That's correct.
THE COURT: So the means of knowing whether the link that you posted to your mirror list took someone who clicked on that hyperlink to a page containing a whole bunch of content, some of it relating to DeCSS and others relating to God only knows what, as compared to taking you directly to the source code for DeCSS was entirely in your hands, true?
CORLEY: If we had spent more time on it, we could have refined it so it took you directly to the actual [DeCSS] files, yes . . . What we did was we took what they gave us and looked at that and said, does this go to DeCSS . . . and if it did we just put it in . . .
Yet, despite this startling trial admission, Corley (Br. 5) and his amici still attempt inexplicably to characterize his intentional, knowingly unlawful conduct, whose very purpose was to provide the DeCSS utility to the public, as "part of the coverage of the ongoing political and legal debate about copyright in the digital age."8
[Note p. 12.]
8 Judge Kaplan also expressly noted that "[n]ot surprisingly, [Corley's magazine] has included articles on such topics as how to steal an Internet domain name, access other people's e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores . . . and Federal Express." Universal at 308-09 (internal citations omitted).
E. The District Court's Opinion and Injunction.
After a six-day trial, Judge Kaplan permanently enjoined Corley from trafficking in DeCSS, finding that: (1) Corley had "clearly violated [the trafficking provision of the DMCA] by posting DeCSS to [the Site]," Universal at 319; (2) Corley's conduct was not excusable under the reverse engineering (17 U.S.C. § 1201(f)), encryption research (§ 1201(g)(4)), or security testing (§ 1201(j)) exemptions to the DMCA, id. at 319-22; and (3) Corley's "statutory fair use argument . . . [was] entirely without merit." Id. at 322-24. Judge Kaplan also held that Corley's First Amendment arguments failed because, inter alia, the trafficking proscriptions of the DMCA are content-neutral regulations -- and are, therefore, subject to no more than intermediate scrutiny under United States v. O'Brien, 391 U.S. 367 (1968) which have
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.
Universal at 329; see also id. at 328 n.191. Judge Kaplan also held that Corley's intentional linking scheme constituted "offer[ing], provid[ing] or otherwise traffick[ing] in DeCSS" within the meaning of § 1201, because
[Corley] urged others to post DeCSS in an effort to disseminate DeCSS and to inform [Corley] that they were doing so. [Corley] then linked [the 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 [the Site] that DeCSS could be had by clicking on the hyperlinks on [the Site].
Universal at 325. As Judge Kaplan recognized and held, under the
circumstances, Corley's linking scheme was tantamount to, and indistinguishable
from, the actual posting of the DeCSS utility on the Site, from which he
already had been enjoined. Universal at 324.
SUMMARY OF ARGUMENT
Judge Kaplan's final judgment was correct, and should be affirmed in its entirety by this Court. The trafficking proscriptions of the DMCA aim at conduct and are not content-based, and thus are subject at most to intermediate scrutiny. Even assuming that Corley's distribution of a decryption device implicates any expressive interest at all -- which is doubtful, since the provision of decryption tools embodied in hardware would not warrant First Amendment review and no different result should obtain because such tools may also be embodied in software, see United States v. Mendelsohn, 896 F.2d 1183, 1185 (9th Cir. 1990) -- Congress's purpose was unrelated to the suppression of speech and neither aims at speech, nor at particular viewpoints or content. The statutory text reveals, and the legislative history confirms, that Congress sought to regulate conduct, the provision of the means for copyright infringement, by analogy to statutes barring the provision of burglary tools.
The cases leading to Florida Star v. B.J.F., 491 U.S. 524 (1989), on which Corley relies, are inapposite, as those cases involve content-based laws aimed at speech. Moreover, intermediate review was selected not because Corley's purported speech was "functional" and entitled to any lesser protection, but in light of the fact that the DMCA's trafficking proscriptions are aimed at conduct, not speech, and are not content-based. Judge Kaplan did not afford inten-nediate scrutiny on any finding that the alleged speech at issue was less than "fully protected." Corley's suggestion otherwise is factually and legally incorrect.
The trafficking proscriptions and the injunction easily pass intermediate review. Corley does not dispute that an important governmental interest -- protecting digital copyrighted works from enhanced risks of piracy -- underlies the trafficking proscriptions, and absent the proscriptions, that interest would be advanced far less effectively. The statute and injunction are congruent to the benefits afforded and support that interest and the further interest of complying with the WIPO treaties requiring circumvention legislation, without "significantly restricting a substantial quantity of speech." Turner Broad Sys., Inc. v. FCC, 520 U.S. 180, 216 (1997) ("Turner II"). In view of Corley's attempts to evade the preliminary injunction and his sustained, knowing provision of DeCSS to the public, the injunction against his provision of DeCSS properly encompassed his public provision of DeCSS by any means.
Finally, the injunction does not "unconstitutionally eliminate fair use,"
and the fair use doctrine provides Corley with no defense against the injunction.
Congress rejected any fair use defense to the trafficking proscriptions;
Corley could not prevail on such a defense in any event; and Corley's submission
that the trafficking proscriptions eliminate or even significantly impair
fair use is factually preposterous. The First Amendment is not violated by
the fact that fair use of films, or plays, or artworks, is necessarily
constrained by copyright owners' decisions about how, when, and to what extent
to make their works publicly available, and there is today a far greater
scope for fair use of films, and of films on DVDs, than ever existed in the
I. APPLICATION OF THE TRAFFICKING PROSCRIPTIONS OF THE DMCA TO CORLEY'S CONDUCT IS SUBJECT, AT MOST, TO INTERMEDIATE SCRUTINY.
Judge Kaplan correctly held that none of the reasons justifying strict scrutiny apply here, as the trafficking prohibitions of the DMCA are aimed at conduct and are not content-based. This Court should affirm this holding because, here, the DMCA was applied properly to Corley's conduct and, accordingly, is subject at most to intermediate scrutiny.
[Note p. 17.]
9 In view of his contention that his First Amendment rights are infiinged, Corley is correct that he is entitled to an independent appellate review of the record bearing on the ultimate First Amendment issue. He is wrong in suggesting that standard to be identical to de novo review, or that it applies to the appeal as a whole. Bose Corp. v. Consumers Union, 466 U.S. 485, 514 n.31 (1984) ("There are, of course, many findings of fact in a defamation case that are irrelevant to the constitutional standard . . . and to which the clearly-erroneous standard of Rule 52(a) is fully applicable. Indeed, it is not actually necessary to review the 'entire' record to fulfill the function of independent appellate review on the actual-malice question; rather, only those portions of the record which relate to the actual-malice determination must be independently assessed. The independent review function is not equivalent to a de novo review. . . Veilleux v. National Broad. Co., 206 F.3d 92, 97 (1st Cir. 2000) (same).
Because Corley asserts that his expressive interests are burdened because DeCSS constitutes, in itself, protected speech, this Court must "decide at the outset the [appropriate] level of scrutiny": "not every interference with speech triggers the same degree of scrutiny under the First Amendment." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994) ("Turner I"). At one end of the spectrum, in order to prevent the government from suppressing unpopular ideas or disfavored views, courts subject to strict scrutiny content-based laws that attempt to "stifle speech on account of its message." See, e.g., United States v. Playboy Entm't Group, Inc., 120 S. Ct. 1878, 1880 (2000); Reno v. ACLU, 521 U.S. 844 (1997); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
Where, as here, a law which is aimed at conduct is asserted to have impacted speech, no more than an intermediate level of review applies. E.g., O'Brien, 391 U.S. at 377 (law against burning draft cards applied to expressive protest); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (ban on sleeping on the Mall applied to homeless protest); United States v. Albertini, 472 U.S. 675 (1985) (exclusion order applied to protestor on military base). Intermediate review is also applied to laws that are aimed at expressive activity or the media, but which are not content or viewpoint based and are justified by reasons other than the impact of speech. E.g., Turner I, 512 U.S. at 641-652, 662 and Turner II, 520 U.S. 180 (must-carry regulations, justified by need to increase multiplicity of voices and to increase competitiveness of marketplace); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (speech volume limitations).10
[Note pp. 18-19.]
10 See also Hill v. Colorado, 120 S. Ct. 2480, 2491 (2000) (time, place, and manner regulations for protests near health care facilities); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 536-537 (1987) (restriction on use of "Olympic" designation); and Procunier v. Martinez, 416 U.S. 396, 410-14 (1974) (limitations on prisoner mail), overruled inpart on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989).
Moreover, no scrutiny is required when laws aimed at conduct are applied to non-expressive conduct. Cohen v. Cowles Media Co., 501 U.S. 663, 669-70 (1991) (generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news"); Arcara v. Cloud Books, Inc., 478 U.S. 697, 704, 706 (1986) (intermediate review is required only when "it was conduct with a significant expressive element that drew the legal remedy in the first place").
The Studios argued below that this case was governed by Arcara and Cohen, and Judge Kaplan adopted a similar analysis in his decision granting the preliminary injunction (although he concluded otherwise in his final Opinion).11 There is substantial doubt that public distribution of DeCSS is an expressive act any more than unauthorized provision of a password protecting a work (which Congress proscribed, see pp.30-31 infra) would be. Because enforcement of the trafficking proscriptions against Corley plainly satisfies O'Brien, however, the Court need not decide whether no scrutiny is required as in Arcara and Cohen that is, whether Corley's public distribution of DeCSS implicates no legitimate speech interests.
[Note p. 19.]
11 Compare A2570-71 with Universal at 326-27.
If the Court does address the issue, the question would be not whether computer code can be sufficiently expressive to warrant First Amendment protection,12 but, as Judge Kaplan noted, whether application of the trafficking proscription to Corley's distribution of DeCSS on the Site implicates the First Amendment. The testimony was virtually unanimous that DeCSS is simply a tool for decrypting DVDs13 -- meaning, the Studios submit, that it has no expressive content itself, and should be subject to the same analysis as would be accorded a key, a password, or a "virtual machine." See Universal at 219 n.30 (citing authorities).14
[Notes pp. 20-21.]
12 See Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) (reversing district court decision that encryption export regulations presented no First Amendment issue, and suggesting that intermediate scrutiny would apply if plaintiff had standing to challenge revised regulations); Bernstein v. United States Dep't ofJustice, 176 F.3d 1132, 1141 (9th Cir.) (holding that encryption software in source code form can be constitutionally protected expression, but expressing no opinion with respect to object code), reh'g en banc granted, op. withdrawn, 192 F.3d 1308 (9th Cir. 1999).
13 Tr. 25:15-19 (Shamos), 228:6-9 (Stevenson), 245:3-246:1, 259:6-9 (Schumann), 619:12-18 (Johannsen), 748:17-19 (Felton), 809:18-22, 821:21-822:17, 834:5-6 (Corley), 896:25-897:4, 898:16-22 (Ramadge), 1099:16-18 (Appel); A726, 33:18-21 (Hunt Dep.).
14 See also Katherine A. Moerke, Free Speech to a Machine? Encryption Software Source Code Is Not Constitutionally Protected "Speech " Under the First Amendment, 84 MrNN. L. REV. 1007 (2000). Contradicting arguments they (and Corley) press here, Professor Pamela Samuelson, co-author of the ACLU amicus brief, and Professor J.H. Reichman, also an amicus here, have previously written while "traditional literary works" are "valued because of their expression . . . [p]rograms have almost no value to users as texts. Rather, their value lies in behavior," and conceded that "programs are, in fact, machines" that "could as easily be implemented in hardware as in software," and that programs "exist to make computers perform tasks . . . Traditional literary works, such as books, do not behave. Programs, like other machines, do." Pamela Samuelson, J.H. Reichman, et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2315-16, 2319-20 (1994). Similarly, Professor Dan L. Burk, one of the 46 amici law professors, has observed that "congressional restriction of the function of software does not offend the First Amendment, even if it constrains the expression of values embedded in the artifact." Burk, Patenting Speech, 79 TEX. L. REV. 99, 116 (2000). Any functional device is likely to have some expressive elements, but if such elements brought regulation of the devices under First Amendment scrutiny, "then it is difficult to see where the confines of the label 'speech' will be found." Id. at 112.
In comparable circumstances, in United States v. Mendelsohn, 896 F.2d 1183 1185 (9th Cir. 1990), the Ninth Circuit held that a particular computer program was a "device" prohibited by a law barring interstate transportation of gambling paraphernalia, and rejected a First Amendment challenge because the software
furnished computerized directions for functional use in an illegal activity . . . . Although a computer program under other circumstances might warrant first amendment protection [this one] does not [as it is] too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection.
Corley's unauthorized provision to the public of burglary tools, a password, or an automobile key would not implicate the First Amendment, and no different analysis should apply merely because the decrypting technology Corley provided happens to have been configured as software; indeed, Congress prohibited trafficking in decryption devices whether configured as hardware or software and, accordingly, this Court should reach the same result as the Ninth Circuit did in Mendelsohn. See Conference Committee Report, H. R. Rep. No. 105-796 at 68 (1998) (Add-53) ("copy control technologies may be rendered ineffective either by redesign of video recorders or by intervention of 'black box' devices or software 'hacks'. . . the conferees believe and intend that the term 'technology' should be read to include the software 'hacks' of this type and that such 'hacks' are equally prohibited by the general circumvention provision").
A. The DMCA Is a Generally Applicable Regulation of Conduct, Not Speech.
As the Supreme Court repeatedly has held since United States v. O'Brien, 391 U.S. 367, 377 (1968), the enforcement of a law aimed at conduct is generally subjected, at most, to inten-nediate scrutiny. Such laws "pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue." Turner I, 512 U.S. at 642. "The distinction between regulating speech and regulating conduct that has expressive components is fundamental," this Court held in United States v. Weslin, 156 F.3d 292P 297 (2d Cir. 1998),, cert. denied, 525 U.S. 1071 (1999) (citations omitted):
It is why government can validly prohibit a range of activities ranging from secondary boycotts . . . through public nudity . . . to political assassinations . . . It would be wrong to say that those activities are not or cannot be forms of expression. But the fact that they have expressive aspects does not exempt them from governmental prohibition.
Intermediate scrutiny does not presume that the speech at issue is of lesser value, or less than "fully protected." To the contrary, courts apply intermediate scrutiny on the assumption (or determination) that the speech at issue is fully protected. The Court in O'Brien assumed that "the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment," id. at 376, but held, nevertheless, that intermediate scrutiny was appropriate because "the law punished him for the 'noncommunicative impact of his conduct, and for nothing else."' See also Albertini, supra; City of Erie v. Pap's AM, 529 U.S. 277, 291 (2000) (plurality opinion) (quoting O'Brien, 391 U.S. at 382).
Distilled to its essence, Corley's argument for strict scrutiny stems from his contention that all computer software is "speech" deserving of the highest order of First Amendment protection, regardless of the character of the statute regulating or even incidentally impacting it. But even assuming arguendo that Corley's provision of DeCSS has a "significant expressive element" because it is a software tool or was "published" on a website, no more than intermediate review is required because application of the DMCA in this case involves simply the enforcement of a law regulating conduct, and a defense by a party that his expression has been thereby infringed. See, e.g., City of Erie, supra; Albertini, supra; Clark, supra.
The DMCA's trafficking proscriptions are generally applicable conduct regulations and reflect Congress's concern with conduct, not speech. They do not set out to regulate speech, and a fortiori do not single out particular categories of speech or viewpoint. Contrary to the assumption made by Corley and his amici -- who contend without authority or justification that the trafficking proscriptions are subject to strict scrutiny -- the trafficking proscriptions are conduct regulations, like the statutes upheld in O'Brien, Albertini, CCNV, and City of Erie, and are significantly less problematic than the statute at issue in Turner I and Turner II, which was a direct regulation of the media, yet, nonetheless, was subjected only to intermediate review because it was justified by reasons unrelated to the communicative impact of the speech affected. See Turner I, 512 U.S. at 642.
Unlike the statutes challenged in the cases on which Corley and his amici rely,15 which drew strict scrutiny because they directly prohibited or restricted "communications" or "disclosures" or other speech, the DMCA's trafficking proscriptions are aimed at "products" and "devices" that circumvent technological measures protecting the Studio's digital copyrighted works. Although framed with sufficient generality to encompass such devices whether embodied in hardware or software, the statutory text restricts only the conduct of publicly distributing tools that accomplish the circumvention that Congress sought to deter. In comparable circumstances, courts have upheld anti-trafficking statutes like 18 U.S.C. § 2512, which bars the distribution of "wire, oral or electronic communication intercepting devices," even though such devices arguably may have lawful uses that may further speech interests. See, e.g., United States v. Spy Factory, 951 F. Supp. 450, 474-75 (S.D.N.Y. 1997) (Sotomayor, J.); Mendelsohn, 896 F.2d at 1185-86.
[Note p. 24.]
15 See, e.g., Reno v. ACLU, 521 U.S. 844, 859-60 (1997) (criminalizing the knowing transmission of defined "comment[s], request[s], suggestion[s], proposal[s], image[s], or other communication[s]"); Florida Star v. B.J.F., 491 U.S. 524~ 526 (1989) (unlawful to "print, publish, or broadcast . . . in any instrument of mass communication" names of rape victims); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 120-23 (1989) (criminalizing "indecent communication for commercial purposes"); Blount v. Rizzi, 400 U.S. 410, 419 (1971) (authorizing Postmaster to return allegedly obscene mail).
The DMCA's legislative history confirms that Congress sought to regulate conduct, the provision of decryption devices, using the express analogy of laws barring the provision of burglary tools. See, e.g., S. Rep. No. 105-190, at 11 (1998) (Add18).16
[Note pp. 25-26.]
16 See also Staff of House Comm. on the Judiciary, 105th Cong., 2d Sess., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, (Comm. Print 1998), at 8-9 (Add-67) (")While this legislation is aimed primarily at 'black boxes' that have virtually no legitimate uses, trafficking in any product or service that meets one or more of the three points in this test could lead to liability.... 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. . . "); Conference Committee Report, H.R. Rep. No. 105-796, at 63-65 (1998) (Add-48-50) (noting that the "black box" or "anticircumvention" provisions were enacted to comply with the WIPO obligation to provide "adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights").
Congress's purpose, revealed with indisputable clarity, was to facilitate the wider distribution of creative speech, not to eliminate or reduce hann from particular viewpoints, messages, or ideas. The trafficking proscriptions were enacted to comply with the nation's obligation, under the WIPO Copyright Treaties, to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights," and thereby to provide "the legal platform for launching the global digital on-line marketplace for copyrighted works." S. Rep. No. 105-190, at 2, 5 (1998) (Add-9, 12).
Concerned that copyright owners were hesitating "to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy" (id. at 8) (Add-15), Congress sought (id. at 11) (Add- 18) to
encourage technological solutions, in general, by enforcing private parties' use of technological protection measures with legal sanctions for . . . producing and distributing products or providing services that are aimed at circumventing technological protection measures that effectively protect copyrighted works. For example, if unauthorized access to a copyrighted work is effectively prevented through use of a password, it would be a violation of this section to defeat or bypass the password and to make the means to do so, as long as the primary purpose of the means was to perform this kind of act. This is roughly analogous to making it illegal to break into a house using a tool, the primary purpose of which is to break into houses.
Legislation prohibiting circumvention devices is not unprecedented. The Copyright Act in section 1002(c) already protects sound recordings and musical works by prohibiting devices which circumvent any program or circuit that implements a serial copy management system.... The Communications Act in section 605(e)(4) prohibits devices that are 'primarily of assistance in the unauthorized decryption of satellite programming . . . .17
[Note p. 27.]
17 Congress's reference to "passwords" underlines the irrelevance of Chicago Lock v. Fanberg, 676 F.2d 400 (9th Cir. 1982), on which Corley relies (Br. 24). Chicago Lock held only that California common law imposed no confidentiality duties on locksmiths, and said nothing about whether such duties might have been imposed.
Corley's attack on the trafficking proscriptions as a violation of free speech is perverse, because the DMCA was enacted to increase the amount and variety of digital speech available to the public, not to suppress speech or speakers.18 Even assuming arguendo that any speech interests of Corley are implicated at all, "[w]here constitutionally protected interests lie on both sides of the legal equation[,] . . . there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words 'strict scrutiny.' " Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring); see also, e.g., Turner 1, 512 U.S. at 647 (even where statute assisted some speakers at expense of other speakers, only intermediate scrutiny was warranted because the statutory purpose was to "guarantee the survival of a medium that has become a vital part of the Nation's cornmunication system").
[Note p. 27.]
18 See H.R. Rep. No. 105-5 5 1, pt. 1, at 9-10 (1998) (Add-80-8 1). The Register of Copyrights recently agreed, in the rulemaking mandated by Congress concerning § 1201 (a)(1), that the DMCA was enacted to enable a much wider and much earlier dissemination of creative works than would occur if content owners could not protect their works from near-instantaneous worldwide digital dissemination, and concluded that the DMCA is serving that purpose. 65 Fed. Reg. 64556, 64568 n. 13 (Oct. 27, 2000) (Add-122).
B. The DMCA's Trafficking Proscriptions Are Not Content-Based and Do Not Single Out Speech or the Media for Differential Treatment.
The trafficking proscriptions on conduct are not content- or viewpoint-based, and leave Corley and his supporters entirely free to criticize the DMCA, Congress, the judiciary, or Hollywood. Like the law barring newspapers' publication of discriminatory help-wanted ads upheld in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 388 (1973), or laws barring breaking and entering into bookstores or libraries without permission, their justification lies in the "noncommunicative impact" of the regulated activity. O'Brien, 391 U.S. at 3 82. The trafficking proscriptions further legitimate and substantial interests in treaty compliance and preserving the incentives created by copyright protection to create and disseminate original works. Any burden on the exchange of ideas and information is incidental to, and a necessary byproduct of, the govenunent's pursuit of "a legitimate regulatory goal" unrelated to the suppression of speech or the content of the speaker's message. Turner I, 512 U.S. at 641.
"[T]he 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." Turner I, 512 U.S. at 642 (internal quotation marks and citation omitted). The "purpose, or justification" of the law is, thus, the touchstone in ascertaining content neutrality. Id. "Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech." Ward, 491 U.S. at 791.
The text and history of the DMCA's trafficking proscriptions do not single out a particular message, speaker, subject, or viewpoint for disfavored treatment, nor even single out speech. In contrast to the statute struck down in United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1885 (2000), which singled out particular content and particular speakers, the DMCA's trafficking proscriptions apply regardless of the content, subject matter, or identity of speakers, and can be used to protect any film, any book, or any musical recording. Far from reflecting any effort to "suppress, disadvantage, or impose differential burdens upon speech because of its content," Turner I, 512 U.S. at 642, they reflect a legislative judgment that all copyright owners should be able to protect their digital works from virtually instantaneous, unauthorized worldwide dissemination in an age when technological advances diminish the deterrent effect and remedial efficacy of the infringement cause of action. The restrictions are thus "justified without reference to the content" of speech. Ward, 491 U.S. at 791; see also Hill v. Colorado, supra; United States v. Weslin, supra.
Corley's contention (Br. 19) that § 1201(a)(2) "plainly categorizes banned 'technologies' including computer programs, based upon their subject matter and ideas" is frivolous. The DMCA bars trafficking in circumvention devices (regar ess of how configured) because of what they do and are suited to do, not because of their ideas; indeed, like the "black boxes," "passwords," and keys which Congress envisioned, decryption devices express no "ideas." Public provision of decryption tools is actionable regardless of purpose, just as legislatures have made it unlawful, or could, to publicly distribute wiretapping tools, burglar tools, master keys to new vehicle fleets, and combinations to identified bank vaults or safes.19
[Note p. 30.]
19 Seizing on narrow exemptions that certain interest groups lobbied for and obtained concerning encryption research, reverse engineering, and security testing, § 1201 (f, g, and k), Corley contends (Br. 20) that the existence of those exemptions somehow triggers strict scrutiny. The law is otherwise. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994), on which Corley relies, says only that exemptions "may diminish the credibility of the government's rationale for restricting speech in the first place." (Emphasis added.) Here, the narrowly tailored exemptions that Congress afforded in lieu of a broader fair use defense does not at all "diminish the credibility" of the rationale for the general trafficking prohibition Congress enacted to comply with the WIPO treaty and preserve the inducement to creation and dissemination that copyright affords.
Even if application of the statute, on occasion, may prevent persons, including the news media, from providing specific strings of numbers or software devices to the public in particular instances, that is simply a consequence of the fact that "keys" to unlock encrypted copyrighted works can be embodied not only in hardware but in software as well, and that Congress has prohibited their distribution in either form. Cf. Pittsburgh Press, supra.
"[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cohen, 501 U.S. at 669. Cohen's holding that the First Amendment did not bar an anonymous source's claim for damages flowing from breach of a newspaper's promise of confidentiality demonstrates that strict scrutiny does not apply even when, in particular cases, generally applicable laws attach liability to the public disclosure of truthful, newsworthy information. Id. at 668-72; see also Konigsberg v. State Bar, 366 U.S. 36, 50-51 (1961).
Cohen also reflects the broader principle that "the comprehensiveness of [a] statute is a virtue, not a vice, because it is evidence against there being a discriminatory governmental motive." Hill, 120 S. Ct. at 2497; cf. Turner I, 512 U.S. at 661 ("broad based" regulations "do not pose the same dangers of suppression and manipulation that [are] posed by ... more narrowly targeted regulations [aimed at particular speakers] "); Cincinnati v. Discovery Network Inc., 507 U. S. 410, 424-26 (1993). That reasoning is equally applicable here, on both sides of the DMCA: it protects copyright owners generally and prohibits public distribution of circumvention devices regardless of how or by whom it might be effected, and is not confined to hackers, the media or to anti-Hollywood websites. That two-fold generality confirrns that Congress was motivated not by hostility towar t e dissemination of information generally or a particular category of information, but instead by the "noncommunicative impact," O'Brien, 391 U.S. at 382, of the public distribution of circumvention tools.
C. Corley's Remaining Arguments for Strict Scrutiny Are Meritless.
Corley's argument that strict scrutiny is required by the line of cases culminating in Florida Star v. B.J.F., 491 U.S. 5245 533 (1989), reversing criminal punishment of or damage awards against the press for publishing "truthful information about a matter of public significance," is baseless.
First, unlike the DMCA's trafficking proscriptions, the statutes involved in those cases were content-based and squarely aimed at speech.20 That difference is dispositive: the Supreme Court squarely has held that a generally applicable law that does not single out expression is not governed by Florida Star even when in a particular case it is applied to a purported media defendant and sanctions the disclosure of truthful information about a matter of public significance. Cohen, 501 U.S. at 668-69.
[Note p. 32.]
20 Florida Star reversed a damage award imposed for violating a law barring publication of the names of rape victims; Smith v. Daily Mail Pubg Co., 443 U.S. 971, 98 (1979), overturned a conviction under a law barring publication of the names of juvenile defendants "in any newspaper"; Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 830 (1978). reversed a penalty under a law making it unlawful to "divulge" information about judicial misconduct proceedings; and Cox Broad Corp. v. Cohn, 420 U.S. 469, 471 n.1, 487 (1975), reversed a damage award under a law prohibiting publication of name of rape victim to protect victim's identity.
Second, even ignoring (as the cases do not) the character of the regulation and focusing instead on the consequence of its application, DeCSS is not "truthful information," much less "truthful information about a matter of public significance," but a piece of functional software, accord Mendelsohn, 896 F.2d at 1185, whose sole purpose is to do what Congress has rendered unlawful - namely, to decrypt without authorization DVDs that have been encrypted with CSS to protect the Studios' copyrighted films from piracy.
Corley was not sued for reporting that DeCSS had been developed and that it decrypts DVDs; he was sued for providing to the public on a sustained and continuous basis, in violation of the DMCA, the actual decryption device whose distribution Congress prohibited. The DMCA does not target disclosure of information, but the distribution of unlawful circumvention devices. The case is therefore governed not by Florida Star but rather by the rule underlying Pittsburgh Press, which upheld the constitutionality of an order enforcing a law prohibiting employers from publishing, or any other person from aiding the publication of, any ((notice or advertisement relating to 'employment' or membership which indicates any discrimination because of . . . sex." Rejecting the newspaper's First Amendment challenge, the Supreme Court held that "[t]he present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication Moreover, the order is clear and sweeps no more broadly than necessary . . . ." 413 U.S. at 390 (citations omitted). As Pittsburgh Press makes plain, the First Amendment does not bar the proscription of speech which is itself unlawful conduct that Congress may prohibit. See also Jews for Jesus, Inc. v. Jewish Community Relations Council, Inc., 968 F.2d 286, 295-96 (2d Cir. 1992) (citing various laws that "can be violated by speech or other expressive conducf' without First Amendment difficulty); Mendelsohn, 896 F.2d at 1185-86.
Corley's reliance on Florida Star also ignores the well-settled rule that the First Amendment does not prohibit the enforcement of laws protecting intellectual property -- even against a media defendant. See Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539, 555-60 (1985); Zacchini v. Scripps-Howard Broad Co., 433 U.S. 562 (1977) (rejecting First Amendment challenge to damage award against broadcasting company that violated plaintiff s rights of publicity); San Francisco Arts & Athletics, supra; Cable/Home Communication Corp. v. Network Prods., Inc., 902 34 F.2d 829 849 (1 Ith Cir. 1990).21
[Note p. 35.]
21 See also New York Times Co. v. United States, 403 U.S. 713, 731-32 n.1 (1971) (White, J., concurring) ("No one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another."); Flamm v. American Assn of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 93 (2d Cir. 1998); cf. Don King Prods., Inc. v. Douglas, 742 F. Supp. 778, 782 n.4 (S.D.N.Y. 1990).
To hold that the DMCA's trafficking proscriptions cannot be applied to software devices distributed over the Internet because any form of software is "truthful information" would turn First Amendment jurisprudence on its head, and eviscerate the conduct-targeted trafficking proscriptions.
The trafficking proscriptions are no more subject to strict scrutiny than the analogous laws, some of which were expressly cited by Congress as models for the DMCA, prohibiting the manufacture, distribution and sale of cable and satellite television "descramblers," which also defeat access control systems. See, e.g., 47 U.S.C. § 553(a)(2) (2000), 47 U.S.C. § 605(e)(4) (2000), and 18 U.S.C. § 2512 (2000). See, e.g., Cable/Home Communication Corp., 902 F.2d at 850 (promotion of statutorily-prohibited "descrambling devices" for subscription cable television programming, and sale of pirated computer chips to compromise the encryption of plaintiffs' transmissions, were not protected by the First Amendment; because defendants' "speech" "not only violated the copyright and communications laws, but also encouraged third parties to do so . . . . defendants-appellants have no protection within the First Amendment for their unlawful expression"); California Satellite Sys. v. Seimon, 767 F.2d 1364, 1367-68 (9th Cir. 1985) (no First Amendment right to pirate scrambled satellite broadcast signals); Spy Factory, supra.22
[Note p. 36.]
22 Corley's argument that software is necessarily "fully protected speech" deserving strict scrutiny regardless of the character of the regulation is at odds with the settled application of a wide range of strict liability product warranties and other regulation to software under, e.g., U.C.C. § 2-314, U.C.I.T.A. § 405, and other state laws. Unlike the expression in books and newspapers, to which such warranties and regulation cannot constitutionally be applied, see, e.g., Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991) (citing cases), courts have consistently held that software is a product subject to such warranties. See MILGRIM ON LICENSING, § 5.20 (2000) (citing U.C.I.T.A. and other authorities).
Corley's argument that there is no First Amendment justification for downgrading the protection for "functional expression" (Br. 33-40) misstates what Judge Kaplan did and attempts to raise an issue not decided below or at issue here. Judge Kaplan did not "create a new category of lesser protected speech" (Br. 33) or hold that DeCSS was "unworthy of full First Amendment protection because DeCSS is written in a computer language rather than the English language (or mathematics or iambic pentameter) allowing it to 'function"' (Br. 33). To the contrary, he agreed with Corley that "DeCSS is expressive" (Universal at 328), but concluded that because the trafficking proscriptions are aimed at conduct, and are not content-based, only intermediate review is applicable. Universal at 329-30.23
[Note pp. 36-37.]
23 Thus, the Opinion justifies the application of intermediate scrutiny before analyzing the Junger case, on which Corley relied, and addressing its discussion of functionality. Universal at 328-30.
The decision to apply intermediate scrutiny always reflects a decision (or assumption) that there is some impact on "speech," and presents the question whether that impact is nonetheless permissible. Turner I, supra; Procunier v. Martinez, supra. As Judge Kaplan correctly recognized, it is the character of the regulation, not whether as applied it impacts "speech" in a given instance (or speech of greater or lesser value), that determines whether intermediate or strict scrutiny applies. Universal at 327-28. Because Judge Kaplan undertook O'Brien analysis on the assumption that Corley's speech interests were at issue, and that protected speech was being impacted, the arguments Corley and his amici make concerning "functional" speech are simply not germane to any issue on appeal. FCC v. Pacifica Found., 438 U.S. 726, 735 (1978).
Finally, Corley's effort to root strict scrutiny in 17 U. S.C. § 1201(c)(4) is also meritless. That subsection's assurance that nothing in § 1201 "shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products" does not support Corley's claimed right to provide decryption devices to the public, much less suggest the standard of review to be applied in assessing the First Amendment defense he offers. Such provisions are used by Congress to reassure bill opponents that Congress considered the relevant interests, and intended no violation of the First Amendment.24 No court has held that such savings clauses require any different analysis than would otherwise obtain.
[Note p. 38.]
24 E.g., 2 U.S.C. § 1607 (2000) (Lobbying Disclosure Act of 1995); 18 U.S.C. § 112(d) (2000) (Act for the Protection of Foreign Officials); 42 U.S.C. § 2000bb-4 (2000) (Religious Freedom Restoration Act); 47 U.S.C. § 326 (2000) (Communications Act); Pub. L. No. 106-274, 114 Stat. 803, §§ 5, 6 (Religious Land Use and Institutionalized Persons Act of 2000).
II. THE APPLICATION OF THE TRAFFICKING PROSCRIPTIONS TO CORLEY'S CONDUCT SATISFIES INTERMEDIATE SCRUTINY.
Intennediate scrutiny entails a two-fold inquiry. First, does the law "further an important or substantial governmental interest" that is "unrelated to the suppression of free expression." Second, is the "the incidental restriction on alleged First Amendment freedoms ... no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377; United States v. Weslin, 156 F.3d at 297. The DMCA's trafficking proscriptions and Judge Kaplan's injunction against Corley's admitted trafficking in DeCSS easily meet both requirements.
A. The Trafficking Proscriptions Further Significant Interests Unrelated to the Suppression of Expression.
Corley contends (Br. 25) that the DMCA and injunction are insufficiently tailored, but accepts (Br. 22) Judge Kaplan's holding that the trafficking proscriptions further significant interests unrelated to the suppression of expression. The first part of the O'Brien standard (whether the law fin-thers a substantial governmental interest) is, therefore, not at issue.25 See Universal at 330 ("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 and from the significance to our economy of trade in copyrighted materials.").26
[Notes p. 39.]
25 E.g., United States v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) ("It is well established that 'an argument not raised on appeal is deemed abandoned"); Mehta v. Surles, 905 F.2d 595, 598 (2d Cir. 1990); United States v. Babwah, 972 F.2d 30, 34 (2d Cir. 1992).
26 The pertinent portions of each legislative report amply reflect the compelling interests underlying the trafficking proscriptions, and are reproduced in the Addendum. Hearings were conducted by the Senate Judiciary's Subcommittee on Courts and Intellectual Property, see S. Rep. No. 105-190, at 6 (Add-13) (1998); by the House Judiciary Committee's Subcommittee on Courts and Intellectual Property, see H.R. Rep. No. 105-551, pt. 1, at 12 (Add-83) (1998); and by the House Commerce Committee's Subcommittee on Telecommunications, Trade, and Consumer Protection, see H.R. Rep. No. 105-55 1, pt. 2, at 28 (Add-94) (1998). See also, e.g., 144 Cong. Rec. H10615, H10618 (Add-132) (1998) (Statement of Rep. Barney Frank) ("I want to express my satisfaction with what we worked out. As Members have mentioned, we have a tough situation here in which we want to protect intellectual property rights but not interfere with freedom of expression.").
B. The Injunction Against Providing DeCSS Does Not Unnecessarily Restrict Expressive Activities.
To satisfy O'Brien's narrow tailoring requirement, a regulation need not be the least speech-restrictive means of advancing the government's interests. Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation," and does not "burden substantially more speech than is necessary to further" that interest. Turner II, 520 U.S. at 213-14; see also id. at 215. The standard is satisfied if the "burden . . . . is congruent to the benefits it affords." Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). " 'The essence of narrow tailoring is 'focusing on the evils the [government] seeks to eliminate . . . [without] significantly restricting a substantial quantity of speech that does not create the same evils.' " Turner II, 520 U.S. at 216 (citation omitted).
The trafficking proscriptions easily meet that test. Congress's purposes plainly would be achieved "less effectively absent the regulation." The risks of widespread digital dissemination of infringing copies of digital copyrighted works are reduced if the means for circumventing the technological protections that prevent access to and copying of the unencrypted digital content on DVDs cannot be indiscriminately provided to the public. Moreover, the WIPO treaties require "legal protection and effective legal remedies," which § 1201 affords.
Indeed, as Congress expected, it took the DMCA and the technological access control measures and other protections it fosters and protects to induce various copyright owners to make their works available digitally.27 Moreover, the trafficking proscriptions are "congruent to the benefits" they afford and do not "restrict a substantial quantity of speech" because all that they prohibit is the provision of actual decryption devices to the public. They do not restrict academic research, or protest against the DMCA. Most of what they were intended to reach, and do reach, is not speech at all; and if they do reach any "speech," the trafficking proscriptions only prohibit disseminating to the public the very circumvention devices that Congress decreed may not be distributed. The trafficking proscriptions thus advance precisely the interest that the nations ratifying and implementing WIPO, including the United States, have sought to advance.
[Note p. 41.]
27 65 Fed. Reg. 64556, 64568 n.13 (Add-122).
In comparable circumstances, in United States v. Weslin, this Court easily held the Federal Access to Clinic Entrances Act ("FACE") "valid under O'Brien," noting that FACE advanced the interests underlying it more effectively than would be possible without it, while leaving "anti-abortion protestors and all other persons wishing to exercise free speech rights under the First Amendment at liberty to hold signs, pass out handbills, speak conversationally, and so forth, anywhere and anytime they choose." 156 F.3d at 298. Corley and his allies are similarly free to criticize the DMCA or Hol ywood, discuss and teach cryptography, and so forth, anywhere and anytime they choose. All that they may not do is provide to the public the particular circumvention device, DeCSS, that would defeat the access and copy controls with which the Studios have protected their works.28
[Note p. 42.]
28 Although several of Corley's amici from the field of cryptography, including cryptographer Bruce Schneier, criticize the scope of the encryption research exemption of the DMCA, § 1201(g), ironically, even Mr. Schneier has voiced strong personal opposition to the public dissemination of "exploits" (i.e., computer programs "that make use of a vulnerability to attack a system" (A1056)), like DeCSS, stating that "I believe that it is irresponsible, and possibly criminal, to distribute exploits. Reverse-engineering security systems, discovering vulnerabilities, and writing research papers about them benefits research; it makes us smarter at designing secure systems. Distributing exploits just make [sic] us more vulnerable. . . Handing computer weaponry to clueless teenagers is part of the problem." See Bruce Schneier, Publicizing Vulnerabilities, Crypto-Gram, Feb. 15, 2000 (available at http://www.counterpane.com/crypto-gram-0002.html).
As in Pittsburgh Press, the burden (if any) imposed by the DMCA's trafficking proscriptions is exactly "congruent to the benefits" it affords. Indeed, the "speech" burdened by the DMCA is limited to any decryption utility that may itself not be distributed Oust as in Pittsburgh Press the burden fell only on publishing discriminatory employment advertisements). The DMCA and Judge Kaplan's permanent injunction prohibit precisely the conduct that Congress found would be harmful and, thus, defined as unlawful: the offering to the public of decryption devices. Throughout its range, the restriction produces the precise benefit Congress sought to obtain. See Albertini, supra; Ward, supra.29
[Note p. 43.]
29 In an elliptical footnote (at 25 n.16), Corley suggests that the standard of scrutiny applicable to the injunction is not the usual O'Brien standard but the marginally heightened standard (although less than strict scrutiny) applied in Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994). Compare Schenck v. Pro-Choice Network, 519 U.S. 3 5 7, 3 72-73 (1997), and United States v. Scott, 187 F.3d 282, 287 (2d Cir. 1999) (applying Madsen standard) with Hill, 120 S. Ct. at 2488 (applying the O'Brien- Ward standard, not Madsen, in a facial challenge to a legislative enactment). Here, because paragraphs l(a) and l(b) of the Final Judgment merely track Congress's own legislative directions and, unlike the injunctions in those cases, entail no further interstitial judicial mini-legislation directed at when, how, and in what manner "speech" may be limited, only the usual O'Brien-Ward test is applicable, although the injunction easily passes the Madsen test as well. The injunctive provisions upheld in Madsen, Schenck, and Scott burdened significantly more speech than does the injunction here.
The only case Corley cites in which a law subject to O'Brien review was invalidated, Bery v. City ofNew York, 97 F.3d 689, 697 (2d Cir. 1996), is inapposite, since it involves protected activity, not conduct that may be prohibited. Review of "time, place, and manner" regulations always has entailed consideration of whether such regulations "leave open ample alternative channels for communication." See, e.g., Clark, 468 U.S. at 293. Accordingly, the Bery court, after concluding that the City's licensing regime for street artists was effectively "a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York," held that "[t]he sidewalks of the City must be available for appellants to reach their public audience," and that the "City has thus failed to meet the requirement of demonstrating alternative channels for appellants' expression." Bery, 97 F.3d at 697-98. But when O'Brien review is aimed at conduct regulations, and speech impacts are incidental (if they exist at all), the question is less pertinent, or at least different, and the touchstone, as identified in Turner and Albertini, is simply whether the governmental interest would be advanced less effectively absent the regulation. See Albertini, 472 U.S. at 688-689, see also Turner I and II, supra.
Corley complains (Br. 25) that Judge Kaplan failed "entirely to consider the availability of alternative channels of expression for DeCSS." However, "alternative channels" analysis does not apply where what is regulated is itself unlawful, such as the discriminatory help-wanted notices in Pittsburgh Press, the software program in Mendelsohn, and the trafficking in decryption devices here. Defendants in fraud cases, for example, may not challenge the application of fraud statutes to their speech because "alternative channels of expression" for their fraud are unavailable. In any event, the DMCA leaves untouched channels of communication for persons engaged in protest, encryption research, reverse engineering, and security testing. See 17 U.S.C. §§ 1201(f)(3), 1201(g)(4)(B) & 1201(j)(4). All it proscribes, and properly so, is provision of decryption devices like DeCSS to the public at large (where they would lead to great harm). See also Albertini, 472 U.S. at 688-89.
C. Given Corley's "Studied Effort to Defeat" the Preliminary Injunction, the Injunction Barring Him from Knowingly and Purposely Providing DeCSS by Linking Does Not Unnecessarily Restrict His Expressive Activities and Satisfies Intermediate Scrutiny.
Having found that Corley violated the trafficking proscriptions and made "a studied effort to defeat the purpose of the preliminary injunction," and that there was a "substantial likelihood of future violations absent injunctive relief," Universal at 343, Judge Kaplan correctly formulated a decree to prevent and restrain further violation of the Studios' rights. Accordingly, in paragraphs 1(a) and 1(b) of the Final Judgment (A2690), Judge Kaplan enjoined Corley from "offering to the public, providing, or otherwise trafficking in DeCSS" -- by any means, including the means he had been using during the six months that the preliminary injunction was in effect (i.e. providing hyperlinks to DeCSS) in a flagrant challenge to the district court's authority.
To satisfy Rule 65(d) and eliminate any contention that the prohibition against "providing" DeCSS was insufficiently specific or left Corley free to find other indirect ways of providing DeCSS to the public, Judge Kaplan, adding belt to suspenders, also expressly enjoined Corley from further distribution of DeCSS to persons accessing his site by "knowingly linking any Internet web site operated by them to any other web site containing DeCSS or knowingly maintaining any such link for the purpose of disseminating DeCSS." (A2692, paragraph 1(c))
The core of the Studios' position on Corley's linking scheme was that Corley's behavior once legal action commenced (e.g., his brazen attempts to frustrate the Studios' ability to obtain effective relief by encouraging additional DeCSS postings, and then to evade the preliminary injunction by setting up hundreds of links to DeCSS on the Site instead of keeping a "safe distance" from his enjoined conduct) was an intentional, sustained distribution of DeCSS to the public, thereby warranting further injunctive relief. That was the basis on which the permanent injunction against Corley's linking scheme was sought and imposed. Federal courts have held consistently that a defendant's failure to keep a "safe distance" from previously-enjoined conduct sufficiently warrants broader injunctive relief. See, e.g., Scott, 187 F.3d at 288-89 ("in certain situations, 'a record of abusive conduct makes a prohibition' permissible where it would not otherwise have been"); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 3 68, 390 (5th Cir. 1977) (in fashioning equitable relief against a party "who has transgressed the governing standards, a court of equity is free to proscribe activities that, standing alone, would have been unassailable"); Oral-B Labs., Inc. v. Mi-Lor Corp., 810 F.2d 20, 24 (2d Cir. 1987) ("Furthermore, a party who has once infringed a trademark may be required to suffer a position less advantageous than that of an innocent party").30
[Note pp. 46-47.]
30 See generally Timothy R. Cahn and Joshua R. Floum, Applying the Safe Distance Rule in Counterfeiting Cases: A Callfor the Use of Broad Equitable Power to Prevent Black and Gray Marketeering, 8 FORDHAM I. P., MEDIA & ENT. L.J. 487 (1998).
Contrary to the protestations of some of Corley's amici, see, e.g., Online News Association Br. at 13, Judge Kaplan made plain that he was not broadly holding "linking" unlawful. Universal at 340-41. Rather, the injunction was based soundly on the particular facts of Corley's "studied effort to defeat the purpose of the preliminary injunction" (A2684) and his admitted purpose of disseminating DeCSS. Corley's 500 links to DeCSS were not merely a by-product of an article describing a controversy, or an effort to make such an article more complete; rather, he admittedly set out to distribute DeCSS to the public, and engaged in repeated efforts to do so, providing it continuously for many months.
Barring Corley from "knowingly linking any Internet web site operated by [him] to any other web site containing DeCSS or knowingly maintaining any such link for the purpose of disseminating DeCSS" was necessary if the governmental interest underlying the trafficking proscriptions was to be served, as Judge Kaplan recognized. Unless Judge Kaplan framed the injunction to make plain to Corley that it prohibited his provision of DeCSS by any method, including by linking, its remaining provisions could not achieve the purpose for which Congress authorized injunctive relief
Corley and his amici ignore this history against which the permanent injunction was crafted and, misguidedly, complain that this appeal presents broad questions about the constitutional status of linking generally. But as the Supreme Court held in FCC v. Pacifica Foundation, 43 8 U.S. 726, 734 (1978), appellate courts "reviewD judgments, not statements in opinions . . . [and that rule] has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues." Accordingly, the focus of review here is properly on the injunction entered against Corley, not on the issues that Corley and his amici -- by grossly overreading the permanent injunction, misreading the opinion and studiously ignoring the findings and record on which it was entered -- would rather address (such as whether the district court's "test for linking liability is inadequate" or whether it "will chill significantly more speech than the defamation standard").31This case, after all, like Pacifica, is an enforcement action, not an affirmative facial challenge, much less an affirmative facial challenge to a law directed at speech. See also Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973) ("particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep").
[note p. 48.]
31 See Corley Br. 30; Online News Association Br. 14.
It is also important to note that Corley's linking is already proscribed (although not with the same unmistakable clarity) by paragraphs 1(a) and (b) of the Final Judgment. Those restrictions in the permanent injunction prohibit Corley from providing DeCSS to the public by any means. Thus, the simplest basis for upholding paragraph 1(c) -- which eliminated any doubt that the injunction barred Corley from providing DeCSS in any manner whatever, including linking -- is that it reaches no conduct (or speech) not already barred by paragraphs 1(a) and 1(b) and, therefore, satisfies the First Amendment if they do. Because paragraphs 1(a) and (b) survive O'Brien review, so too does paragraph I (c). See supra n.29 and Point IIA.
Even if the Madsen-Schenck test were applied to the injunction, every part of it is valid, including the clarification in paragraph 1(c) that Corley's knowing, intentional provision of DeCSS by linking is prohibited. Under Madsen and Schenck, an injunction directed at expressive activity is valid if it "burdens [no] more speech than necessary to serve a significant governmental interest." See Schenck, 519 U.S. at 374; Scott, 187 F.3d at 287.32 Enjoining Corley from knowingly providing the public with links on his Site to DeCSS "for the purpose of disseminating DeCSS" serves precisely the interests underlying the DMCA, which are not challenged here, and, accordingly, burdens "no more speech than necessary."
32 For the reasons relied on in Madsen, 512 U.S. at 763-64 n.2, and in Schenck, 519 U.S. at 374 n.6, the injunction is content-neutral because it "was issued not because of the content but because of [defendants'] prior unlawful conduct." See Universal at 328-329 (defendants undertook "a studied effort to defeat the purpose of the preliminary injunction").
Determining whether an injunction burdens more speech than necessary requires assessing how much speech is likely to be burdened and whether that burden is necessary in light of the circumstances presented. On the facts adduced at trial which proved that Corley engaged in a campaign of "electronic civil disobedience" by soliciting others to copy DeCSS onto their own web sites and then return to him their URLs so that he could, after carefully verifying that those sites contained the DeCSS, create a link back to DeCSS, whose presence he had induced33 -- it is plain that very little, if any, "speech" of Corley's was burdened by paragraph 1(c), and that any such burden is "necessary" within the meaning of Madsen and Scott.
[Note p. 50.]
33 See supra, at 10-12. Corley asked other hackers to publicly provide the decryption device only once he was apprehensive that the Studios would assert their rights (redoubling his efforts after the preliminary injunction). Eg., A2270-93; A2619-22, 2684-86.
No speech of Corley's is prohibited by the restriction in paragraph 1(c) against Corley's provision of DeCSS by linking. He evidenced no interest in linking to those sites other than to further distribute DeCSS to the public. Corley's testimony that he did not link to the sites whose addresses were returned to him unless they contained DeCSS (Tr. 847:28-848:7, 851:20-852:12) indisputably confirms that his interest was limited to providing DeCSS and did not extend to republishing any non-DeCSS content on those sites. (Given his plea to hackers to copy DeCSS and practice of linking back to their sites only after he ensured that they had done so, it is fair to say that any claim that he has an interest in "sharing" the speech of others would be based on smoke and mirrors.)
That the injunction is narrowly tailored to Corley's provision of DeCSS (by whatever means), without burdening more speech than necessary, is also confirmed by the fact that the injunction prohibits Corley from providing DeCSS by linking to sites containing it, but does not eliminate those sites or purport to reach them (unless they are acting "in concert" with him, in which case their provision of DeCSS is already prohibited by paragraphs I(a) and l(b)). Nor is any burden produced by "uncertainty" and resulting chilling effect; the injunction against linking makes entirely clear what Corley may not do. Cf. Scott, 187 F.3d at 287-88 (discussing the uncertainty problem in Schenck that it found not present in the order under review). Corley's own conduct brings the Scott justification squarely into play and makes plain that, under the circumstances, any marginal burden on Corley's "speech" imposed by paragraph 1(c) is no greater than necessary.34
[Note pp. 51-52.]
34 While the Studios submit that the purpose and reach of the trafficking proscriptions require no more than intermediate scrutiny, the trafficking proscriptions are narrowly tailored to serve compelling governmental interests, including interests in the wider dissemination of protected speech, and would therefore survive even strict scrutiny. See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (upholding statute on strict scrutiny); Osborne v. Ohio, 495 U.S. 103 (1990); Austin v. Michigan St. Chamber of Commerce, 494 U.S. 652 (1989). The means Congress chose were 6~precisely targeted," indeed with laser-like accuracy, at the compelling governmental interests in treaty compliance, protecting copyright incentives from the harms threatened by technological advances, and inducing reluctant copyright owners to disseminate into the marketplace in digital form their copyrighted works, while leaving the DMCA's opponents free "to express their political views." Austin, 494 U.S. at 660. On their face, and as applied here, the trafficking proscriptions prohibit nothing except the public distribution of the actual means of decryption, leaving cryptologists, academics, and everyone else free to criticize, comment, or engage in any speech about such means, or about anything else.
III. THE INJUNCTION AGAINST CORLEY'S INDISCRIMINATE TRAFFICKING IN DeCSS DOES NOT UNCONSTITUTIONALLY ELIMINATE FAIR USE.
Corley's argument (Br. 41-66) that the injunction "unconstitutionally eliminates fair use" and that the anti-circumvention and trafficking proscriptions of the DMCA should be construed to avert this purported constitutional difficulty is wrong for multiple reasons. First, Congress deliberately declined to enact a fair use defense for either the circumvention (§ 1201(a)(1)) or trafficking causes of action (§ 1201(a)(2),(b)), providing, instead, an assortment of defenses and exemptions bettertailored to the statutory plan. Second, because Corley did not seek to use DeCSS himself and distributed DeCSS to the world at large without making the slightest attempt to limit distribution to persons seeking to make what he contends would be "fair use decryption," Corley cannot defend his trafficking in DeCSS on the theory that it would facilitate fair use by others.
As Judge Kaplan recognized, Corley raises the purported "right to fair use" solely on the basis of third-party hypothetical uses, none of them serious, imminent or prevalent enough to justify striking down a statute whose application in most instances (preventing the "Napster-ization"35 of the Studio's copyrighted films) is constitutional. See Universal at 337-39. Such a third-party fair use defense to public trafficking in unlawful decryption devices, abstracted from the use of specific copyrighted works, is conceptually unintelligible, and even if it were not, Corley's indiscriminate dissemination of DeCSS to the general public renders him ineligible for any such defense.
[Note p. 53.]
35 See generally A&M Records, Inc. v Napster, Inc., No. 00- 16401, 16403, 2001 WL 115 03 3 (9th Cir. Feb. 12, 2001).
Further, given technological advances, there is today, under the DMCA, a far greater opportunity for fair use of the Studio's motion pictures and the supplementary materials distributed with them on DVDs than was available either before commercial distribution of VCRs or since. The First Amendment surely does not require a fair use defense for the indiscriminate public provision of decryption devices, least of all now, while the dystopian scenarios that so alarm amici are nowhere near becoming reality and wholly unsupported by the record. This Court should affirm Judge Kaplan's decision and reject Corley's attempt at an unnecessary "saving" construction of the statute, a construction that would nullify the protection Congress afforded in the DMCA.
A. Congress Expressly Rejected a Fair Use Defense to the Ban on Providing Circumvention Devices to the Public.
Rejecting a general fair use defense for § 1201(a) and (b), which Corley's attorneys and many of his amici urged Congress to enact, Congress instead provided seven narrower exemptions and defenses where it was possible to do so consistent with the overall purpose of the anti-circumvention and anti-trafficking statutory mandates. See 17 U.S.C. § 1201(d)-(j)36 This statutory scheme reflects a conscientious effort to balance the interests of copyright holders and others and to articulate this balance in terms appropriate to the distinctive purpose of the DMCA. Corley asserted several of these statutory exceptions, and Judge Kaplan's rejection of these defenses by Corley is unchallenged. See Universal at 319-21. But § 1201 conspicuously does not provide a "fair use" defense to trafficking in circumvention devices.37
[Notes p. 54.]
36 The Register of Copyright also recently noted in the Final Rule issued in the rulemaking proceeding required by § 1201(a)(1)(C), that "fair use, as codified in 17 U.S.C. § 107, is not a defense to the cause of action created by the anti-circumvention prohibition of section 1201." Recommendation of the Register of Copyrights, 65 Fed. Reg. 64556, 64561 (Add-115).
37 Even commentators critical of aspects of the DMCA have recognized that a fair use defense is simply not part of the statutory plan. See, e.g., David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 723 (2000).
The legislative history confirms that Congress intended that the DMCA should not detract from the fair use defense already available to copyright infringement actions, and equally that "fair use principles certainly should not be extended beyond their current fon-nulation." H.R. Rep. No. 105-55 1, pt. 2, at 25 (1998) (Add-9 1); see also S. Rep. No. 105-190, at 23-24, 30 (1998) (Add-30-31~ 37). Advocates of a general fair use defense to a violation of § 1201, including representatives of amici, presented their concerns to Congress,38 and the House Commerce Committee was particularly "concerned that marketplace realities" could lead to "less access, rather than more, to copyrighted materials," and in a worst-case scenario "the permanent encryption of all electronic copies." H.R. Rep. No., pt. 2, at 36 (Add-96). Indeed, an amendment "legislating an equivalent fair use defense for the new right to control access" was proposed. H.R. Rep. No. 105-55 1, pt. 2, Additional Views of Scott Klug and Rick Boucher, at 85-86 (Add-106-07).
[Note p. 55.]
38 See, e.g., Testimony Regarding Implementation of the December 1996 WIPO Copyright and Phonograms Treaties: Hearing on H.R. 2281 Before the House Comm. on Commerce, 105th Cong. (1998) (statement of Robert Oakley), available at http://com-notes.house.gov. (proposing, on behalf of American Library Association and others, that § 1201 should include a subsection stating that "[a]ll rights, limitations and defenses available under this title, including fair use, shall be applicable to actions arising under this chapter"); Testimony Regarding Comprehensive Implementation of the December 1996 WIPO Copyright and Phonograph Treaties: Hearing on H.R. 2281 Before the House Comm. on the Judiciary, 105th Cong. (1997) (statement of Gary J. Shapiro), available at http://www.house.gov/judiciary/4008.htm (arguing, on behalf of consumer electronics manufacturers, that Section 1201 is defective because it does not "allow 'fair use' to be invoked as a defense for a product that enables fair uses by consumers"); id. (statement of Chris Byrne), available at http://www.house.gov/judiciary/4023.htm (advocating revision of DMCA to incorporate Sony standard and link "liability for circumventing a copy protection system to an intent to infiringe" and "enable users to access and copy material for fair use").
But, as the amendment's advocates acknowledge, id., Congress rejected the pleas of 62 law professors to forego the trafficking proscriptions, H.R. Rep. No. 105-551, pt. 2, at 24 (Add-90), and also declined to enact a fair use defense. Instead, Congress adopted, inter alia, a two-year moratorium on circumvention liability under § 1201(a)(1)(A) -- but, importantly, not on trafficking liability -- and narrowly tailored exemptions from trafficking liability that would not destroy the village in order to save it. See 17 U.S.C. § 1201(a)(1)(A-D), § 1201(f-j).
Notably, the DMCA makes a firm distinction between circumvention liability -- for which Congress provided in § 1201(a)(1) the possibility of regulatory exemption of classes of works in furtherance of the interests that underlie the fair use defense to infiingement actions -- and trafficking liability under §§ 1201(a)(2) and (b), as to which no such exemption was afforded or conceptually possible. Indeed, as Congress recognized, public provision of decryption devices would eliminate precisely the security for technologically protected copyrighted works that Congress sought to foster. See 17 U.S.C. § 1201(a)(1)(E); Staff of House Comm. on the Judiciary, 105th Cong., 2d Sess., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, (Comm. Print 1998) ("Committee Print"), at 8 (Add-66).
Congress's rejection of a general fair use defense to trafficking liability is reflected in three narrow exemptions to § 1201(a)(2) for persons who develop and provide circumvention technologies for the limited purposes of reverse engineering, encryption research, and security testing. See 17 U.S.C. § 1201(f)(2), (f)(3), (g)(4), (j)(4). Congress was mindful of potentially legitimate needs to circumvent technological protections limiting access and copying, and chose to craft exemptions narrowly tailored to those needs so as to advance the DMCA's goal of inducing copyright owners to make their works available in digital form. See Committee Print at 15 (Add-73-74) (Section 1201(f)(3) accommodates sharing of circumvention tools to facilitate interoperability of newly-developed computer programs, but "[r]ecognizing . . . that making circumvention information or tools generally available would undermine the objectives of this Act, the provision imposes strict limitations.").
The Supreme Court consistently has deferred to Congress's ability to balance competing interests when technological innovations threaten to diminish the incentives fostered by the Copyright Act. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984) ("Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology."). Congress deliberately omitted a fair use defense for trafficking in circumvention devices, and the targeted exemptions that it did craft would be rendered superfluous -- in violation of basic rules of statutory construction -- by the fair use defense Corley and his amici ask the Court to enact. See, e.g., Commissioner v. Clark, 489 U.S. 726, 739 (1989) (statutory exceptions are construed narrowly to preserve the primary operation of the statute); Patsy v. Board ofRegents, 457 U.S. 496, 507-12 (1982) (rejecting proposed construction that would render other statutory provisions superfluous); United States v. Tappin, 205 F-3d 536, 540 (2d Cir.) (same), cert. denied, 121 S. Ct. 260 (2000). The statutory text, structure, and legislative history all confirm that the reference to "fair use" in § 120 1 (c)(1) is to keep causes of action for circumvention and trafficking, and defenses thereto, separate from infringement actions and defenses.
By its very nature, fair use cannot be wrenched from the infringement context and wedged into the DMCA's statutory framework: fair use is the "use of a copyrighted work," 17 U.S.C. § 107, permissible only under a "case-by-case analysis" of the use in relation to the work, Campbell v. Acuff-Rose Music, Inc., 5 10 U.S. 569, 577 n.8 (1994); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). A defendant establishes a fair use affirmative defense by proving, Campbell, 510 U.S. at 590, that his use of a particular work will be limited and unlikely to cause market harm. By contrast, the DMCA is concerned not with the copying of specific works but with the public dissemination of devices that facilitate infringement and thereby risk harm to all copyrighted works protected by a given technology. A fair use defense to trafficking in circumvention devices -- which Congress refused to enact, despite pleas to do so by, among others, Corley's attorneys and many of his amici -- would render the proscription meaningless and eviscerate the technological protections against digital copying that Congress sought to foster.
B. Even If Congress Had Not Expressly Rejected a Fair Use Defense to a Trafficking Claim, Corley Could Not Prevail on Any Such Defense and His "Overbreadth" Argument Is Equally Unavailing
Judge Kaplan's permanent injunction against Corley's trafficking in DeCSS cannot be overturried on fair use grounds not only because Congress provided no such defense, but also because, by Corley's own admission, he would not be entitled to it in any event. During the course of the proceedings below, Corley admitted that: (a) he did not own any DVDs or a DVD player; (b) he personally never used, nor sought to use, DeCSS; and (c) he never wanted or needed to decrypt any work protected with CSS. (A337-38) The only "use" Corley made of DeCSS was his sustained trafficking in the device on the Site, with no attempt to limit distribution to persons with some particularized need to use it for a non-infringing, or any other arguably permissible purpose.39
[Note p. 60.]
39 Corley posted DeCSS on his web site, and solicited others to do so as well, describing it as a free DVD decoder to enable people to copy DVDs, and with an invitation to all and sundry to download it. See A371, A2270. Even if there were a fair use defense to assert, Corley would not succeed, given Congress's categorical conclusion that public provision of decryption devices "would adversely affect the potential market" for copyrighted works. See Sony, 464 U.S. at 451; American Geophysical Union v. Texaco Inc., 60 F.3d 913, 927 n. 13 (2d Cir. 1994).
On this record, Corley cannot possibly be entitled to rely on fair use because he personally is not making any "use" of either DVDs or DeCSS. Corley's fair use mantra is an impermissible attempt to raise the purported fair use rights of a host of third-party, hypothetical users of DeCSS, in defiance of Congress's decision that consideration of such purported uses -- i.e., the doctrine of Sony, 464 U.S. at 440-42 -- "is not part of this legislation." See supra n.16.40 Federal courts routinely have rejected defendants' attempts to assert the fair use rights (whether real or hypothetical) of third parties to excuse their unlawful conduct. See, e.g., Napster, Inc., 2001 WL 115033, at *6-*12 (rejecting defendant MP3 music file sharing service's argument that its users engaged in fair use); Infinity Broad. Corp., v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (rejecting defense despite argument by defendant which retransmitted copyrighted radio broadcasts over telephone lines that end listeners engaged in transformative fair use of broadcasts); Princeton Univ. Press v. Michigan Document Servs.,99F.3d 1381, 1386 & n.2 (6th Cir. 1996) (rejecting fair use defense to college campus "copy shop" operator's unauthorized copying of "coursepacks" despite assertion that "it would be fair use for the students or professors to make their own copies"), cert. denied, 520 U.S. 1156 (1997); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1530-31 (S.D.N.Y. 1991) (same); UMG Recordings, Inc. v, MP3.com, Inc., 92 F. Supp. 2d 349, 351-53 (S.D.N.Y. 2000) (rejecting fair use defense to website operator's unauthorized copying of copyrighted CDs despite defendant's attempt to portray service as "functional equivalent" of its subscribers' fair use).
[Note p. 60.]
40 Corley adduced testimony from computer scientists about potential third-party scientific uses that conceivably might be facilitated by DeCSS. See A386-390 (testimony of Prof. Peter Ramadge) and Br. at 47-49. Such evidence cannot afford Corley a defense, however, because he did not know of these third parties or their research and made no effort to limit his distribution of DeCSS for such purposes. See A374. Corley's indiscriminate dissemination of DeCSS is in sharp contrast to the narrow exemptions for distribution of circumvention devices Congress enacted in 17 U.S.C. § 1201(f), (g), and (j).
In fact, Dr. Peter Ramadge's testimony showed that digital audiovisual content can be licensed for his research purposes, and that DeCSS is, at most, a means to obtain better quality content at a better price -- i.e., free. See A388-90. He had no knowledge of whether his corporate research sponsors approached copyright owners to obtain licenses to use digital content. A398.
For this same reason, this Court also should reject any attempt to argue that by impairing fair use of DVDs generally the DMCA's trafficking proscriptions are unconstitutionally overbroad (which Corley seems to have abandoned in any event, see Br. at 52, but which some of his amici press).41 Generally, a litigant has standing only to vindicate his own rights. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984).42 Accordingly, Corley may assert hypothetical fair uses by others only if the overbreadth doctrine were applicable here. It is not. As the Supreme Court repeatedly has cautioned, overbreadth is "strong medicine" that should be applied only "with hesitation" and as a "last resort." Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39 (1999); New York v. Ferber, 458 U.S. 747, 769 (1982); Broadrick, 413 U.S. at 613. Where statutes aimed solely at conduct -- as are § 1201(a)(2) and (b), see Point IA, supra -- are concerned, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," before the statute can be invalidated. Hill, 120 S. Ct. at 2498; Ferber, 458 U.S. at 770; Broadrick, 413 U.S. at 615. Here,, as in United Reporting, Ferber, and Authors League of Am., Inc. v. Oman, 790 F.2d 220, 225-26 (2d Cir. 1986) (Oakes, J., concurring), Congress's stated, legitimate purpose in enacting, and the permissible applications of, the DMCA's trafficking proscriptions dwarf whatever marginal applications might be imagined to impair expressive interests, and Judge Kaplan properly rejected Corley's argument that application of the DMCA to his trafficking activities is unconstitutional because of its supposed chilling effect on some theoretically permissible conduct or speech of others. Universal at 337-39.43
[Notes. pp. 62-63.]
41 See, e.g., ACM Committee Br. at 5.
42 Naturally, if a statute is facially invalid in every conceivable application, any litigant will have standing to challenge it, Taxpayers for Vincent, 466 U.S. at 803 (citing cases invalidating laws requiring speakers to obtain licenses for speech, or prohibiting specific expressions based on content), but the trafficking proscriptions here have unchallengeable constitutional application to a wide range of conduct, and are not at all analogous to the statutes subject to invalidation on that ground.
43 Among decisions rejecting overbreadth challenges in copyright-related cases, see, e.g., Anderson v. Nidorf, 26 F.3d 100, 104 (9th Cir. 1994), cert. denied, 574 U.S. 1035 (1995), and Authors League, 790 F.2d at 225-26 (Oakes, J., concurring) (agreeing that Copyright Act manufacturing clause, 17 U.S.C. § 601, did not violate plaintiffs' rights and that the court should "leave to another day the question whether it is unconstitutional as applied" to others). Among other recent cases rejecting overbreadth challenges to statutes aimed conduct, see, e.g., Osborne v. Ohio, 495 U.S. 103, 112 (1990), and Longo v. United States Postal Serv., 953 F.2d 790, 797-98 (2d Cir. 1992), vacated and remanded on other grounds, 506 U.S. 802 (1992), adhered to, 983 F.2d 9 (2d Cir. 1992), cert. denied, 509 U.S. 904 (1993).
Finally, Corley mistakenly proposes (at 63-66) that to remedy the asserted constitutional infirmity of the DMCA this Court should construe § 1201(a)(3) to mean that "the authority of the copyright owner" to decrypt an encrypted work passes to the buyer of a copy of such a work upon sale of a DVD. Judge Kaplan rightly rejected this tortured reading as "sophistry." See Universal at 317 n.137. Copyright owners would not go to the trouble of encrypting their works for use with DVD players with authorized decryption keys if the mere sale of a copy entitled the buyer to decrypt the works and copy them with impunity. The authorization by the Studios has been limited to accessing DVD content via authorized equipment, and does not extend to decryption enabling the further copying and distribution of the digital (or analog) output. Both this proposed "saving construction" and the proposed judicial imposition of a "fair use" defense would eviscerate the trafficking proscriptions and eliminate the protection for which Congress enacted them.
C. The Trafficking Proscriptions Do Not Eliminate Fair Use of Films Delivered on DVD.
Corley and his amici erroneously assert that the permanent injunction, and the DMCA's trafficking proscriptions in general, sound the death knell for fair use of copyrighted works delivered on DVDs.44 Contrary to those claims, however, the public now has a far greater body of cornmercially-released films from which to make fair use, and a greater scope for fair use of each of those films, than was ever available prior to the commercial launch of VCRs in the 1970s. In the pre-VCR era and since, the First Amendment has not been violated by the fact that the fair uses that could have been made of films always have been necessarily impacted by the Studios' decisions about how frequently, and in what cities and theaters, to release their films. The property rights that have, for example, permitted Disney to release Snow White only periodically and for limited times, and that permit both live stage and motion picture theaters to refuse to allow ticketholders to film or videotape plays and films, do not violate the First Amendment, and neither do the state law rights that, together with 17 U.S.C. § 202, permit purchasers of art objects or literary manuscripts (whether or not copyrighted) to keep them out of public view. The Studios are free to release their films exclusively for display in movie theaters, or not to release them at all. See, e.g., Stewart v. Abend, 495 U.S. 207, 228-29 (1990) ("nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright"). Studios distributed their works for decades in this manner before the advent of DVDs, or even of videocassettes, and fair uses for film criticism, comment, teaching, scholarship, and research were as common as crabgrass.
[Note p. 64.]
44 See, e.g., Corley Br. 4 1; Lessig and Benkler Br. 10; ACLU Br. 4-5, 14-15.
Contrary to Corley's assertion (Br. 41) that the permanent injunction is "unconstitutional because it eliminates fair use of DVD movies," neither the injunction nor the DMCA "eliminate fair use" of anything, much less of any copyrighted work at issue in this action.45 A movie released on DVD and in no other format46 could be the subject of innumerable uses potentially qualifying as fair use. Its plot and characters can be imitated or spoofed; its language can be quoted; and it can be shown on a DVD player in a classroom. Further, nothing in the DMCA, for example, would prohibit taking a brief snapshot from a TV or video display, that otherwise meets the statutory fair use criteria, of the content on a DVD (which would not, to be sure, be a perfect digital copy, but that is precisely the point of the trafficking proscriptions). In short, rigorous enforcement of the anti-circumvention provisions would impair, at most, the marginal quality of the image available for certain kinds of exotic fair uses. However, § 107 of the Copyright Act does not afford a "privilege" to make perfect digital copies of DVD movies; it merely provides a defense in infringement actions for certain permissible uses.47
[Notes pp. 65-66.]
45 The Register of Copyrights recently found those same "Chicken Little" alarms, which were raised by Corley's attorneys and many of his amici here, completely unwarranted: "[T]here has been no evidence submitted in this rulemaking that access to works available only in a secured format is being denied or has become prohibitively difficult. Even considering the examples presented by various commentators, they merely establish that there are works that exist only in digital form. They have not established that access controls on those works have adversely impacted their ability to make noninfringing uses, or, indeed, that access controls impede their use of those works at all . . . . In the case of motion pictures on DVDs, anyone with the proper equipment can access (view) the work. If there were evidence that technological access controls were being used to lock up material in such a way that there was effectively no means for a user wanting to make a noninfringing use to get access, it could have a substantial adverse impact on users .... Nonetheless, that evidence would have to be balanced against an author's right to grant access to a work . . . . [In any event, n]o such evidence has been presented. . . . " 65 Fed. Reg. at64567(Add-121). Indeed, rejecting the very contention pressed here as well, the Register noted that motion picture producers had been "generally unwilling to release their works in DVD forinat unless they are protected by access control measures," and that "it appears that the availability of access control measures has resulted in greater availability of these materials." 65 Fed. Reg. at 64568 n.13 (Add-122).
46 Although Corley and amici prophesy that "most works in a few short years will certainly be" available only in encryption-protected digital media, Benkler and Lessig Br. 10, Intellectual Property Law Professors Br. 18, Corley Br. 54, the record supports no such proposition about the present or the future. As Judge Kaplan noted, "all or substantially all motion pictures available on DVD are also on videotape." Universal at 337. Even David Nimmer's musings about a "pay-per-use" world are qualified by the admission that technological and economic factors make such a world "not inevitable" and in any event "decades" distant if it materializes at all. Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 740 (2000).
47 None of the cases relied upon by amici Intellectual Property Law Professors supports the proposition that a "fair user" is entitled to perfect digital copies, much less that the First Amendment would be violated if Congress provided for fair use but denied access to perfect digital copies for the small portion of fair uses that involve visual quotation.
Nothing in the DMCA or the First Amendment gives courts the duty or power,
in the abstract, to create a new fair use "right" to optimal copies
of a copyright owner's works, when Congress already has weighed the competing
interests and come to a different balance. Yet, it is only in this diminished
ease of access to such optimal copies -- anecdotally suggested here and there
in the record, with no reference to specific users or specific works -- that
Corley grounds his sweeping assertion that fair use is being "eliminated."
Even if his constitutional arguments were not otherwise defective, Corley's
claims about fair use should be rejected because of their sheer factual
inaccuracy and his failure of proof.
For the foregoing reasons, this Court should affirm the judgment of the district court in all respects.
[Leon Gold signature]
LEON P. GOLD, ESQ.
CHARLES S. SIMS, ESQ.
JON A. BAUMGARTEN, ESQ.
CARLA M. MILLER, ESQ.
MATTHEW J. MORRIS, ESQ.
PROSKAUER ROSE LLP
New York, New York 10036
Attorneys for Plaintiffs-Appellees
The undersigned attorney for appellees certifies that the foregoing brief complies with the type-volume limitation set forth in Federal Rule of Appellate Procedure 32(a)(7). The total number of words in the foregoing brief is 16,949.
[Leon Gold signature]
LEON P. GOLD, ESQ.
CHARLES S. SIMS, ESQ.
JON A. BAUMGARTEN, ESQ.
CARLA M. MILLER, ESQ.
MATTHEW J. MORRIS, ESQ.
PROSKAUER ROSE LLP
New York, New York 10036
Attorneys for Plaintiffs-Appellees
Add-1 to Add-7 -- United States Code, Title 17, Copyrights. Chapter 12.
Add-8 to Add-46 -- Senate Report 105-190, The Digtial Millennium Copyright Act.
Add-47 to Add-57 -- House Report 105-796, The Digtial Millennium Copyright Act.
Add-58 to Add-78 -- Nimmer on Copyright.
Add-79 to Add-87 -- House Report 105-551, Part 1, WIPO Copyright Treaties Implementation and Online Copyright Infringement Liability Limitation.
Add-88 to Add-108 -- House Report 105-551, Part 2, Digital Millennium Copyright Act of 1998.
Add-109 to Add-128 -- Federal Register, October 27, 2000, Library of Congress, Copyright Office, 37 CFR Part 201, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies; Final Rule.
Add-129 to Add-135 -- Congressional Record -- House, October 12, 1998, Digital Millennium Copyright Act.
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