13 May 2000: See related affidavit by Richard Meislin for the New York Times.

8 May 2000: See related declarations by Emmanuel Goldstein and Pamela Samuelson.

4 May 2000
Source: Frankfurt, Garbus, Klein & Selz and Electronic Frontier Foundation for 2600.

See plaintiffs' motion to which this brief replies: http://cryptome.org/mpaa-v-2600-nm.htm

See related files:

http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://cryptome.org/cryptout.htm#DVD-DeCSS

Reply Brief

Declarations

Harold Abelson
Andrew Appel
Chris DiBona
Bruce Fries
Martin Garbus
Martin Garbus CV
John Gilmore
Robin Gross
Lewis Kurlantzick
Eben Moglen
Matt Pavlovich
Bruce Schneier
Barbara Simons
Frank Stevenson
David S. Touretzky
David Wagner
John Young

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

Preliminary Statement

This injunction should not be expanded. In fact, it should not be kept in place one minute longer. This Court has enough information now immediately to vacate this unprecedented prior restraint. Even though defendant has not had any discovery at all, the declarations submitted in opposition to plaintiffs motion and in support of defendants' cross-motion demonstrate that plaintiff's motion must be rejected and that the existing injunction, which is based on inaccurate facts presented by plaintiffs in an air of hysteria, must be vacated. Defendants will prove the facts necessary ultimately to prevail in this case through the documents plaintiffs will produce and through the testimony of the plaintiffs. Plaintiffs waited more than five months after they learned of DeCSS to attempt to enjoin linking because they knew that such a motion would be factually and legally without basis.

Plaintiffs' motion must be denied because an injunction that barred linking would be a prior restraint, and plaintiffs know it. Defendants' cross-motion must be granted because the spectre of "copying" upon which the Court based its findings of both irreparable harm and the lower level of protection it afforded the expressive speech of DeCSS in granting the preliminary injunction was not just a creature of gross speculation, but is demonstrably nonexistent, and plaintiffs know that, too.

Defendant 2600 Enterprises, Inc. ("2600"), is a news magazine focused on the Internet and Technology, and Defendant Eric Corley a/k/a "Emmanuel Goldstein," is the publisher of 2600. These are the only remaining defendants before this Court, and they are media defendants. Universities, academics, these defendants, the press and the public are presently being subjected to exactly the type of prior restraint of the press the Supreme Court long ago rejected in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and its progeny. Plaintiffs seek to punish defendants for engaging in exactly the same linking acts as other media entities like The New York Times, San Jose Mercury News, the AP website, and numerous universities and academics.

This unprecedented prior restraint case does not involve national security, does not involve the building of atomic bombs, does not involve the protection of a defendant's rights; it does not involve picketing or boycotting; but most importantly, it does not involve copyright infringement.

Defendants submit this Memorandum of Law in opposition to Plaintiffs' motion to modify the January 20, 2000 preliminary injunction (hereinafter, the "Linking Motion" and in support of their cross-motion to vacate the existing preliminary injunction the "Cross-Motion"). By their linking motion, plaintiffs invite this Court not just to prohibit defendants from posting the utility called Decrypted Content Scrambling System ("DeCSS") on 2600.com, but to expand the existing injunction exponentially by barring 2600 from linking to any other web site that posts DeCSS, most of which contain varying quantities of protected expressive speech in addition to DeCSS. Such an unprecedented injunction constitutes an unconstitutional prior restraint and would silence an immense amount of expressive speech. Tellingly, no new facts exist to support the extraordinarily broad expansion of the existing injunction against a media defendant that has never committed an act of infringement or piracy and never contributed to anyone's infringement or piracy.

Defendants cross-move to vacate the January 20 preliminary injunction because the Court's prior decision was based on an inadequate record, consisting only of plaintiffs' inaccurate but uncontradicted assertions of fact. Plaintiffs have known for at least half a year, since before this action was commenced, of the linking by this defendant, as well as about numerous websites posting or linking to DeCSS that were created or operated by universities, academics, and other members of the press. The Court's Memorandum Opinion on the preliminary injunction did not focus on the rights of any of the media, let alone the defendants, because it relied on the wholly incorrect, speculative or misleading claims about copying presented by plaintiffs. The existing injunction severely and impermissibly restricts and chills the First Amendment rights of the defendants, of other media speakers, and of the public. Because no threat of copying or copyright infringement actually exists, there is no irreparable harm and the preliminary injunction must be vacated. Moreover, the Court's decision reflects an incorrect and unconstitutional reading of the anti-circumvention provisions, and in particular, Section 1201 ("Section 1201") of the Digital Millennium amendment to the Copyright Act, 17 U.S.C. §§ 1201 et seq, and thereby improperly limits rights granted to the public under the Copyright Act.

The plaintiff knows that this action presents issues of first impression: the constitutionality, interpretation, meaning and scope of Section 1201's anti-circumvention provisions. Plaintiff's complaint also raises for the first time the conflict between the First Amendment and the rights of a classic First Amendment media speaker like 2600, and Section 1201's potentially severe restrictions on speech posed by plaintiffs' Linking Motion. Plaintiffs must acknowledge that if the Linking Motion wins, The New York Times, Village Voice, The San Jose Mercury News and the AP website will be barred from linking too. To suggest that 2600.com cannot refer to a university, academic, cryptographer, library, or CNN.com is preposterous.

Defendants can post and link. It is unfortunate that no evidence countering plaintiff's inaccurate submissions was before the Court last January. That is no longer the case; sufficient evidence now exists to permit the Court to consider these fsimportant and novel First Amendment and statutory questions and vacate the preliminary injunction.

BACKGROUND

A. Procedural History of this and Related CSS/DeCSS Actions

This events underlying this and other actions regarding DeCSS began to unfold in early October, 1999 when a 16-year-old Norwegian teenager, Jon Johansen, posted the utility and made it generally available on the Internet in order to help in the efforts to "add DVD support to Linux." Declaration of Chris DiBona ("DiBona Decl."), ¶ 5, Exhibit B. Shortly before Christmas, 1999, the DVD Copy Control Association ("DVD CCA"), the 1999 successor to two prior DVD consortiums (dating back to 1996), formed to license the Contents Scramble System ("CSS") used to prohibit access to the material on DVDs, commenced a litigation against 21 named and 500 "John Doe" defendants. The DVD CCA's state court action alleged that disclosing, distributing, posting, discussing and linking to DeCSS violated the California Trade Secrets statute. By Order dated January 21, 2000, the California Court granted in part the DVD CCA's motion for a preliminary injunction; it enjoined posting DeCSS, but it:

refuse[d] to issue an injunction against linking to other websites which contain the protected materials as such an order is overbroad and extremely burdensome. Links to other websites are the mainstay of the Internet and indispensable to its convenient access to the vast world of information. A website owner cannot be held responsible for all of the content of the sites to which it provides links. Further, an order prohibiting linking to websites with prohibited information is not necessary since the Court has enjoined the posting of the information in the first instance.

DVD CCA v. McLaughlin, et al. (Case No. CV 786804) (Order dated January 20, 2000); http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000120-pi-order.html.

Various entities representing the interests of the Movie Industry (DVD CCA, MPAA, and these plaintiffs) have filed three DeCSS-related law suits thus far. On January 14, 2000, the plaintiffs filed the complaint in this action and moved by order to show cause for a preliminary injunction. Defendants were to be served by late January 14, 2000; 2600 was not named as a defendant in the January 14, 2000 complaint. Defendant Goldstein had until 10:00 a.m. on January 19 to file responsive papers. Unfortunately, the California attorneys who took on Goldstein's defense on a pro bono basis were unable to appear before the Court timely to file declarations refuting the facts asserted in the plaintiffs' papers. They raised the basic constitutional issues on January 20, 2000; but after oral argument on the application, the Court signed the preliminary injunction.

Plaintiffs first raised the issue of linking at that Hearing, suggesting in a way to mislead the Court that the Court extend the injunction to linking on the ground that "[t]o us it makes little difference whether you're providing it with the first set of clicks or the second. You're still providing it and the language of the statute is ‘providing.'" (January 20 Hearing transcript at 84:6-9). The Court correctly declined this invitation:

I think that that [the linking] issue is sufficiently different from what I've heard that I'm not prepared to rule on it now. I will deal with this in the form, if you wish to press it, of an application to modify and we'll give the defendants an opportunity to respond to it , and well deal with it in a more measured way.

(January 20 Hearing transcript at 85:3-8).

Plaintiffs waited until April 4, 2000—following defendants' present counsel's entrance in case on March 20, 2000 and the addition of 2600Magazine as a defendant—to make such an Application.

In the interim, plaintiffs undertook a campaign of writing cease and desist letters (but no new law suits) to web sites posting DeCSS that were listed on and/or linked-to from the 2600.com web site, but did not start any new lawsuits.

B. 2600 Magazine and the 2600.com

Website Media defendant 2600 Magazine was founded in 1984. Today, the Quarterly and its related 2600.com website is one the leading journals addressing difficult issues about the modern technological era. See Declaration of Emmanuel Goldstein ("Goldstein Dec."), ¶ 4. Over the years, 2600 has retained its independent, inquiring focus, but has grown to over 60,000 readers; the website receives up to 50,000 unique hits per day and anticipates more than 5,000,000 for the year 2000. Goldstein Decl., ¶¶ 5, 20.

2600 is now recognized as one of the leading voices from the perspective of the hardcore Internet user and adventurer and those concerned with problems connected to the wired age. Id., ¶ 6, 7, and Exhibit B. Goldstein has not only become a regular expert guest on established network shows such as "Nightline" and "60 Minutes," but he has also testified before Congress on issues of computers and security. Id., ¶ 9. Additionally, 2600 runs the well-attended HOPE conferences about the computer/Internet world. Id., ¶ 10.

2600 covered the story of the break of CSS and posting of DeCSS just as it covered other stories relevant to its mixed audience of college professors, intelligence agencies, and teenagers. 2600 did not and has never condoned or encouraged piracy of DVDs; it reported on the story. In keeping with its journalistic standards, 2600 also posted DeCSS and relevant links in 2600.com, so its readers could look at the source code and reviews and participate in relevant discussion about DeCSS and what it meant. 2600 is a magazine: its function is to report news and make information available to its readers. As part of its role as an organ of the media, 2600 took the same actions as other media outlets such as the The San Jose Mercury News, CNN.com, Wired, and ZD Net, which all at one time also linked directly to DeCSS. Goldstein Decl., ¶ 21; Declaration of Martin Garbus ("Garbus Decl."), Exhibit F.

Following the preliminary injunction order, 2600 took down its DeCSS posting. It also covered the story that 2600's publisher and editor had been sued over the content posted on its website, and that the website had been gagged from uttering certain speech by the imposition of the preliminary injunction. It also posted a list of mirrors—websites which contained, among other items, DeCSS or links to DeCSS. Goldstein., Exhibit D. Some of these sites are academic or scholarly (see Declaration of Andrew Appel ("Appel Decl."), ¶ 14; many were created and sent to the list by individuals who believe passionately in freedom of speech on the Internet and who were outraged by the plaintiff's attack on DeCSS and the scheming of those who would examine, study or even use DeCSS. The fact that some of these overtly political statements are uncomplimentary to plaintiffs, or even rude, does not diminish these statements as speech. Seegenerally Goldstein Decl., Exhibit E (samples of past and present mirror sites, including members of the media, University sites, and political statements).

All of the websites on the 2600.com list of mirrors would be impacted—silenced and chilled—by the expanded injunction sought by the Linking Motion. 2600 readers would be denied access to all of the expressive, political speech on those websites.

C. Section 1201 of the Copyright.

The legislative history of Chapter 12 of the Copyright Act (the Digital Millennium Copyright Act) is long, contradictory, and convoluted. This applies as well to the history and debate concerning the Section 1201 anti-circumvention provisions that "effectively control" unauthorized access to copyrighted works in digital format, and prohibit trafficking in technologies primarily designed to circumvent access control or copyright protection measures. See 17 U.S.C.A. § 1201 (West Supp. 1999). As observed by Professor Samuelson:

The Senate Judiciary Committee, the House Commerce Committee, representatives of library and educational institutions, Silicon Valley businesses, and other stakeholders in the digital economy, as well as various public interest groups and copyright scholars recognized that the proposed prohibitions were too broad, would upset established copyright principles, and would adversely impact the interests of both the high-technology sector and the public. The input of these groups resulted in the introduction of several specific exemptions and other qualifications to this otherwise overbroad law. Unfortunately, this patch-making process did no allow for a comprehensive or elegant articulation of the interplay between the anti-circumvention regulations and the copyright infringement laws that they were designed to support.

Fundamental to this case is the fact that in enacting these provisions, Congress did not ban the technology of circumvention. Rather, Congress understood Section 1201 narrowly to prohibit the methods and means of piracy while preserving both the right and the ability of the public to engage in uses traditionally privileged by copyright law, including the exercise of fair use fair.

Indeed, the Copyright Act guarantees fair use, and prevents copyright owners from interfering with display of lawfully purchased copies of protected works. See 17 U.S.C. §§ 107, 109(c) (1994). Similarly, § 1201(c)(1) specifies that "Nothing in this Section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." More importantly, Chapter 12 specifically guarantees the public's First Amendment rights:

1203(b) POWERS OF THE COURT -- In action brought under subsection (a) [violation of 1201 or 1201], the court -- (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the First Amendment to the Constitution.

Congress expressly disclaimed any intention that Section 1201's anti-circumvention measures, which were aimed against piracy, would empower copyright holders to use these new provisions against piracy to deprive copyright users of their ability to engage in fair use copying and unrestricted lawful display.

D. Hyperlinking, the Internet, and Other Relevant Technological Issues

Plaintiffs sued in this action to stop media defendants from making the DeCSS utility, which negates CSS, available to their readers and viewers on the 2600.com website. In the instant motion, plaintiffs seek to prohibit 2600.com from "linking" to websites that make DeCSS available to its readers. Such sites are often called "mirrors" because they mirror on additional different servers a program originally available to be downloaded on one server. A link or hyperlink is created by adding certain instructions and symbols to an Internet address or URL. Thus, for example, "http://www.2600.com" is the address of defendant's website; "<href=htp:http://www.2600.com>" is that same address with instructions that cause the URL to be perceived by the reader's browser program as a hyperlink. What this means is that the reader's computer programs will determine how (or if) the link appears. If the address appears as a link and the reader double-clicks the highlighted word with her mouse, the readers web- browser program will send the read to the linked website. See Declaration of Eben Moglen ("Moglen Decl.), ¶ 8. At that point, the linked-to website will determine what the reader sees; two readers using the same hyperlink will often be shown different things by the linked-to website. Moglen Decl. ¶ 9.

One of the features of the web-browser and related software used by most of the people on the Internet today is that these programs identify a URL and automatically convert the web address into a hyperlink by adding the few necessary words and symbols. Moglen Decl., ¶ 10; see also Supplemental Declaration of Robert W. Schumann, ¶ 5. Thus, even were 2600.com to strip its list of mirrors of the additional programming language that cause it to be a link, i.e., it stops linking, the URL would still appear on many readers' computer screens as a link. Such readers could include one of the plaintiffs—or even the Court—reviewing the 2600.com website. The DeCSS mirror site would appear to this hypothetical reader as a link, and would function as a link, even though 2600.com would have taken every possible step it could to ensure that the URL was not a link.

Additionally, on the Internet, the party creating a hyperlink has no control over what content is located on the linked-to site, or what happens to the reader after he/she clicks on the hyperlink. See, Moglen Decl., ¶¶ 8-9.

Another misconception that is relevant to this case is the technical effectiveness of DeCSS in copying DVDs. A DVD contains a huge amount of date—up to 8.5 gigabytes (8,500,000,000). Declaration of John Gilmore ("Gilmore Decl."), ¶ 21. It has repeatedly been suggested recently by Disney CEO Michael Eisner in a letter to all Disney employees that DeCSS permits the amateur "pirate" to "steal" the data off of a DVD and instant e-mail the movie around the country. See Declaration of Martin Garbus ("Garbus Decl."), Exhibit G (letter from Michael Eisner to Disney employees.) Not only would such a huge file be too large for all except the biggest home computer hard drives (which commonly come in 5, 10, or up to 20 gigabyte sizes), Gilmore Decl., ¶ 21, but uploading a single gigabyte on a 56k modem would take about 40 hours, so uploading an entire DVD movie would take many days. Id.

E. DVDs, CSS and DeCSS And The Myth of Piracy

When the movie industry contemplated the shift to a new digital media, they also decided to protect against access to the data on the media. They did so in the expectation of immense profits: today, more than six months after DeCSS was released, the movie industry sells over 1,000,000 DVD's per week. Complaint, ¶ 10. Thus the movie industry adopted CSS, a system that performed several functions: it locked the disc until CSS authenticated that it was being played on a CSS-equipped machine, and it decrypted the scrambled files containing the movie. Declaration of Matt Pavlovich ("Pavlovich Decl."), ¶ 10. CSS, however, is very poorly protected, a 1996 vintage system with a very weak 40-bit key. Declaration of Bruce Schneier ("Schneier Decl."), ¶ 4; Declaration of David Wagner ("Wagner Decl."), ¶¶ 10-11. The movie industry knew CSS would be cracked; it was only a matter of when.

The actual function of CSS is a more complicated story. Because of its inherent weakness, the Movie Industry knew it could not stop commercial piracy. And, of course, it didn't. As early as 1997, the MPAA -- the organization which represents the interests of the Movie Industry -- was aware through its membership in the International Intellectual Property Alliance ("IIPA") that commercial piracy of DVD's was big and getting bigger. See Declaration of Frank Stevenson ("Stevenson Decl."), ¶ 23 and Exhibit B. In 1998, professional mass-production equipment was found in Hong Kong, and more than 40,000 pirated DVDs seized in a series of cards in Taiwan. Id. These commercially pirated DVDs sell for a few dollars (Stevenson Decl., ¶ 23) and are perfect, bit-by-bit copies of the original, complete with CSS (Declaration of Matt Pavlovich ("Pavlovich Decl."), ¶ 9). DeCSS, which did not exist until October, 1999, of course has nothing to do with this commercial piracy (Wagner Decl. ¶ 18); wide-spread commercially relevant copying of DVDs has existed for years before DeCSS.

CSS is irrelevant to commercial piracy. Instead, for example, it prevents consumers who have purchased DVDs -- that is, paid the requisite royalties and received authorization to play and view the movie on the DVD -- from, among other things: (1) playing a DVD on any DVD Player (hardware, i.e., home player, or software or computer-based player) that is not made by a manufacturer that has licensed CSS; (2) playing a DVD bought in any other of the seven (7) geographic regions into which the DVD consortium has broken the world other than the region in which she bought her DVD; and (3) skipping commercials at the start of a DVD of its maker decides you must view them. CSS also completely prohibits the possibility of making fair use of any material on a DVD. See, e.g., Pavlovich Decl., ¶ 6.4.

DeCSS, on the other hand, acts to permit a consumer to engage all of the above legal and protected activities. See, e.g., Gilmore Decl., ¶¶ 9-14 (detailed examples of legal uses enabled by DECSS); Stevenson Decl., ¶ 29. Moreover, DeCSS was an essential part of the international project to reverse engineer a DVD player so as to build a DVD player for Linux and other open- source operating systems or platforms. (Pavlovich Decl., ¶¶ 2-6; DiBona Decl., ¶ 5; Gilmore Decl., ¶¶ 15-16.) Indeed, in an interview posted January 31, 2000 on CNN.com. Jon Johansen, the 16-year-old Norwegian teen who first posted DeCSS and was part of the reverse engineering group that created it, stated that DeCSS evolved out of his involvement with DVD: "we decided that it was time to add DVD support to Linux -- and, of course, to other operating systems, such as FreeBSD." DiBona Decl., Exhibit B.

In this regard, it is important to realize that DeCSS is not simply an exercise in reverse engineering CSS (which is permissible); it is a vital step in the larger project of creating an open- source CSS-equipped DVD player to permit interoperability between CSS-equipped DVDs and open-source operating systems like Linux. This type of player, and the project to develop it, is necessary because CSS is proprietary and closed-source. Thus it is essentially incompatible with an open-source platform, or the philosophy behind such platforms. Pavlovich Decl., ¶ 5.

What DeCSS does not do, however, is permit commercially viable piracy, let along amateur copying of DVDs that is feasible on any realistic analysis. Indeed, no one is aware of DeCSS's being used for any copying at all. See DiBona Decl., ¶¶ 7-8 (Internet survey with 2,000 responses revealed no copying and only two instances of incomplete playing); Stevenson Decl., ¶ 21; Pavlovich Decl., ¶ 14. First, the amount of data stored on a DVD is huge (approximately 5-8 gigabytes). If one copies a DVD movie onto a hard drive, one not only takes up large amounts of space, but the only way the copy can be sold is to sell the computer. Moreover, no recordable media now exists that can store and playback a DVD in the same fashion as the DVD itself. DVD files decrypted by DeCSS will not fit on any currently available DVD recordable media. See, e.g., Gilmore Decl., ¶ 22; Stevenson Decl., ¶ 22, Pavlovich Decl., ¶ 11. Portable hard drives are expensive and cumbersome; CDs cannot hold the data, nor can Jazz drives. Stevenson Decl., ¶ 26. DAT tapes can hold the date but do not permit navigation within the movie - the tape must be rewound or played forward and there is degradation of quality and other technical problems. Id.

Most importantly, the notion that DVDs can be e-mailed instantly anywhere is completely false. The files are so huge that, using a 56k modem, uploading a DVD would take more than 200 hours; using a T1 line cuts the time down, but to a still absurd six-plus hours. Gilmore Decl., ¶ 21; Stevenson Decl., ¶ 27. For a detailed examination of the difficulties faced by our expert in using DeCSS to view DVDs, see DiBona Decl. ¶¶ 9-21.

Finally, common sense must be recognized. DeCSS would be complicated and expensive to use to copy DVDs in the DVD format -- about $5,000.00 for a DVD burner and $25-50 per blank disk. Pavlovich Decl., ¶ 11. Not only is this far more costly than buying a $15 DVD, but it will not work. And since the presumed market for sale of pirated DVDs is people with DVD players, it is absurd to assume that this market will buy expensive ancillary hard drives or lower- quality data storage media like Jazz or DAT drives instead of renting a DVD for $3.

ARGUMENT

I. Plaintiffs Cannot Make the Requisite Showing of Irreparable Harm Necessary To Support the Linking Motion or To Justify the Existing Preliminary Injunction

Standard for the Granting of a Preliminary Injunction.

It is black letter law that for a Preliminary Injunction to issue, the party seeking it must show: "(a) irreparable harm, and (b) either (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them fair grounds for litigation and a balance of hardships tipping decidedly in its favor." Richard Feiner & Co. v. Turner Ent. Co., MGM/UA, 98 F.3d 33, 34 (2d Cir. 1996).

Plaintiffs can meet neither of these conjunctive requirements. There is no irreparable harm; it is not alleged in the Second Amended Complaint; only that legal damages are inadequate. The Court in its Memorandum Opinion, however, found irreparable harm based on the potential DeCSS posed for copying and copyright infringement. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 215 (S.D.N.Y. 2000). This was incorrect for several reasons. First, since copyright infringement is not addressed by Section 1201 and not here alleged, there can be no presumption of irreparable harm. See, e.g., Realworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wa. Jan. 18, 2000). If there is no copying, there is no harm, and if there is no harm at all, let alone irreparable harm, there can be no injunction. And even plaintiffs admit that they have no evidence whatsoever of copying. Declaration of Robin Gross ("Gross Decl."), ¶ 4. The absence of any harm is a distinction that matters.

Given the absence of any technical or commercial possibility of copying, the mere assertion that copying might occur cannot provide the necessary element of irreparable harm. Plaintiffs' irreparable harm claim relies solely on the spectrum of horrors arising from DeCSS- enabled piracy. These, as plaintiffs must know, are false. Plaintiff argues that in the absence of a preliminary injunction DVD is dead as a media. In fact, the financial harm claims by the industry from DeCSS is highly speculative.

Indeed, as noted supra, despite the easy availability of DeCSS for six months, more than 1,000,000 are sold per week. Professor Lewis Kurlantzick, whose seminal article "The Audio Home Recording Act of 1992 and the Formation of Copyright Policy" in The Journal of the Copyright Society of the USA is cited favorably by the Ninth Circuit in Recording Industry Ass'n of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072, 1074 n.1 (9th Cir. 1999), (noting that whether or not piracy actually causes the entertainment industry significant financial harm is a matter of considerable debate), confirms the lack of economic basis to use DeCSS for copying. Based on the cost and time of copying DVDs with DeCSS (assuming it is possible at all), Professor Kurlantzick opined that the rational consumer would not copy a DVD but buy it. Declaration of Lewis Kurlantzick ("Kurlantzick Decl."), ¶¶ 3-4.

In fact, the relevant analysis for preliminary injunctions is what injury "will result to the moving party" should the injunction not issue. Importantly, the analysis is in the imperative-- will result, not may result. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562-68 (1976) (requiring showing that the absence of the injunction will "surely result in direct, immediate or irreparable damage"). Thus, plaintiffs have to offer more than self-confessed speculation, already proven to be incorrect, that some copying may result from posting or linking to sites that post DeCSS, and that either the existing or proposed injunction will stop the copying. They must come forward with credible, factual evidence that actual and substantial harm will actually result and that the requested relief will actually remedy that harm. Plaintiffs have failed to do so.

Second, with respect to the Linking Motion, plaintiffs' delay destroys any inference of harm based on their speculative assertions that copying may take place. Plaintiffs knew about the linked websites when they moved by the expedited made of Order to Show cause for the Preliminary Injunction, and even tried casually to persuade this Court to "toss in" hyperlinking as being just another kind of "providing" prohibited by § 1201(a)(2). This Court invited an application to expand the Preliminary Injunction; Plaintiffs let two months pass before filing the Linking Motion, a total of six months since they knew of the practice. This unhurried pace is entirely at odds with a claim of irreparable harm.

By its very nature, a preliminary injunction is a specific equitable remedy and, thus, must be framed in such a way as to strike a delicate balance between competing interests . By necessity, the scope of the injunction must be drawn by reference to the facts of the individual case, reflecting a careful balancing of the equities. . . . The question then becomes whether plaintiff has delayed in seeking a preliminary injunction in a manner that undercuts the threat of irreparable harm."

Moreover, Joseph Scott Company v. Scott Swimming Pools, Inc., 764 F.2d 62, 67 (2d Cir. 1985): "the presumption of irreparable harm may be ‘neutralized' where the plaintiff does not promptly seek a preliminary injunction." Bear U.S.A., Inc. v. A.J. Sheepskin & Leather Outerwear, Inc., 909 F. Supp. 896, 909-10 (S.D.N.Y. 1995).

Third, it is obvious that enjoining a single party is futile. Even if the links are enjoined, plaintiffs cannot seek to enjoin defendants from listing the mirror sites by URL, but without the HTML language that creates a link. The futility of the "relief" sought by plaintiffs is underscored by the fact that even if 2600.com stripped the HTML language from a linked-to URL, most readers' web browsers would recognize a web address and automatically convert it into a link. Moglen Decl. ¶ 8. Obviously, the court cannot be sure that any less injury "will result," if the chances for enforcement of the injunction are purely speculative. And the resulting injury will not be significantly diminished by the issuance of an injunction that is ineffectual or incapable of being enforced. The only non-futile remedy would be to enjoin all sites posting DeCSS, which is simply not possible, if only because a number the mirror sites are overseas and beyond the enforceable reach of the US Copyright Act. "[T]he essence of equity jurisdiction has been the power to grant relief no broader than necessary to cure the effects of the harm caused by the violation." Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir. 1997). The injunction framed must be "narrowly tailored to fit specific legal violations . . . [and] should not impose unnecessary burdens on lawful activity." Waldman Publ. Corp. and Playmore, Inc. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994).

A. Section 1201 Cannot be used in furtherance of CSS' Impermissible Goal of Destroying the Right of Fair Use

As the Court noted in the Memorandum Opinion, fair use has a constitutional magnitude: "[To the extent there is any tension between free speech and protection of copyright, the Court has found it to be accommodated fully by traditional fair use doctrine, with expression prohibited by the Copyright Act and not within the fair use exception considered unprotected by the First Amendment. Universal, 82 F. Supp. 2d at 220 (citing, Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 551 (1985); Wainwright Securities,Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977)), cert. denied; 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978) ("Conflicts between interests protected by the first amendment and the copyright laws thus far have been resolved by application of the fair use doctrine."); Ninon Keizai Shimbun Inc. v. Comline Business Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999).) CSS, which plaintiffs would have codified into law through its cramped reading of Section 1201, completely blocks access to the copyrighted material on a DVD, and prevents thereby any possibility that the right of fair use can be exercised with respect to that material. Congress did not anticipate or permit this.

An individual who may be prohibited from circumventing to gain access to a work for improper purposes, nonetheless may do so in order to make fair use of a work which he or she has lawfully acquired. H.R. Rep. No. 105-551, pt. 1, at *18 (1998); accord S. Rep. No. 105-190, at *26 (1998) ("This paragraph does not apply to the subsequent actions of a person once he or she has obtained authorized access even if such actions involve circumvention"). Thus, for example, where a copy control technology is employed to prevent the unauthorized reproduction of a work, the circumvention of that technology for fair use would not be actionable under Section 1201, but any infringing use of the work would be actionable under the Copyright Act.

In this regard, it is imperative to explode the favored analogy urged by plaintiffs, the MPAA and the DVD CCA, that no one has the right to break into a bookstore to make fair use of a book. In reality, the effect of CSS on fair use is to permit a publisher to prohibit a customer who has purchased one of its books from reading the work, except in a room constructed by a licensed builder, or under the lamp built by a licensed manufacturer.

Congress certainly did not intend to destroy the traditional rights of copyright users by barring technologies that facilitate circumvention for lawful fair-use purposes. The result of such a regime -- fair use is permitted, but only by those skilled enough to make their own DeCSS -- is obvious. As Barbara Simons, the president of the Association for Computing Machinery opined:

Our scientific and technological success as a nation has relied heavily on the "fair use" of copyrighted materials. For this reason, and because of our interest in and concern about education, ACM has strongly supported consumers' rights under the Copyright Act, and in particular, the fair use right. It is clear to me that if such rights are not preserved as essential, if the plaintiffs in this case are permitted to use Section 1201 to ban any utility that negates CSS and permits noninfringing access to copyrighted works, essential rights such as fair use will be limited to a small technological elite. If such utilities are not generally available, then only persons technologically skilled enough to create the requisite tool will be able to exercise their fair use rights; the rest of the world will not. That cannot be the intention of Section 1201.

Simons Decl., ¶ 17.

Similarly, Congress never intended Section 1201's restrictions on devices and technologies to be read independently of the scope of Section 1201's narrow prohibitions on circumvention itself. Senator Ashcroft, who drafted Section 1201's savings clause for legitimate devices, pointedly summarized the substance and importance of this understanding to securing passage of Section 1201.

In discussing the anti-circumvention portion of the legislation, I think it is worth emphasizing that I could agree to support the bill's approach of outlawing certain devices because I was repeatedly assured that the device prohibitions are aimed at so-called ‘black boxes' and not at legitimate consumer electronics and computer products that have substantial non-infringing uses. [N]either section 1201(a)(2) nor section 1201(b) should be read as outlawing any device with substantial non-infringing uses. . . .

144 Cong. Rec. S4890 (daily ed. May 14, 1998) (statement of Senator Ashcroft).

Another important fair use right is that of open academic discourse and research. As noted by such distinguished Professors as Dr. Barbara Simons at UC Berkeley, Dr. Andrew Appel at Princeton, and Dr. David Touretzky at Carnegie Mellon, discussion and examination of the source code for utilities like DeCSS are essential to the standard and accepted practice of making fair use of copyrighted texts. See generally, Simons Decl., Appel Decl., Touretzky Decl. and Stevenson Decl. Scholarly research cannot, as plaintiffs appear willing to accept, be made subservient to a requirement of licensing, as plaintiffs would have it.

Finally, the right of fair use is affirmatively guaranteed by §1201(c). See, generally, Samuelson Decl., ¶¶ 11-13. Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. "Under this title" means the entire section 1201 of the Copyright Act, including 1201(a)(2). Because fair use is a right and a limitation on the breadth of the exclusivity granted creators by Copyright Act, Congress intended that anti-circumvention provisions of 1201(a)(2) be balanced and circumscribed by the existing right of consumers of intellectual property (e.g., everyone except the holder of a copyright) to the fair use of copyrighted material. As noted above, this Court has identified the Constitutional role played by fair use in resolving tension between the First Amendment and the Copyright Act. Here, we balance freedom of speech and non-circumvention rather than free speech against copying. No infringement is even alleged, and there is no idea/expression dichotomy to bridge the gap between freedom of speech and protected expression.

In the context of §1201, fair use must be identified as an affirmative right, as a sword and not just as a shield against infringement. This is so, in part, because it plays so important a role in balancing the conflict between the First Amendment and the Copyright Act. But logic also dictates this result, despite some activity unrelated to infringing conduct. Historically, fair use has been raised to defend against claims of illegal use or copying; now, it must be employed affirmatively, to preserve fair use in a non-copying situation. Section 1201 is the first amendment to the Copyright Act that bars something other than copying.

B. DeCSS is Permitted by §1201(f) as a Necessary Tool in The Reverse Engineering of an Open-Source DVD Player

DeCSS was a necessary step in creating an open-source DVD player. See Pavlovich Decl., ¶ 2; DiBona Decl.; ¶ 4. Section 1201(f) states:

(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent that any such acts of identification and analysis do not constitute infringement under this title.

Based on the declarations submitted by defendants in this proceeding, it is now uncontrovertable that DeCSS was a crucial step in the larger project of creating an open-source DVD player by reverse engineering a CSS-equipped DVD player. See Pavlovich Decl., ¶ 2; DiBona Decl., ¶ 4. The open-source DVD project, LiVid, used DeCSS in its ongoing efforts to create a player to run on Linux and other open-source systems as BSD and Free BSD. See Pavlovich Decl., ¶ 4. Such a program would be interoperable with not just CSS, but an operating system. It would also be usable on non-open-source systems such as Sun's Solaris®, Apple OSX and Windows 98, 2000 and NT. Id. On proprietary systems, the LiVid (or similar) open- source DVD player would interact with that system's platform and CSS to permit more efficient use of the systems capabilities, even to the point of saving some consumers from purchasing a new DVD home player or computer. See Pavlovich Decl., ¶¶ 4-6; 14.

C. Section 1201 Does Not Bar DeCSS Because The DVD Owner Has Been Authorized Access to the copyrighted material on a DVD

Although the defendants are not moving to dismiss the complaint, it is legally deficient because plaintiffs have failed to plead a cause of action under Section 1201. Plaintiffs charge that by placing DeCSS on the 2600.com web site, defendant has provided technology that circumvents a technological measure affecting authorized access to a work protected under Section 1201. Thus media defendants like 2600, and other potential media defendants that post or link to DeCSS, like the New York Times, The San Jose Mercury News, the Associated Press Business wire, all of which posted or linked to DeCSS (Garbus Decl., Exhibit C), could all be found to have violated the statute by reporting on DeCSS, or as plaintiffs phrase it, "providing" DeCSS, if the link to a DeCSS mirror. Academic or library web sites that post or link to DeCSS, like Professor Touretzky's Carnegie Mellon-based DeCSS Gallery and Cryptome.com, are equally vulnerable. This is not what is intended by Section 1201.

Section 1201(a)(2)'s prohibition on circumvention applies only when a technological measure which "requires . . . the authority of the copyright owner, to gain access to the work" is avoided "without the authority of the copyright owner" in order to "pirate." The prohibition does not apply to the subsequent actions of a person once he or she has obtained authorized access to copy of a work, even if such actions involve circumvention of additional forms of technological protection measures. Nor can they, since §1201(a)(1), when it becomes operative in October 2000, will include specific exemptions from anti-circumvention rules.

DeCSS does not circumvent a technological measure, however, because users of DeCSS at all times have "the authority of the copyright owner." To "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, "without the authority of the copyright owners." §1201(a)(3)(A). Consumers are given authority to decrypt or descramble Plaintiff's copyrighted work when they buy the DVD; the plaintiffs have already profited from that purchase regardless of whether the consumer uses a licensed or an alternative player; the authority to decrypt must be equally valid regardless of the DVD player the consumer chooses to use. Nothing in the Copyright Act requires that the DVD player be authorized by the copyright owner. This authorization must be given at sale of the DVD because it can only come from the copyright owner, since the manufacturer of the DVD player is not the copyright holder and DVD cannot be granted with the purchase of a machine or program.

Moreover, the existence of encryption of the audiovisual work, and the key to decrypt that work, are only "physical" barriers to private use once the consumer has lawfully obtained physical access to the work, and do not constitute legally significant barriers to access once authorization has been obtained by purchasing a DVD. Subsequent means of decryption do not form a part of the "access" contemplated by §1201(a)(2).

The official comments to Section 1201 explicitly state that Congress did not intend the Act to prohibit circumvention where an individual has lawfully obtained copyrighted material.

Subsection (a) applies when a person has not obtained authorized access to a copy . . . Paragraph (a)(1) does not apply to the subsequent actions of a person once he or she has obtained authorized access to copy of a work . . ., even if such actions involve circumvention of additional forms of technological protection measures.

H.Rep. 105-551, part I, at 18 (emphasis added); in accord S. Rep. 105-190, at 26.

D. CSS Does Not "Effectively Control Access" to the Copyrighted Material on a DVD

Congress was also adamant that Section 1201 not allow copyright owners to dictate technical standards to device manufacturers. Thus, a measure is also not effective if it is employed to require device manufacturers to make design decisions at the command of copyright holders. CSS is not "effective" by these measures. CSS ties the grant of a key not to the purchase of a legitimate copy of a work, but to the purchase of a licensed player. This improper scheme allows copyright owners to restrict statutorily privileged display of legitimately purchased copies of CSS-encoded DVD's by limiting playback to licensed and approved devices by preventing DVD owners from fast-forwarding through ads, and by imposing a regime of "region coding." See Gilmore Decl., ¶¶ 9-11. It also permits copyright owners to control the design of playback devices by attaching conditions to the grant of licenses to device manufacturers. Copyright holders have wrongfully used this power to prohibit manufacturers from creating devices with digital outputs, recording, universal navigation capabilities to engage in lawful fair-use copying. For all this, CSS is absolutely useless against piracy. A pirate does not need a key to make a perfect copy of a CSS-encrypted DVD. Stevenson Decl., ¶¶ 21-30. Gilmore Decl., ¶¶ 21-25. And because every licensed player has the keys to unlock any DVD, a licensed player is not capable of rejecting a pirated copy with CSS.

Since CSS, in the ordinary course of its operation, permits access irrespective of the copyright owner's authorization, it is ineffective under Section 1201's literal terms. Instead, CSS destroys fair use and subjects consumers to serious inconveniences. It is difficult to conceive of a technology more at odds with the express intentions of Congress and the balanced purpose of Section 1201. At least one of Section 1201's framers foresaw that copyright owners would attempt to use its provisions to suppress technologies like DeCSS that employ circumvention to facilitate lawful display and fair use copying by owners of legitimate copies of copyrighted works.

If history is a guide, however, someone may yet try to use this bill as a basis for initiating litigation to stop legitimate new products from coming to market. I have sought to make clear that any such effort to use the courts to block the introduction of new technology should be bound to fail. As my colleagues may recall, this wouldn't be the first time someone has tried to stop the advance of new technology. I think it useful to recall what the supreme court had to say in ruling for consumers and against two movie studios in [Sony]: ‘One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.'

144 Cong. Rec. S4890 (daily ed. May 14, 1998) (statement of Senator Ashcroft).

E. Section 1201 Cannot Protect CSS Without Conflicting With Other Provisions of The Copyright Act

As noted, supra, a consumer who has lawfully purchased a DVD is authorized to enjoy its contents, including, if necessary, to employ decryption technology to play the copyrighted material they have purchased. This interpretation is also obvious based on the First Sale Doctrine: "The whole point of the first sale doctrine that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution" (Quality King v. L'Anza Research, 523 U.S. 135, 139, 118 S.Ct. 1125, 1134 (1998)). Once sold, the purchaser owns the right to use that copy of the material, to sell it, or transfer it onto any system he or she wishes (Quality King, supra; Burke & Van Heusen Inc. v. Arrow Drug, Inc., 233 F. Supp 881, 882 (D.C.Pa. 1964) (copyright owner loses right to control use of material once sold); and see generally U.S. v. Wise, 550 F.2d 1180 (1977); 17 U.S.C §§109(a), (c)).

II. Section 1201 Is Unconstitutional On Its Face, As Written And As Interpreted Because The Preliminary Injunction Granted And The Expanded Injunction Violate The Media Defendants' First Amendment Rights

This Court must consider and weigh the gravity of the constitutional injury caused by the injunction and require the plaintiffs to assert a more fundamental interest than false, unfounded, inaccurate speculations about copying that plaintiffs' themselves have acknowledge has never occurred. The plaintiffs have been claiming since October 1999 that the sky would fall on the DVD industry. It has not. Moreover, the Court must consider the grave constitutional harm and extraordinary chilling effect posed by an injunction with such severe First Amendment consequences. It is a prior restraint on the freedom of expression on the defendants and the entire media, which strikes at the very heart of the First Amendment. "In determining the extent of the [First Amendment's] constitutional protection, it has generally, if not universally, been considered that the chief purpose of the guaranty is to prevent previous restraints on publication." Near v. Minnesota, 283 U.S. 697, 713 (1930). See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) ("[P]rior restraints upon speech and publication are the most serious and least tolerable infringement on First Amendment rights."); New York Times v. United States (1969) 403 U.S. 713, 726-27, 730 (stating that prior restraints are permissible only "at time of war" [Brennan, J. concurring], or when there exists a "direct, immediate and irreparable damage to our nation or its people." [Stewart J.concurring]). The Supreme Court has recognized that expression via the Internet is at the core of protected speech.

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . We agree that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

Reno v. ACLU, 521 U.S. 844, 870 (1997).

Moreover, plaintiffs seek to restrict the press's right to free speech precisely because of the communicative impact of the expression. The California Court in the DVD CCA case "refuse[d] to issue an injunction against linking to other websites which contain the protected materials as such an order is overbroad and extremely burdensome." DVD CCA v. McLaughlin, et al. No Court in this country that we know of has ever enjoined linking against the press. In fact, this Court, so far as we know, was the first Court to enjoin the press from posting expressive speech under the Copyright Act. Unfortunately, the Court relied on inaccurate facts given by the plaintiff, and referred to national security criminal cases which have absolutely nothing to do with this case. Of course injunctions can issue in copyright cases. But that is not this case. The preliminary injunction already issued and the expanded injunction plaintiffs now seek is thus a restraint on "pure speech," that is, speech not incidental to conduct. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558, 570 (White, J. concurring).

DeCSS is expressive speech. See generally, Harold Abelson Decl., Andrew Appel Decl., and David Touretsky Decl. (professors and research scientists explain why source code is expressive speech). The Court assumed this status for DeCSS for the purposes of considering the initial preliminary injunction motion but assigned at a low level of protection. However, as Chief Judge Martin firmly held in the recent Sixth Circuit decision. Junger v. Daley, 2000 U.S. App. LEXIS 6161 *10 (6th Cir. April 4, 2000) (which cited Professor Abelson and Appel's affidavits submitted in that case explaining nature and expressive speech of source code): "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment." The Court there explained, after observing that "[t]he Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll." Id. at *9 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557, 569 (1995)):

The functional capabilities of source code, and particularly those of encryption source code, should be considered when analyzing the governmental interest in regulating the exchange of this form of speech. . . . . In Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994), the Supreme Court noted that although an asserted governmental interest may be important, when the government defends restrictions on speech "it must do more than simply 'posit the existence of the disease sought to be cured.'" Id. (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."

Junger, at *10.

In this regard, it is important to give great weight to defendants' overwhelming proof of the absence of even a remote possibility that DeCSS will enable or encourage any piracy, or even viable amateur piracy, and that the focus of those discussing, down-loading, and mirroring DeCSS had nothing to do with copying. This Court improperly gave little weight to the expressive quality of the speech here at issue, having concluded based on the inaccurate and/or misleading evidence then before it that making DeCSS available on the Internet was part of an improper course of conduct; the copyright infringement that was never alleged by plaintiffs. Additionally, linking is permitted under the Copyright Act. See Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. Mar. 27, 2000).

More than just expressive speech is threatened by both the preliminary injunction and the Linking Motion. If linking is barred, the prior restraint imposed on 2600.com will chill the speech of other members of the media, because they too will face liability merely for referring readers to locations where more information may be acquired. Plaintiffs' linking motion seeks to silence a news organization and deprive the public of connections that direct users to other sites (which will almost always contain expressive speech in addition to DeCSS), but which also contain either other links which lead to the DeCSS program, or the DeCSS program itself. Indeed, the scope of the injunction potentially encompasses The New York Times, San Jose Mercury News and many other news groups. See Garbus Decl., Exhibit F.

A. Both the Existing and the Expanded Preliminary Injunctions Constitute Unconstitutional and Improper Prior Restraints On Free Speech

Any injunction that prohibited linking would constitute a gross prior restraint of speech. A "prior restraint" is any governmental action, including a court injunction, that prevents speech from reaching the public. It is the most dangerous imposition on individuals' freedom of speech. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) ("Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights"). See also Bantam Books, 372 U.S. at 70 ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity"). Therefore, request for such a restraint "comes to [the] Court bearing a heavy presumption against its constitutional validity." New York Times Co. v. United States, 403 U.S. 713, 714 (1971). Even cases involving actionable speech do not support a preliminary injunction restraining the speech before it reaches its intended audience.

In the instant case, plaintiffs seek to quash a media defendant's right to link to DeCSS and preserve the existing injunction on the ground that it violates a provision of the Copyright Act. They do not allege infringement and have admitted that no copying has occurred because of DeCSS. Gross Decl, ¶ 5. Planitiffs have declined to narrowly tailor its requested relief. As such, plaintiff cannot overcome the presumption that the requested prior restraint is unconstitutional. The proper course for plaintiffs is to sue each web site that posts DeCSS, if they can ever credibly claim that it will lead to copying. Instead, they seek to expand what is already a classic prior restraint.

The Supreme Court has repeatedly held that

[a statute which] makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969).

The First Amendment's "chief purpose" is "to prevent previous restraints upon publication," the "essence of censorship." Near v. Minnesota, 283 U.S. 697, 713 (1931). See also New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

The First Amendment's ban on prior restraints may be overridden only where "[publication] will surely result in direct, immediate, and irreparable damage to our nation or its people," New York Times, 403 U.S. at 730 (Stewart, J., joined by White, J., concurring), or where there is "governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea." Id. at 726-27 (Brennan, J., concurring); see also WXYZ, Inc. v. Hand, 658 F.2d 420, 426 (6th Cir. 1981). The government's (or in this case, the plaintiffs') burden is "formidable," and indeed "almost insuperable." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 592-94 (1976) (Brennan, J., joined by Stewart, J., and Marshall, J., concurring). National security, on the one hand, and a claim arising under the Copyright Act that does not even allege infringement, on the other, have a different balancing standard. The protection of copyright uses a different standard than the protection of information that could lead to the destruction of the country. Irreplaceable harm from nuclear weapons, or invasion or release of national security information is different than future, false speculation or damage.

Plaintiffs do not contend that any harm has actually befallen them. Instead, they proffer misleading assertions of impending harm that is easily and completely refuted by the actual technical and commercial realities of DVD piracy. This Court has a right to ask what will happen in the next day that has not happened in the past six months, even though DeCSS has been widely available and was downloaded by tens of thousands of people. A prior restraint of expressive speech, especially the extremely broad restraint of expression sought in the Linking Motion, based on this sort of standardless, speculative claim of harm, fails to satisfy the standard set forth in New York Times and poses the grave dangers of a censorship system that the Supreme Court has repeatedly condemned. See, e.g., Niemotko v. Maryland, 340 U.S. 268 (1951).

Our democratic society values and diligently protects its hard fought freedoms. Both the United States and New York Constitutions guarantee the freedom to speak freely, to generate discourse and to advance innovation through the exchange of ideas. The U.S. Supreme Court has held that the Internet is one of the most egalitarian mediums invented and one of the greatest democratic tools for the 21st century. Reno v. ACLU, 521 U.S. 844, 851 (1997). The Internet is "the most participatory form of mass speech yet developed - [and] is entitled to the highest protection from governmental intrusion." Id. at 883, 884. The Supreme Court recognized in Reno that the Internet is a "unique and wholly new medium of worldwide human communication" which disseminates "content as diverse as human thought." Id. at 852. Recognizing the need for the highest level of protection from governmental restraints on speech, the Supreme Court likened expression in on-line chat rooms to town criers with voices resonating far from the soap box, and likened expression in newsgroups having characteristics similar to traditional street pamphleteers. Id. at 870.

B. Section 1201 is Unconstitutionally Vague and Overbroad

A government regulation that restricts expression based on its content or subject matter is unconstitutional, absent a compelling governmental interest and narrow tailoring of means to end. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the First Amendment means that government has no power to restrict expression because of its . . . subject matter, or its content."). The Supreme Court makes plain that "[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment. We have long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983) (citations omitted).

Plaintiff's interpretation of Section 1201, as adopted by the Court for the limited purpose of analyzing and granting plaintiff's preliminary injunction, is unconstitutionally vague and overbroad. It gives the public no coherent guidance as to what speech may be barred and, particularly in connection with the linking motion, is so vague and all-embracing as to prohibit an immense amount of protected speech along with the single utterance (DeCSS) plaintiffs claim they wish to silence. A vague regulation that impacts speech "raises special First Amendment concerns because of its obvious chilling effect on free speech." Reno, 521 U.S. at 871-72.

Speech-restrictive regulations that fail to accomplish their stated purpose to any significant degree cannot be found to be narrowly tailored. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43 (1994).

[T]he Court long has recognized that by limiting the availability of particular means of communication, content-neutral restrictions can significantly impair the ability of individuals to communicate their views to others . . . To ensure the widest possible dissemination of information . . . the First Amendment prohibits not only content-based restrictions that censor particular points of view, but also content-neutral restrictions that unduly constrict the opportunities for free expression.

City of Ladue, 512 U.S. at 55 n.13 (quoting Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 57-58 (1987)) (citations omitted); see also Reno v. ACLU, 521 U.S. at 880.

Indeed, the practical effect of the limitations on communication that arise from the Court's application of Section 1201, a vaguely worded and overbroad prohibition against "offer[ing] to the public, provid[ing] or otherwise traffic[ing] in any technology. . . ," is to eliminate the Internet as a medium of communication for encryption software, including source code. This directly offends the First Amendment. In American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), the court observed that "Internet technology gives speakers potential of a wider audience" and applied strict scrutiny. The Supreme Court, in striking down the statute at issue in Reno, found that the statute's restrictions would block certain speech in all of cyberspace. As applied in this case, Section 1201 is even more suspect because the content of speech being regulated is so vaguely described. For example, only programs that do certain illegal things can be "prohibited," yet the preliminary injunction silenced defendants without proof (or a decision) about what that limiting language means, and how the section applies to CSS and DeCSS.

CONCLUSION

Anyone of the plaintiffs can "link." They are all media plaintiffs. They exist, through their various entities in nearly every aspect of the media. The New York Times, The San Jose Mercury News, The Associated Press Website, text book and magazine publishers, libraries and index systems have a perfect right to transfer viewers, readers and listeners to sites that contain media information including DeCSS references. So, too, can these media defendants. Based upon the foregoing, 2600 and Emmanuel Goldstein respectfully urge that the Court deny the motion to expand with attorneys fees and costs for the defendants, and the preliminary injunction vacated.

Dated: New York, New York May 3, 2000

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.

By:______________________________

Martin Garbus (MG 6261)
Edward Hernstadt (EH-9569)
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendants Eric Corley a/k/a Emmanuel Goldstein and 2600 Enterprises, Inc.

TABLE OF CONTENTS

Preliminary Statement 1

BACKGROUND 4

A. Procedural History of this and Related CSS/DeCSS Actions 4

B. 2600 Magazine and the 2600.com Website 6

C. Section 1201 of the Copyright 8

D. Hyperlinking, the Internet, and Other Relevant Technological Issues 9

E. DVDs, CSS and DeCSS And The Myth of Piracy 11

ARGUMENT 14

I. Plaintiffs Cannot Make the Requisite Showing of Irreparable Harm Necessary To Support the Linking Motion or To Justify the Existing Preliminary Injunction 14

A. Section 1201 Cannot be used in furtherance of CSS' Impermissible Goal of Destroying the Right of Fair Use 18

B. DeCSS is Permitted by §1201(f) as a Necessary Tool in The Reverse Engineering of an Open-Source DVD Player 22

C. Section 1201 Does Not Bar DeCSS Because The DVD Owner Has Been Authorized Access to the copyrighted materialon a DVD 23

D. CSS Does Not "Effectively Control Access" to the Copyrighted 25

E. Section 1201 Cannot Protect CSS Without Conflicting With Other Provisions of The Copyright Act 26

II. Section 1201 Is Unconstitutional On Its Face, As Written And As Interpreted Because The Preliminary Injunction Granted And The Expanded Injunction Violate The Media Defendants' First Amendment Rights 27

A. Both the Existing and the Expanded Preliminary Injunctions Constitute Unconstitutional and Improper Prior Restraints On Free Speech 30

B. Section 1201 is Unconstitutionally Vague and Overbroad 33

CONCLUSION 35

TABLE OF AUTHORITIES

Cases

American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) 35

Bantam Books, 372 U.S. at 70 31

Bear U.S.A., Inc. v. A.J. Sheepskin & Leather Outerwear, Inc., 909 F. Supp. 896 (S.D.N.Y. 1995) 17

Burke & Van Heusen Inc. v. Arrow Drug, Inc., 233 F. Supp 881 (D.C.Pa. 1964) 27

City of Ladue v. Gilleo, 512 U.S. 43 (1994) 34

DVD CCA v. McLaughlin, et al. (Case No. CV 786804) (Order dated January 20, 2000) 5, 28

Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402 (2d Cir. 1997) 18

Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 18

Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557 (1995) 29

Joseph Scott Company v. Scott Swimming Pools, Inc., 764 F.2d 62 (2d Cir. 1985) 17

Junger v. Daley, 2000 U.S. App. LEXIS 6161 *10 (6th Cir. April 4, 2000) 29

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983) 34

Near v. Minnesota, 283 U.S. 697 (1930) 27

Near v. Minnesota, 283 U.S. 697 (1931) 32

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) 16, 31

New York Times Co. v. United States, 403 U.S. 713 (1971) 27, 31

Niemotko v. Maryland, 340 U.S. 268 (1951) 33

Ninon Keizai Shimbun Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999) 18

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) 33

Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) 33

Quality King v. L'Anza Research, 523 U.S. 135, 118 S.Ct. 1125 (1998) 27

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) 29

Realworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wa. Jan. 18, 2000) 15

Recording Industry Ass'n of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (9th Cir. 1999) 16

Reno v. ACLU, 521 U.S. 844 (1997) 28, 33, 34

Richard Feiner & Co. v. Turner Ent. Co., MGM/UA, 98 F.3d 33 (2d Cir. 1996) 15

Sweezy v. New Hampshire, 354 U.S. 234 (1957) 30

Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553(C.D. Cal. Mar. 27, 2000) 30

U.S. v. Wise, 550 F.2d 1180 (1977) 27

Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000) 15, 18

Wainwright Securities,Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977)), cert. denied; 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978) 18

Waldman Publ. Corp. and Playmore, Inc. v. Landoll, Inc., 43 F.3d 775 (2d Cir. 1994) 18

WXYZ, Inc. v. Hand, 658 F.2d 420 (6th Cir. 1981) 32

Statutes

17 U.S.C §109 27

17 U.S.C. §§ 107, 109(c) (1994) 9

17 U.S.C. §§ 1201 3, 15, 17, 21, 23, 24, 35

Other Authorities

144 Cong. Rec. H7099 (daily ed. Aug. 4, 1998) (statement of Rep. Dingell) 20

1996 WL 48968 (Statement of Barbara A. Munder, Senior Vice President, McGraw Hill, on behalf of the Information Industry Association Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, Feb. 7, 1996) 20

1998 WL 265200 (Remarks of Bonnie J.K. Richardson, Vice President, Motion Picture Association of America, Before the Subcomm. on Int'l Policy and Trade of the House Comm. on Int'l Relations, May 21, 1998) 20

H.R. Rep. No. 105-551, pt. 1, at *18 (1998); accord S. Rep. No. 105-190, at *26 (1998) 19

H.Rep. 105-551, part I, at 18; in accord S. Rep. 105-190 25

"The Audio Home Recording Act of 1992 and the Formation of Copyright Policy." The Journal of the Copyright Society of the USA. 16

[Harold Abelson Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

I, HAROLD ABELSON, declare under penalty of perjury that the foregoing is true and correct:

1. I am Professor of Computer Science and Engineering at the Massachusetts Institute of Technology in Cambridge, Massachusetts. I give this declaration in my personal capacity and not on behalf of MIT.

2. I have been active in computer science at MIT since 1969, when I began as a graduate student. I joined the MIT Department of Electrical Engineering and Computer Science as a faculty member in 1977.

3. From 1981 through 1998, I was in charge of MIT's introductory computer science subject, "Structure and Interpretation of Computer Programs" (together with my colleague, Prof. Gerald Jay Sussman). This subject is taught at MIT each year to between 500 and 700 undergraduates.

4. Together with Gerald Jay Sussman and Julie Sussman, I am author of the textbook Structure and Interpretation of Computer Programs, which is based on our MIT course. The first edition of this book was published by the MIT Press and the McGraw-Hill Book Company in 1985; the second edition appeared in 1996.

5. Through the MIT course and the textbook, my work in computer science education has gained major visibility. Materials arising from our course are currently used at over 200 colleges and universities worldwide.

6. In recognition of my educational activities, I was named winner of 1995 Taylor L. Booth Award, given by the Institute of Electronic and Electrical Engineers (IEEE) Computer Society for outstanding contributions to computer science and engineering education. I was cited for continued contributions to the pedagogy and teaching of introductory computer science.

7. I comment from the perspective of someone who has been active in the teaching of university computer science.

Computer Programs Are a Medium of Expression

8. The notion that computer programs are a medium of expression is widespread throughout computer science education. In particular, this notion is central to the approach to computer science used at MIT over the past fifteen years. The idea appears prominently in the preface to our textbook:

Our design of this introductory computer-science subject reflects two major concerns. First, we want to establish the idea that a computer language is not just a way of getting a computer to perform operations but rather that it is a novel formal medium for expressing ideas about methodology. Thus, programs must be written for people to read, and only incidentally for machines to execute . . .

Computer Programs Express Ideas about Methodology

9. Just as ordinary mathematics and logic serve as a languages for expressing ideas about truth and falsehood (so-called "declarative knowledge"), computer programs serve as languages for expressing ideas about how to do things (so-called "imperative knowledge"). The following excerpt from a paper I wrote in 1990 expands on this point (from "Computation as a Framework for Engineering Education," in Research Directions in Computer Science: An MIT Perspective, Cambridge, MA: MIT Press, 1991):

To illustrate the difference between declarative and imperative knowledge, consider the following definition of a square root: The square root of a number X is the number Y such that Y times Y equals X. This is declarative knowledge. It tells us something that is true about square roots. But it doesn't tell us how to find a square root.

In contrast, consider the following ancient algorithm, attributed to Heron of Alexandria, for approximating square roots. To approximate the square root of a positive number X: Make a guess for the square root of X; Compute an improved guess as the average of the guess and X divided by the guess; Keep improving the guess until it is good enough.

Heron's method doesn't say anything about what square roots are, but it does say how to approximate them. It is a piece of imperative "how to" knowledge.

Computer Science is in the business of formalizing imperative knowledge -- developing formal notations and ways to reason and talk about methodology. Here is Heron's method formalized as a procedure in the notation of the Lisp computer language:

	(define (sqrt x)
        (define (good-enough? guess)
	(<(abs (- (square guess) x)) tolerance))
	(define (improve guess)
	(average guess (/ x guess)))
	(define (try guess)
	(if (good-enough? guess)
	guess
	(try (improve guess))))
	(try 1))

Certainly, if the only things we ever computed were square roots, then Computer Science would not be of much interest. Similarly, if all one ever did in geometry was surveying, then geometry would not be of much interest. In each case, the importance of having a formalism is that it provides a framework for controlling complexity, a way to think about ideas that are too involved to think about all at once. The important techniques in Computer Science are the techniques for coping with methodological complexity.

Expressive Style Is an Important Aspect of Computer Programs

10. One indication that computer programs have major expressive elements is that teachers of programming regularly evaluate student programs on stylistic issues such as readability (by people) and appropriateness of choice of elements. This is analogous to the way that teachers of writing evaluate student essays on the style and quality of writing, not just on the meanings of the words.

11. The criteria used in evaluating "programming style" are often unrelated to the sequence of operations that would be carried out by a computer in executing the program. Two programs might evoke exactly the same process when executed by a computer, and yet be judged very differently, because they express the process in different ways.

12. As an example, the following excerpt from our textbook (2nd edition) discusses a technique called "mapping over a list":

MAP is an important construct, not only because it captures a common pattern, but because it establishes a higher level of abstraction in dealing with lists. In the original definition of SCALE-LIST, the recursive structure of the program draws attention to the element-by-element processing of the list. Defining SCALE-LIST in terms of MAP suppresses that level of detail and emphasizes that scaling transforms a list of elements to a list of results. The difference between the two definitions is not that the computer is performing a different process (it isn't) but that we think about the process differently.

Dated: April __, 2000

Cambridge, Massachusetts

[Andrew Appel Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

I, ANDREW W. APPEL, declare under penalty of perjury that the foregoing is true and correct:

1. I am currently a professor of computer science at Princeton University. I teach courses in compilers, programming languages, and software engineering. My research is in efficient compilation of functional programming languages, particularly the language "ML." A copy of my Curriculum Vitae is attached hereto as Exhibit A.

2. I received a Ph.D. in Computer Science from Carnegie-Mellon University in 1985. I have been at Princeton University since 1986; as Assistant Professor (1986-92), Associate Professor (1992-95), and Professor (since 1995). From 1993-97 I served as Editor in Chief of ACM Transactions on Programming Languages and Systems, the major journal in the field of programming languages. My work as the implementor of the "Standard ML of New Jersey" compiler is well known. Standard ML of New Jersey is research software that has been distributed widely, without charge, on the Internet since 1988. It is now in use at over 100 universities and industrial research and development laboratories.

3. Publication of ideas -- which includes in particular publication by means of posting and linking on the internet -- is a fundamental part of the academic world. Publication of ideas is emphasized in academia because it is vital to the scientific method. This, on a basic level, means that if you have an idea, you toss it out into the "marketplace of ideas" and your peers and others evaluate it, test it and discuss it. This is how we determine which ideas are good and which are faulty.

4. For example, I mention two journal papers:

a.. "Efficient Computation of LALR(1) look-ahead sets." F. L. DeRemer and T. Pennello, ACM Transactions on Programming Languages and Systems, October 1982. This article explains a faster computer algorithm for a certain task, whose utility was justified by a (claimed) relationship between two classes of programming language grammars.

b. "On the (non-)Relationship between SLR(1) and NQLALR(1) Grammars." M. E. Bermudez and K. M. Schimpf, ACM Transactions on Programming Languages and Systems, April 1988. This article published nearly six years later, described itself as follows: A popular but "not-quite" correct technique for computing LALR(1) look-ahead sets has been formalized by DeRemer and Pennello and dubbed NQLALR(1). They also claim that the class of SLR(1) grammars is a subset of the class of NQLALR(1) grammars. We prove here that no such relationship exists between those two classes. We do so with a counterexample that, ironically, appeared in DeRemer and Pennello's own paper.

5. Clearly, DeRemer and Penello's idea was not as good or useful as they thought, since Bernudez and Schimpf were able to demonstrate its flaws. On the other hand, scientific journals are full of good papers about ideas that don't actually work, but do advance the state of the art. The way they do so is by reaching their readers and encouraging the readers to review, test and improve on the ideas.

6. For anyone whose ideas include or involve computer code, this publication process as part of the scientific method includes publication of that code. This is not only computer scientists, but mathematicians, cryptologists, scientists, economists and others whose ideas are described or demonstrated with the help of computer code. Descriptions limited to English or mathematics are not sufficient to appropriately describe many things. They are certainly not sufficient to allow someone else to test many ideas without significant, unnecessary work. Such testing is required for both the scientific method and academic advancement.

7. For example, early in my career (1986) I became convinced that a certain kind of programming language, called "functional," would be useful for a wide variety of applications. Up to that point, functional languages were considered useful only in very specialized applications, and systems that used functional languages were invariably extremely slow (these two points are related, since many uses of computers require speed).

8. I focused my research on the speedy implementation of the functional language ML, implemented in my "Standard ML of New Jersey" software system. In 1987 I published a preliminary paper (with a colleague) describing the system. Also in 1987, I began making the software available, for free, to anyone who wanted to use it. Originally this was done by sending magnetic tapes through parcel post.

9. By 1988 we realized that we could make our software available on the Internet to anyone who wanted to "fetch" it. We did so in order to allow others to test and review it. By 1990 there were over 70 academic and industrial institutions using the software, and by 1994 over 100. It would have been very difficult to sustain this wide a distribution using magnetic tapes, since we were not charging money for the software.

10. Between 1987 and 1997, I published a series of papers describing the scientific ideas and methods underlying the software. I also posted each of these papers on the internet, linked to them from my home site and other professional web sites with which I was involved, and encouraged others to link to the papers as well. Any academic scientist is expected to describe his innovations in a form where fellow scientists and the world at large can learn from them. However, in the "marketplace of ideas" there are many competitors, and the scientist often has a hard time being heard. When I published my papers, I think that people took them seriously because they knew the software worked well.

11. Distributing computer code on the Internet -- together with commentary, questions, and the like about the code -- enables not only the evaluation of ideas, but also their incremental improvement. For example, a compiler for the programming language is typically a large software system, often containing hundreds of "modules," where each module represents one or more scientific ideas and days or weeks of implementation effort. My "Standard ML of New Jersey" compiler, for example, has more than 400 modules and represents tens of man-years of effort.

12. A typical scientific idea or innovation usually involves just a small set of these modules. If a scientist wants to test his new idea, involving one module, he will still have to implement all the other modules just to demonstrate that his idea works. By distributing the software, I make it possible for a scientist to replace just one module with an innovative one, and use the other modules that I provide.

13. There have been several occasions since 1988 where computer scientists at other institutions have fetched the Standard ML of New Jersey software on the Internet, made modifications to it, and published scientific papers describing their improvements. The lack of freely distributed software would constitute a significant "barrier to entry" to scientists wanting to test innovations.

14. Making computer code available on the Internet is an important avenue for academic advancement. My own career would have been hurt significantly if I had not been able to distribute or retrieve working computer programs. While many of the web sites presently posting or linking to DeCSS state or suggest that the posting is intended to demonstrate sympathy for the right to post DeCSS, I am aware of at least four scholarly/academic web sites which have posted or linked to DeCSS in the context of scholaraly discussions:

http://www.counterpane.com/crypto-gram-9911.html#DVDEncryptionBroken

(web site of Bruce Schneier, president of Counterpane Systems, a noted researcher and developer of cryptographic systems;

http://www.cs.berkeley-.edu/~daw/crypto.html

(web site of David Wagner, a P.hD candidate and well-known and widely respected researcher in the cryptography and security communities);

http://www.cs.cmu.edu-/~dst/DeCSS/index.html

(web site of David Touretzky, Professor of computer science at Carnegie Mellon University); and

http://ils.unc.edu/gbnewby/index_top.html

(Greg Newby, Assistant Professor, School of Information and Library Science, University of North Carolina at Chapel Hill).

15. Cryptography is an area of applied mathematics, just as many areas of computer science are. It is not merely a "product" or a "thing" to be used for commercial purposes; it is a dynamic academic discipline. This science may also produce useful things for people, as with many sciences, but it changes and grows with new research and insights gained from the academic process. The further development of this discipline requires that cryptographers be able to share their ideas, including the sharing of their computer code over the internet.

16. The cryptological work done in "cracking" the CSS encryption program used on DVDs; on the DeCSS utility and source code; and information about the related reverse engineering and programming work involved in developing a Linux-based DVD player are all topics of serious academic and scientific concern. It is very important and appropriate that this information is and remains available to the scientific, academic and computer community via the internet.

17. Hyperlinking is also an important part of this discourse, as well as a major part of the internet's tremendous growth and power -- and any restriction on linking would have grave ramifications. Huge amounts of information are accessible to anyone who looks for it; an almost unlimited variety of opinions are expressed on millions of web sites; and for scientists, linking makes the free and open exchange of information with other scientists, academics, and any interested persons much simpler, broader and more effective. Barring hyperlinking would have a very negative impact on the flow of ideas and information online.

18. Finally, I am deeply concerned about the potential harm to scholarship that may occur were this Court to adopt the interpretation of Section 1201 of the Copyright Act I am told plaintiffs have asserted in this lawsuit. As set forth in greater detail in the Comment I and my colleague Professor Edward Felten submitted in response to the Copyright Office's request for comments to assist it in determining exemptions from Section 1201(a)(1) of the Act, which is attached hereto as Exhibit B:

Technical protection mechanisms that prevent computer programs from accessing the underlying content of copyrighted materials will hinder legitimate noninfringing uses that are vital to scholarship and science.

19. In sum, based on my experience as a University professor and researcher, as a programmer, and as a serious participant on the internet since its birth, it is my opinion that scholarship and science, and the innovation that is so crucial to technological advancement and economic growth, will be seriously damaged by an interpretation of Section 1201 that would prohibit circumvention of security systems for such non-infringing purposes as, for example, those described in my submission to the Library of Congress.

Dated: April ___ 2000

Princeton, New Jersey

[Chris DiBona Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

I, CHRIS DiBONA, declare under penalty of perjury that the foregoing is true and correct:

1. I am presently employed by VA Linux Systems, Inc. ("VA Linux"), which is the country's leading company providing hardware and software products for Linux users and Internet Infrastructure companies. A copy of my Resume is attached hereto as Exhibit A.

2. Linux is an operating system designed from the ground up to be distributed in an open manner. One of the things that makes Linux different from other commercial offerings is the fact that it is not owned by any one person, organization or company. Developed over the last decade over the internet, Linux was released under the GNU General Public License ("GPL"). The GPL license provides that anyone can use Linux, but they must promise to make any program derived from or based on the Linux source code open and freely available in its turn, so as to promote the spread of the Linux and similar software. By it's very nature, Linux is an open system.

3. During the early development of Linux, it was very rare for a manufacturer of a device (say a DVD player, printer, video or sound card) to provide specifications or even technical help to the people who wanted that same device to work with Linux. Commonly, a programmer would reverse engineer the device to ensure that device worked under Linux.

4. I have very closely followed the efforts of various individuals and/or groups to develop a DVD player for machines using the Linux operating system (as well as for other open-source operating systems), including those of the international LiVid group. I have also followed with great attention the related efforts by some individuals and/or groups to "crack" the CSS code that encrypts the data on DVDs as part of their endeavor to create an open-source DVD player. Such a step is necessary to enable DVD players not equipped with CSS, such as players for use on Linux and other open source platforms, to read or play commercial DVDs.

5. I have reviewed this Court's preliminary injunction decision -- which is posted online at a variety of web sites, including a number of web sites on the 2600.com mirror list as posting DeCSS -- and am aware of the Court's apparent belief that DeCSS poses a great risk of of copying by "pirates" who could use DeCSS to create innumerable, commercially viable, infringing digital copies of a DVD movie. Based on my experience, my expertise with the necessary technology, and the investigation described below, it is patently clear to me that this conclusion is factually incorrect. Additionally, the Court's apparent belief that the only reason for DeCSS is for copying is also incorrect. For example, Jon Johansen, the Norwegian 16-year-old who first posted DeCSS and is a member of MoRE ("Masters of Reverse Engineering"), the group that developed the utility, stated in a January 31, 2000 interview reported on CNN.Com:

"I got involved with DVD about two years ago. . . . . [a]nd about at the end of September last year, I got in contact with a German Computer programmer and a Dutch computer programmer, and we decided that it was time to add DVD support to Linux -- and, of course, to opther operating systems, such as FreeBSD."

A copy of the interview is attached hereto as Exhibit B.

6. I have no personal knowledge of anyone using DeCSS to view or copy a DVD, except for a single professional demonstration presented by OpenDVD.org at the Atlanta Linux Showcase trade show at which DeCSS was used to play (but not copy) a DVD.

7. In early April, I was asked by counsel for the defendants in this lawsuit to investigate the use by the Linux community -- and/or anyone else -- of DeCSS in any context, including to view or copy DVDs. Accordingly, in addition to my constant contacts and conversations with members of the Linux community, between April 10th and April 20th I posted general inquiries about DeCSS-related copying to the Linux, other open-source, and "hacker" (in the non-perjorative sense of individuals devoted to exploring the limits of the Internet) communities via a variety of mailing list and websites, including but not limited to the SVLUG and DeCSS mailing lists and the opendvd.org website. These communities are made up of very skilled and technically capable people.

8. None of the approximately 2000 people who responded to my e-mails and postings reported using DeCSS to make copies of DVDs. Indeed, only two people -- both of whom insisted on strict anonymity as a condition of speaking with me because they feared reprisal from the MPAA -- said that they were able to use DeCSS to view DVDs they had purchased. However, both reported significant problems with playback. One experienced distorted video and both experienced stuttering sound. It's also worth noting that the individual who called the video "high quality" (although with bad sound) used a very expensive dual processing computer equipped with a great deal of random access memory.

9. There are several explanations for the results obtained by these isolated experiments. First, it is technically quite complicated to use DeCSS to copy DVDs. Starting with the DVD player, you'd need to acquire and make use of the DeCSS utility. Additionally, some sort of MPEG decoding utility would be necessary to view the resulting decoded data. Since the algorithms used by the MPEG display software are especially cpu (the central processing unit or chip that runs a computer) and memory intensive, and because the developers of the DeCSS application were unable to enlist the help of any hardware decoder that may exist on the video card, the resulting video quality is very poor.

10. Except under a very specific and unusual set of circumstances (I am hypothesizing that such circumstances are possible, since as far as I am aware, it hasn't yet been done), it is also nearly impossible to enjoy a DVD played through DeCSS because of the syncing problems that make movies appear like dubbed martial arts films. When one combines the poor playback quality created by these technical difficulties with the exceptionally large size of the data files, which makes the copying and distribution of decrypted versions of movies from a DVD so costly and complicated as to be unfeasible, it is clear that DeCSS is not a useful tool for the piracy, let alone viewing, of DVDs.

11. In order to test the theories and information I had gleaned about the DeCSS program, and to understand the technical aspects of using it, I downloaded DeCSS.exe and installed it on my DVD equipped Laptop. Before executing DeCSS, I tried to copy some of the VOB files off of the DVD of Air Force One that was specifically procured for this task. I was unable to copy over the file until after I had run DeCSS on the drive to unlock the data, which confirmed that DeCSS permits one to copy a file off a DVD onto a computer's hard drive. However, the only DVD player program I had on my computer refused to play any of the VOB files I had copied directly off the hard drive (I did not copy all of them because of lack of room on my 18-gB hard drive). I was also unable to find a program under windows that would play the VOB file.

12. I was able to play the VOB file under Linux using a free utility called "xmovie". (x denotes that this is a movie player for the xwindows system, the windowing environment used by Linux and Unix). My experience was that with some tweaking I was able to watch the VOB file, but that video quality was very poor, showing a lot of stuttering and with a great deal of artifacts, and the sound, while clear enough, was not synchronized with the picture very well. This was the first time I was able to watch even a fragment of a DVD (which I had purchased) using Linux; but it took me hours to accomplish this task, and I used a DVD I already owned and could play on my home player and laptop computer.

13. Having laboriously used DeCSS to view a fragment of a commercially purchased DVD, my conclusion is that it is not watchable by any degree. Apart from the extensive technical problems I experienced (and others I understand are discussed in other declarations), it is clear that any copies made for sale (i.e., pirated copies) using this system would share all of the above-described defects.

14. Accordingly, given the many problems and costs associated with using DeCSS, especially compared to the low price of buying or renting a DVD and the fact that new Windows and Apple computers increasingly provide a DVD player as standard equipment, it is my opinion that the only real commercial value in DeCSS is as part of the reverse engineering of an open-source DVD player and not at all as a tool for commercial piracy. This conclusion is also supported by the fact that none of the 2000 people who responded to my inquiries about DeCSS used the program to copy a DVD.

15. In fact, DeCSS seems to me to have been created as an exercise in cryptology and the result of intellectual curiosity and experimentation by a handful of extremely sophisticated computer experts. Once open-source DVD players have been established, DeCSS' only value will be as an interesting utility to be examined by academics, scholars, engineers, programmers, cryptologists, and the like.

16. After some thought, and through my actions working on this debate, I realized that may be in fact possible to copy the VOB files as I described in previous paragraphs, but without using DeCSS at all. I tested my theory on my Laptop, a IBM Thinkpad 600E with a DVD drive installed.

17. IBM ships the Mediamatics DVD playing program with their DVD drive so that the user can watch DVD's in full screen under Windows. This works flawlessly under Windows. What is interesting is that if you do the following, you can copy data off the Disk, and use the mediamatics program as a DeCSS equivalent.

18. First, I opened up the same movie and started it playing, then I minimized the window so that my screen was not completely filled by Harrison Ford. Using window's file manager, I then copied two of the VOB files on the Disk to the hard drive. Prior to my playing the movie (and the concommitant unlocking of the DVD Drive by the mediamatics player), I was unable to copy these same VOB files.

19. After copying one of the files onto my hard drive, I shut down the mediamatics playing program. I discovered that upon the closing of the program the DVD was left unlocked. This means you can copy the data from the DVD player while it is playing, or you can wait until you are done watching to copy the data. I copied over some more of the VOB files that I had been unable to copy before starting the MediaMatics program. The VOB file that was copied was still scrambled, but it was the data off the DVD drive. Conceivably you could make a bit for bit copy of the DVD in this manner.

20. It should be clear that the DeCSS program by itself is not necessary to get the data files off the DVD. The design of the protocol makes DeCSS redundant. If a person is able to play a DVD on a Laptop, then the design of CSS demands that the DVD be unlocked. While a DVD is unlocked, you can copy whatever you want off the DVD. For the case of my laptop and the MediaMadics player I was able to not only copy the VOB file I was currently viewing, I was able to copy all other files. That said, I'd be surprised if this was not the case for the other players. The design of the DVD copy protection is flawed in such a way as to invalidate any assertion that CSS is a copy protection mechanism, since I can use the tools designed for it and licenced by the MPAA/DVD-CCA to copy VOB files.

21. If the DeCSS program is not even needed to circumvent the copy protection on the DVD, DeCSS should be seen as a method of descrambling only, as copy protection is invalidated by the design of the DVD itself. The fact that the files can be removed without DeCSS means that bit-by-bit copies of the DVDs could be made using the necessary equipment. It may even be possible to make a CSS-equipped DVD player run the encrypted VOB files directly off a hard drive without the benefit of any assisting software.

Dated: May 2, 2000

Sunnyvale, California

_________________________________

[Bruce Fries Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

I, BRUCE FRIES declare under penalty of perjury that the foregoing is true and correct:

1. I am a publisher, writer, technology consultant and entrepreneur. In January 1999, I founded TeamCom, LLC, a New Media publishing company. I am also an associate of the Audio Engineering Society. A list of TeamCom's present and future publications is attached hereto as Exhibit A.

2. I recently wrote and published The MP3 and Internet Audio Handbook: Your Guide to the Digital Music Revolution! to explain the new MP3 technology and the benefits of digital audio compression, downloadable music and streaming audio in simple, easy-to- understand terms. The book also contains step-by-step instructions for finding music on the Internet, listening to Internet radio, creating and playing MP3 files, recording music on a computer, recording custom CDs, and connecting a PC to a stereo system. Information about and press reaction to The MP3 Handbook are attached hereto as Exhibit B.

3. In the Fall of this year, TeamCom will simultaneously publish the book Fair Use: the Fight for Consumer Rights in two formats: traditional print and as a down-loadable text file available through the Internet. I conceived this book as a result of the recent court cases initiated by the Entertainment Industry in response to the Internet publication of the DeCSS source code. Fair Use focuses on the issues surrounding the fair use of copyrighted materials by consumers and researchers. It explains various forms of encryption and copy protection schemes that assume consumer dishonesty and prevent or restrict duplication of copyrighted works for legitimate purposes such as fair use and reverse engineering. An outline is attached as Exhibit C.

4. The book includes tutorials and source code for programs -- including the source code for DeCSS -- that enable consumers and researchers to circumvent copy protection schemes for fair use purposes. Obviously, it is crucial to the book's accuracy and credibility that I am able to publish the source code for DeCSS and other CSS descramblers. Moreover, the on-line version of Fair Use will include URLs that will appear to the reader as hyperlinks, including links to web sites that may post or link to DeCSS. Thus, the plaintiffs' motion to expand the injunction against posting the DeCSS source code to include a prohibition against links to web sites that post DeCSS would directly and negatively impact TeamCom's publication of Fair Use. If TeamCom cannot include hyperlinks in its on-line publication of the book, it will be forced to censure its on-line publication by removing prohibited URLs, even though those addresses remain in the traditional print publication of the book.

5. The expansive injunction sought by plaintiffs would have this chilling result because even if TeamCom does not put banned URLs in a HTML format, many of the computer programs that will be utilized to read the book after it has been purchased and down-loaded it to a customer's computer will recognize a URL and automatically convert it to a hyperlink. Thus, even though TeamCom has no control over whether a reader's program will convert URLs into hyperlinks, we could nonetheless be found to have improperly linked to a prohibited web site.

Dated: April ___, 2000

Silver Springs, Maryland

______________________________

[Martin Garbus Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

I, MARTIN GARBUS, declare under penalty of perjury that the foregoing is true and correct:

1. I submit this affidavit in support of defendants' motion to immediately vacate the prior restraint.

2. At the present time, as I understand the law, the use of DeCSS is not illegal. 1201(a)(1) is not yet in effect, and DeCSS is not copyright infringement. It is simply another means of legitimately using a purchased copyright work. This case is not about piracy.

3. The declarations we have filed include statements of significant people in the field with full knowledge of the facts has been or they will be filed. There are hundreds more such potential witnesses, organizations and individuals who deal with the statutory history, the fair use issues and the very important First Amendment concerns in the work that defendants do. The declarations we have submitted are not only individual voices, but they are also voices for the most important constituencies in the country on the issues of educations, fair use, creativity, copyright and speech.

4. Some 235 comments have thus far been submitted to the Copyright Office, as part of its current "rule making" procedures for § 1201(a)(1) of the Digital Millennium Copyright Act: how it is and should be legally interpreted, what factors Congress and the court should consider and what the future will be. These organizations deal with many of the issues before this Court -- fair use, First Amendment, the need for access to information. Hearings are presently being conducted in Washington, D.C. and at Stamford University. Approximately 235 comments were submitted in the first round; only a handful, I am told, were in favor of plaintiffs' view of the DMCA's interpretation that plaintiffs argue here today, and those were submitted by those who share plaintiffs' concerns. The 235 comments consist of librarians, academics, Harvard University and computer scientists and others. A list of some of those who submitted comments are annexed hereto as Exhibit A.

5. The Copyright Office's description of the comment process is set forth at Exhibit B. These comments include representatives of the five most significant libraries, representatives from MIT and others. Annexed hereto as Exhibit C is an informational packet regarding the comment process. These are some of the witnesses we expect to call and to get further affidavits from. We believe the Court will recognize that what has happened thus far in this proceeding is remarkable. That is why we needed this time to go before the Court and why we resisted Proskauer Rose's statement that discovery could be taken in a week and we could go to trial in late April or May. These are taken from the website of the United States Copyright Offices.

6. Annexed hereto as Exhibit D is a recent New York Times article (Friday, April 27, 2000) on the DVD case, and a Village Voice article (May 2, 2000) (Exhibit E). Both advise the reader where to go to get DeCSS. The press reports 300,000 downloads of DeCSS (I do not know how accurate this is), and the plaintiff does not claim one single act of piracy. Annexed hereto as Exhibit F is a list of more than 30 stories published by major news organizations that are posted or linked to DeCSS. Annexed hereto as Exhibit G is a copy of a letter sent from Disney Chief, Michael Eisner to "Fellow Cast Members."

7. A prior restraint is in effect where there has been limited information given by the plaintiff to the Court or opposing counsel at the time of their application to the Court. I understand the Harvard University Berkman Center has written to this Court and asked permission to file an amicus brief. My understanding is that Professor Charles Nesson of Harvard will be the signatory on that brief and it will be filed shortly. I understand as of now the New York Times intends to file an affidavit as the appropriateness of an article that refers to a site that tells you where to get DeCSS. I understand the Universities of Chicago, California, Yale University and the American Civil Liberties are considering filing affidavits along with selected librarians. I urge the Court to accept all of these filings. So too, I believe, will Professor Lessig at Harvard and Professor Bechler at New York University. These are objective professionals who have lived with the DMCA for a long time.

8. The delay in the additional affidavits do not offer plaintiffs any justification for opposing the immediate lifting of the injunction. They confirm and expand on what has already been sent and although there are new matters, there is now for the first time in three months, a sufficient record. On the contrary, this should persuade the Court to deal with this now. I am determined to have a full record on this motion.

9. No Court would permit a government agency alleging national security violations that sought to keep a restraining order in effect to ignore or delay discovery. Surely, private parties Sony and Universal and the remainder of the plaintiffs stand in no better shoes.

THE PRIOR RESTRAINT ORDER AND THE RELATED ISSUE OF DISCOVERY

10. If this were a commercial case I would not be so committed to vacating an order. But this is not an ordinary commercial case; it is not even a very serious commercial case. It is a First Amendment case with extremely broad implications where a prior restraint had wrongfully been put in place. As I indicated to the court, the defendants did not have the option of appeal; do not, as a practical matter, have the option of moving ahead the trial immediately and must seek discovery to persuade the Court that its previous order should be vacated. The problems here are not of the Court's making and they are not of the defendants' making. I apologize now for getting involved in discovery issues. Proskauer Rose, after saying it was ready for trial in April 2000 or as late as May now says is cannot even begin discovery at this time. They seek to ignore this Court's ruling rendered yesterday Discover