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By Pete Boyd
"The main purpose of copyright technology
and copyright law is to keep the honest people honest."
I. Background
This paper is going to delve into the intricacies of the current
debate concerning piracy of DVDs. Specifically, the following pages
will discuss the seminal case of Universal v. Reimerdes, which is
now before the Second Circuit Court of Appeals, and the application
of section 1201 of the Digital Millennium Copyright Act (DMCA).
The controversy in Reimerdes concerns the movie studio's (Studio's)
fight to stop 2600: The Hacker Quarterly (2600) from posting or
linking to a program that decrypts the copyright protection system
that is standard on all DVDs.
In 1997, the Studios and electronic equipment manufacturers began
an effort to bring motion pictures into the digital age through
drastically improved audio and visual clarity. Their effort culminated
in the creation of DVD disks and players. DVDs are five-inch wide
disks capable of storing more than 4.7 GB of data. Because of their
size and data capacity, they have a multitude of uses, but for the
purposes of this paper they are used to hold full-length motion
pictures in digital form.
Since DVDs are in digital format and are encrypted by only a 40-bit
key, the Studios were very concerned over the possibility of piracy.
DVDs posed a serious challenge for the Studios: how can digital
works be protected in a world where duplication is easy, every copy
made is perfect, and distribution to users worldwide via the Internet
can be instantaneous? Since technological sophisticated hackers
will always be able to crack certain methods of copyright protection,
a combination of both law and the technology are necessary to control
unauthorized distributed works. The new set of copyright laws designed
to protect against digital piracy are codified in section 1201 of
the DMCA. To implement the copyright protection technology system,
the Studios and electronic manufacturers settled on a universal
system known as CSS, or Content Scramble System.
CSS is an encryption system that requires the use of appropriately
configured hardware such as a DVD player or a computer DVD drive
to decrypt, unscramble and play back, but not copy, motion pictures
on DVDs. The underlying technology behind CSS is a system of player
keys. Each DVD player has certain set keys designed to be activated
once a disk in inserted. Upon insertion, the DVD player requests
the corresponding duplicate key from the DVD disk. If the right
match is made, you are allowed to watch a DVD. If not, the disk
simply will not play. Importantly though, the CSS system makes no
determination whether the DVD was lawfully obtained or whether the
viewer is legally authorized to view the DVD, it just wants to know
if the disk is proper. Further, it is important that CSS uses only
a 40-bit key. The short key length means that a brute-force search
will quickly find the key, as the program DeCSS works.
While CSS is an important factor in the current controversy, the
core of the case is a computer program called DeCSS. DeCSS is a
software utility, or computer program, that enables users to break
the CSS copy protection system and hence to view DVDs on unlicensed
players. More importantly, this program allows users to make digital
copies of DVD movies to their computer hard drive. It does this
by circumventing an encryption program, through a system of algorithms
that eventually crack the CSS code that has been placed on DVDs.
However, the Studios are even more afraid of a little known program
called DivX. DivX is a program that compresses video files in order
to minimize required storage space. DivX is capable of compressing
a 4.7GB feature length motion picture to approximately 650 MB, at
a compression ratio that involves little loss of quality. This is
critical for two reasons. First, it allows for a faster transfer
of the movie via the Internet, since a transfer of 4.7GB movie could
possibly take a day even on high-speed networks. Second, it allows
a DVD movie to be burned onto a single 650MB CD disk. Because of
these new technologies, it is understandable why the Studios are
afraid that digital piracy could harm their revenue stream. Although
their technology protection system (CSS) has already been compromised,
they were forward thinking and developed legislation to counteract
these illegal forces.
II. The DMCA
With the DMCA, Congress intended to bring copyright law squarely
into the digital age. The DMCA was enacted by Congress to implement
the World Intellectual Property Organization Copyright Treaty (WIPO
Copyright Treaty) signed in Geneva by the administration in December
of 1996. The DMCA divides anti-circumvention technologies into two
categories: those that prevent unauthorized access to a copyrighted
work and those that prevent unauthorized copying of a copyrighted
work. In the former category, 1201(a) proscribes both the act of
circumventing technological access controls and the distribution
of devices designed for that purpose. In the latter category, 1201(b)
prohibits only the distribution of devices that circumvent copy
controls but not the act of circumvention by use of such devices.
Section 1201(a)(3) states that to circumvent a technological measure
means to descramble a work, to decrypt an encrypted work, or to
otherwise avoid, bypass, remove, deactivate, or impair a technological
measure, without the authority of the copyright owner.
The DMCA, in section 1201(d)-(j), provides several exceptions to
these prohibitions. The statute permits an individual to circumvent
an access control on a copyrighted work, or, in limited circumstances,
to share circumvention technology: (1) in order for a school or
library to determine whether to purchase a copyrighted product;
(2) for law enforcement purposes; (3) to achieve interoperability
of computer programs; (4) to engage in encryption research; (5)
as necessary to limit the Internet access of minors; (6) as necessary
to protect personally identifying information; or (7) to engage
in security testing of a computer system.
Finally, according to 17 U.S.C. 1204, criminal prosecution for a
1201 violation is limited to intentional violations committed for
commercial or personal financial gain. In the situation of a criminal
prosecution, the first offense of a 1201 violation carries up to
a five-year prison sentence and a US$500,000 fine. Each subsequent
offense carries up to ten years and US$1,000,000. 17 U.S.C. 1203
grants the court the power to award several types of civil remedies,
including attorneys fees, injunctions, damages, cost recovery, and
destruction of the infringing device. Damages can either be actual
or statutory; statutory damages range from $200 to $2500 per 1201
violation. 17 U.S.C. 1203 does not set limits on actual damages.
III. Universal v. Reimerdes
In September 1999, 15-year-old Jon Johansen, a Norwegian subject,
reverse engineered a licensed DVD player and discovered the CSS
encryption algorithm and keys. He then used this information to
create DeCSS, a program capable of decrypting encrypted DVDs, thereby
allowing playback on non-compliant computers as well as the copying
of decrypted files to computer hard drives. Mr. Johansen then posted
the executable code on his personal Internet web site and informed
members of an Internet mailing list that he had done so.
Almost immediately after the CSS reverse engineering was complete,
the Studios began sending threatening letters to the owners of web
sites offering CSS decryption programs for download. These letters
successfully intimidated some web sites into removing the programs,
although not 2600: The Hacker Quarterly. These letters threatened
legal action for theft of trade secrets, copyright infringement,
contempt of court, and trafficking in circumvention technology.
Many letters have been sent to people and places outside of the
United States, threatening lawsuits in U.S. courts and quoting U.S.
court injunctions.
In November 1999, 2600 began to offer DeCSS for download on its
website. It established also a list of links to several web sites
that offered DeCSS for download. The links on defendants' mirror
list fall into one of three categories: (1) links that directly
download the software, although from another web site, (2) links
that bring the user to another site, whereby they must click on
another link to download, or (3) links that bring the user to another
site that simply lists more links.
On January 14, 2000, the Studios commenced an action in the district
court of New York. The complaint alleged that defendants' dissemination
of DeCSS on the Internet violated §§ 1201(a)(2) and 1201(b)
of the DMCA. The Studios sought both preliminary and permanent injunctive
relief. 2600 answered the complaint by asserting that the Studios
failed to state a claim under the DMCA, and that §1201 of the
DMCA was unconstitutional both on its face and as applied to because
it violates the First Amendment. Specifically, 2600 maintained that
DeCSS is protected expression, and that § 1201 unlawfully discriminates
against DeCSS on the basis of content. Defendants also argued that
§ 1201 is unconstitutionally overbroad because it effectively
prevents individuals from making fair use of plaintiffs' copyrighted
films, and is void for vagueness. Finally, 2600 claimed that an
injunction barring their dissemination of DeCSS would violate the
prior-restraint doctrine.
The District court issued a preliminary injunction barring 2600
from posting DeCSS. Following the issuance of the preliminary injunction,
defendants removed DeCSS from the 2600.com web site. However, in
what they termed an act of electronic civil disobedience, they continued
to support links to other web sites purporting to offer DeCSS for
download.
Following a trial on the merits, the District court found that
(1) CSS is a technological means that effectively controls access
to plaintiffs' copyrighted works, (2) the one and only function
of DeCSS is to circumvent CSS, and (3) defendants offered and provided
DeCSS by posting it on their web site. Further, the district court
stated that whether 2600 did so in order to infringe, or to encourage
others to infringe simply does not matter for purposes of Section
1201(a)(2). Quite simply the court stated that offering or provision
of the program is the prohibited conduct and it is prohibited irrespective
of why the program was written.
Having determined that 2600 violated section 1201(a)(2), the district
court rejected 2600's several First Amendment challenges to the
DMCA. Although the district court accepted 2600's argument that
computer code is a means of expressing ideas, and is thus protected
by the First Amendment, it disagreed with their assertion that the
DMCA was subject to strict scrutiny. Instead, the district court
held that the statute was subject only to intermediate scrutiny
because it is not intended to suppress ideas, but to regulate the
purely functional aspects of circumvention technology. Concluding
that the protection of copyrighted works from digital piracy advances
a substantial governmental interest, and that any incidental limitation
on defendants' expression was no broader than necessary to satisfy
that goal, the district court upheld the constitutionality of the
DMCA.
The district court also rejected defendants' overbreadth challenge
to § 1201(a)(2). It reasoned that whether Section 1201(a)(2)
as applied here substantially affects rights of members of the fair
use community cannot be decided in bloc without consideration of
the circumstances of each member or similarly situated groups of
members. Concluding that it lacked an adequate factual record to
make such determinations, the district court refused to entertain
2600's overbreadth claim.
Finally, the district court held that injunctive relief barring
2600 from trafficking in circumvention technology comports with
the First Amendment. The district court concluded that an order
enjoining defendants from linking their web site to other web sites
offering DeCSS was constitutionally sound because clear and convincing
evidence showed that defendants had specifically established such
links in order to violate the DMCA.
IV. Appeals
In reviewing the various briefs that have been submitted to the
Court of Appeals on behalf of both parties, some issues can be clarified.
Although the parties disagree on how to frame the issues, the arguments
that are before the court now can be broken down into four categories:
1) Whether computer code is entitled to First Amendment protection;
2) Whether the DMCA allows for fair use, and if not, does that make
the DMCA unconstitutional; 3) Whether Congress had the necessary
power to enact the DMCA; and 4) Whether the injunction against linking
violates the First Amendment.
1. Whether Computer Code Speech is Entitled to First Amendment
Protection?
One of the most interesting arguments in this case is that computer
code is pure speech, entitled to First Amendment protection. Accordingly,
if code is entitled to First Amendment protection, than section
1201 in unconstitutional because it proscribes the trafficking of
a form of expression based on its content. This section will explore
the range of ideas, expression, and functions of computer code.
During the trial, 2600 put on the testimony of Dr. David Touretzky
of Carnegie Mellon University, who explained that there is no bright
line between functional computer code and speech because code is
merely a programmers ideas expressed in the form of computer readable
statements. In his testimony Dr. Touretzky stated that although
some forms of computer code are more convenient to read than others,
all computer code, including binary code such as "01001001",
is human readable. To substantiate this theory Dr. Touretzky stated
that the path from idea, to human language, to source code, to object
code is a continuum. In this continuum there is no logical distinction
between DeCSS expressed in English, in mathematics, in graphs, in
interpretive computer languages that do not require compiling, in
source code, and in object code. Simply put, it is all a form of
expression.
While the continuum of thought to code has multiple lines, the
real question should be where does one draw the line between ideas,
speech, and computer code. Should the line by drawn at mere thought?
How about writing down the DeCSS program on paper? Or printing the
DeCSS code on a t-shirt? How about including the code into a graphic
or even singing the code? What about putting the code into a non-compiled
form that can be easily compiled? Finally, what about a compiled
program? Although the district court limited the injunction to ban
only linking to the compiled code and source code, it did so only
because that is what the Studios sought. One could make a contention
that if computer code is functional, then every effective piece
of persuasive literature is functional, the revolutionary manifesto,
the political advertisement, the lawyer's closing argument, as are
the instructions to build a nuclear bomb, avoid conscription, or
bake a cake. Because of these issues the district court concluded
that computer code is a means of expressing ideas and the First
Amendment must be considered before its dissemination may be regulated.
Broadly speaking, the Supreme Court has stated that restrictions
on expression fall into two categories: content-neutral and content-based.
Restrictions on the voicing of particular ideas are referred to
as content-based restrictions (requiring strict scrutiny), while
restrictions that have nothing to do with content are considered
content neutral (requiring the less stringent intermediate scrutiny).
In general, government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content. However,
when speech and non-speech elements are combined in the same course
of conduct, a sufficiently important governmental interest in regulating
the non-speech element can justify incidental limitations on First
Amendment freedoms. In the instant case, the district court ruled
that code is entitled only to the intermediate level of scrutiny
set forth in United States v. O'Brien, 391 U.S. 367 (1968), rather
than to the strict judicial scrutiny because it is functional. Intermediate
scrutiny requires that content-neutral laws must (1) serve an important
government interest, and (2) in a manner no more restrictive than
necessary.
Before we delve into whether the government had a legitimate interest
in protecting the Studio's revenue stream, we must still ask the
questions, "Is computer code merely functional?" In two
cases different Courts of Appeals have held that computer code,
even if functional, does not preclude constitutional protection
and direct functionality will not overwhelm any constitutional protection.
It could be stated that the DMCA focuses on denying the defendant's
legitimate right to speak. The questions then becomes whether the
Studios disagree with the message of 2600 and whether they want
to suppress the computer code because they dislike 2600's opinions.
If so, they seek to enlist the court's aid in shutting down the
web sites, groups, and individuals right to speak.
Of course, this is not the First Amendment case simply because
computer programs consist of ideas. Computer-programming languages
merely instruct computers to perform complex tasks. That the languages
have characters to convey ideas is irrelevant. First Amendment does
not protect speech when it is the very vehicle of the crime. Since
computer code has a functional element, then code is subject to
regulation in appropriate circumstances because the government has
an interest in dealing with the potential hazards of the functional
speech. Congress simply enacted a law that does not allow the dissemination
of an object that has harmful effects. The proscribing of DeCSS
to the proscribing of transmitting a computer virus or the proscription
against exporting classified computer encryption.
However, since the district court stated that computer code is
only entitled to intermediate scrutiny we must look analyze the
government's legitimate reasons and whether the DMCA is narrowly
tailored. First, the DMCA's trafficking proscriptions do not set
out to regulate speech and do not single out particular categories
of speech or viewpoint. Congress's purpose was to facilitate the
wider distribution of creative speech, not to eliminate or reduce
particular viewpoints, messages, or ideas. Further, the trafficking
proscriptions were enacted to comply with the nation's obligation,
under the WIPO Copyright Treaties, to provide legal protection and
remedies against the circumvention of effective technological measures.
Moreover, the lower court's findings suggest that the government
interest involved in this case is to secure for the Studio's their
revenue stream.
In the new economy the Studios are powerless to stop the digital
piracy, since old laws cannot deal with the rapid, widespread, and
decentralized nature of digital piracy because it takes to long
to bring copyright actions against various pirates. Further, a copyright
infringement suit assumes that the plaintiffs would be able to find
the pirate, but given the nature of the Internet, that is a dubious
assumption. Finally, if left unchecked piracy threatens to destroy
the legitimate marketplace for works of art, music, film, software,
literature, and other video programming, and will deter the development
and distribution of new works in state-of-the-art digital media.
Second, the DMCA is sufficiently tailored for First Amendment purposes.
The Supreme Court has emphasized that a content-neutral regulation
need not be the least speech-restrictive means of advancing the
Government's interests. Rather, a statute is sufficiently tailored
so long as the regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation. In
applying this standard, section 1201(a)(2)'s incidental affect on
speech is no broader than is necessary to accomplish Congress' goals
of preventing infringement and promoting the availability of content
in digital form. Further, the numerous exceptions to section 1201(a)(2)
demonstrate that the DMCA is closely tailored. The DMCA leaves untouched
channels of communication for persons engaged in protest, encryption
research, reverse engineering, and security testing.
2. Whether the DMCA allows for fair use, and if not, whether
that makes the DMCA unconstitutional?
This case focuses on one crucial element of the copyright balance:
fair use. Making fair use of another author's work is often necessary
to engage in critical commentary, news reporting, and other free
speech-related activities that serve First Amendment goals. In the
instant case, these fair uses may be deemed so substantial as to
limit the power of copyright owners to impose indirect liability
on the manufacturer and sale of an infringement-enabling technology.
The fair use doctrine permits courts to avoid rigid application
of the copyright statute when it would stifle the creativity that
the law is intended to foster. It is rooted in both the Copyright
Clause and the First Amendment. While Congress retains discretion
in fashioning the details of the doctrine, that discretion is not
unlimited and cannot include abolishment of the doctrine altogether,
either directly or indirectly, and courts have traditionally stepped
in when necessary to ensure that the balance remains fair.
Several fair uses that would be impacted by its ruling, including:
(1) quotations from the script by a movie reviewer, (2) broadcast
of an excerpt of a scene, (3) performing portions of the sound track,
and (4) making clips of scenes by a film scholar to make a comparative
point, (5) allowing purchasers of copies of DVD movies to bypass
regional restrictions if they purchased a DVD movie with a region
code not matching the region code in their players, (6) allowing
purchasers of DVD movies to bypass CSS in order to fast-forward
through commercials or to replay portions of the movies at their
leisure, (7) reverse engineering to enable programmers to develop
competing programs for diverse platforms, (8) preparing multimedia
presentations to teach skills in the classroom, (9) copying elements
of a musical work in order to parody it, and (10) creating digital
indexes to search movies and databases of music.
The district court erroneously concluded that fair use is inapplicable
in the context of anti-circumvention claims by stating that if Congress
had meant the fair use defense to apply to such actions, it would
have said so, even if this meant leaving technologically unsophisticated
people with a means to make a fair use. However, Congress did say
so in section 1201(c)(1) that provides "[N]othing in this section
shall affect rights, remedies, limitations or defenses to copyright
infringement, including fair use, under this title." This language
specifically allows 2600 to contend that 1201(c) allows for the
application of Sony Corp. of America, Inc. v. Universal City Studio's,
Inc., which allows technology to be produced so long as it has other
substantial non-infringing uses, such as the ones listed above.
On the flip side, though, courts have consistently interpreted
the fair use doctrine as permitting individuals who had obtained
access to protected works to make limited use of those works. Courts
have never interpreted the doctrine, however, as providing would-be
fair-users with a right of access to protected works. Further, Congress
provided seven narrower exemptions and defenses where it was possible
to do so consistent with the overall purpose of the anti-circumvention
and anti-trafficking statutory mandates, but it did not include
a fair use defense under these exceptions. This statutory scheme
reflects a conscientious effort to balance the interests of copyright
holders and others and to articulate this balance in terms appropriate
to the distinctive purpose of the DMCA. But section 1201(c) still
presents a conflict, thus the court needed to research Congress'
intent over the conflicting sections and come to a decision of how
to rectify the incongruences. Of course, the district court did
not.
Further, there is also another argument based on standing that
could be made to deny 2600's defenses. Because 2600 did not seek
to use DeCSS and distributed DeCSS without making the attempts to
limit distribution to persons making fair uses, then 2600 cannot
defend itself on the theory that it would facilitate fair use by
others. Simply put, the overbreadth claim against section 1201 fails
because 2600 never actually circumvented the Studio's access control
measures for an illicit purpose, nor did they ever seek to use DeCSS,
nor did they ever decrypt anything. Of course, this is a flimsy
argument based on a very fine technicality because as stated above
there are countless fair uses that are now illegal.
Finally, it could be argued that there is a far greater opportunity
for fair use of the movies on DVD's than was available before. One
could state that the permanent injunction sounds the death knell
for fair use of copyrighted works, however, the public now has a
greater body of commercially released films from which to make fair
use than was ever available prior to the commercial launch of VCRs
in the 1970s. But, that argument misses the point. All of the previous
available formats are in analog form, not digital. The public should
not be limited to older formats simply because the Studios want
to maintain a revenue stream.
3) Whether Congress had the necessary power to enact the DMCA?
It is well settled that Congress may legislate only pursuant to
a power specifically enumerated in the Constitution. In the realm
of intellectual property, Congress finds its power under Article
I, section 8, clause 8, which states they have the power to promote
the science and arts. It could be argued that the DMCA's anti-device
provision is not a valid exercise of any of Congress' enumerated
powers. Based on the fact that the DMCA prohibits devices without
regard for originality, duration of copyright, or infringement of
copyright in the underlying work; the DMCA actually hinders, rather
than promotes, a body of knowledge, thus the act is unconstitutional.
The DMCA's anti-device provisions destroy the Intellectual Property
Clause's carefully crafted balance. First, as the District court
recognized, the provisions effectively nullify the public's ability
to make fair use of the underlying copyrighted works when the desired
use requires exact copying. As stated previously, there are numerous
fair uses for using the DeCSS program to decrypt a protected disk.
While the Studios contend that users should be content with the
fact they can still transcribe portions of the movie, or make analog
copies, again users should not be limited to older technology methods.
Second, the section 1201 effectively nullifies the public's ability
to access, use, and copy public domain material, including copyright-expired
material, shielded by CSS. The DMCA bans devices regardless of whether
they are actually used to gain access to a work that copyright protects.
Further, it grants an unlimited duration on the copyright! Under
the DMCA, works would still be protected two hundred years down
the road, even though the copyright has expired. Quite simply, a
law that protects copyrights perpetually cannot claim the Intellectual
Property Clause as its authority. Since the whole notion of the
clause is to grant a limited monopoly for the work so that the author
may benefit in the short term and grant the public a right to use
the work in the long term, the DMCA destroys this balance.
However, computer programs are essentially utilitarian works. Simply
put, computer code is an article that accomplishes tasks. DeCSS
is no different since it relies entirely upon programming commands
as triggers and semiconductors as a conduit in decrypting CSS-protected
DVD's. In short, since DeCSS is nothing more than an object such
as a digital crowbar, that can be regulated just like any other
burglary tool can be regulated. This case is much like prohibiting
trafficking in gambling software and the Court of Appeals should
reach the same result as the Ninth Circuit did in United States
v. Mendelsohn. Further, the trafficking proscriptions are analogous
to descrambler laws that prohibiting the manufacture, distribution
and sale of cable and satellite television descramblers, which also
defeat access control systems. Moreover, there are numerous laws
directed against such things as burglary tools, forgery devices,
radar detectors, ATM access devices, wiretapping equipment, gambling
devices, and the law routinely proscribes the possession of or trafficking
in tools of unlawful conducts as an effective method of regulating
and limiting the unlawful conduct.
Moreover, even if DeCSS is entitled to First Amendment protection,
many laws prohibit acts of pure speech when they function as instruments
of illegality, without violating the Bill of Rights. Federal law
criminalizes solicitation , fraud , bribery, and gambling . It is
against the law in some states to publish telephone credit card
information. Civil causes of action also exist for pure speech torts
such as harassment , slander, libel, simple assault, and false light
invasion of privacy. Similarly, an individual is liable for transmitting
a computer virus regardless of whether that virus will express the
inadequacies of current security measures on computer networks by
exploiting the security defects that the defendant had discovered.
Thus, under these circumstances section 1201 as applied to DeCSS
is probably constitutional use of Congressional power.
4) Whether the injunction against linking violates the First
Amendment?
Links are what unify the Internet into a single body of knowledge.
The sole function of a link is to take one almost instantaneously
to the desired destination with the mere click of an electronic
mouse. The heart of the debate over the permanent injunction is
the fact that the district court banned 2600 from linking to any
sites that offer DeCSS. As noted earlier, the links that defendants
established on their web site are of several types. In the instant
case, the district court held that one could be enjoined if they:
(a) know at the relevant time that the offending material is on
the linked-to site, (b) know that it is circumvention technology
that may not lawfully be offered, and (c) create or maintain the
link for the purpose of disseminating the technology.
Obviously if 2600 can be enjoined from disseminating DeCSS on its
website, then they should also be enjoined from linking to a website
that automatically begins download. 2600 engaged in the functional
equivalent of transferring the DeCSS code to the user themselves
even though their web server did not deliver the program. Further,
same could be true if 2600 hyperlinks to web pages that display
nothing more than the DeCSS code or present the user only with the
choice of commencing a download of DeCSS and no other content. However,
the real question comes over the links to pages that offer a content
other than DeCSS but that offer a hyperlink for downloading, or
transferring to a page for downloading, DeCSS.
Liability for links may be based upon a determination that the
link was directed to inciting or producing imminent lawless action
and is likely to incite or produce such action. Similarly, laws
of agency liability and conspiracy are applicable song long as they
aid in the illegal behavior. Under such approaches, the relevant
intent would be the intent to cause the harm itself or to facilitate
access infringement under §1201(a)(1)(A).
The district court imposed liability for linking because it believed
that links, like computer programs, are both expressive and functional
in taking one almost instantaneously to the desired destination
with the mere click of an electronic mouse. Even though the district
court recognized that the injunction would chill free speech, given
their high-speed nature, links can be banned. This test used by
the district court would apply to members of the press and professors
who invariably try to disseminate the material. The only defense
would be to claim ignorance, but no person can claim ignorance since
you must physically make a link to the website.
However, links simply save Internet users from having to type or
copy addresses manually. A link is nothing more than speech that
is directing a user to information. A link is analogous to directory
assistance that completes one's telephone call to a desired number
or simple citations in Westlaw or Lexis that allow one to go directly
a cited case when reading another. The underlying theory is that
the media cites to primary source material so that readers can see
the actual text and be more informed about the issues. Thus, the
injunction against linking is a dangerous precedent because it allows
Congress to authorize prior restraints on whole classes of information
published on the World Wide Web, the publication of which is constitutionally
protected in all other media. It is hard to imagine that a newspaper
could be restrained from directing its readers to the web address
of a site that contains DeCSS, or for that matter, the title and
edition of a magazine in which DeCSS was published, or the address
to which to send orders for the T-shirt that has DeCSS printed on
it. In fact, the Supreme Court has long protected the First Amendment
right of the press to publish not only mere links to confidential
information, but the information itself. Further, the press's rights
are not necessarily diminished because someone else initially obtained
the information improperly.
However, the given that defendants initially touted DeCSS as a
way to get free movies, and later maintained the links to promote
the dissemination of the program in an effort to defeat effective
judicial relief, then the injunction may be proper. By purposefully
linking to web sites that post DeCSS for downloading, defendants'
actions exceeded advocacy and crossed the line into unlawful action.
The freedom of association protected by the First Amendment does
not extend to joining with others for the purpose of depriving third
parties of their lawful rights. Consequently, the district court's
anti-linking injunction was entirely proper. However, the mere fact
that a defendant does something that is legal (linking) in reaction
to an adverse previous decision should not be held against them
for another injunction and this is specifically what the district
court did in its decision.
V. Conclusions
If copyright law is to continue to be true to the First Amendment
and its constitutional roots, the grant of additional rights to
copyright holders should foster rather than stifle creative expression.
The DMCA represents an unprecedented expansion of copyright law.
The DMCA's anti-circumvention and anti-trafficking provisions punish
entirely new categories of noninfringing, protected speech, and
create new zones of liability. In conclusion, I will review six
areas that the DMCA changes.
First, obviously some form of legislation is needed to control
digital piracy. While the current Internet structure does not support
wide-scale piracy of movies, in the future bandwidth will increase
and the trade of movies via a pseudo-Napster will begin to boom.
The DMCA is a step in preventing this from happening. It offers
copyright owners the ability to stop infringing programs from being
disseminated, potentially ruining their revenue stream. Further,
it brings the United States into alignment with international law
and various intellectual property treaties.
Second, before the district courts injunction, only direct and
contributory infringement was punishable under the copyright act;
circumventing, linking, and trafficking in copyrighted works was
not, and if the defendant had a legitimate fair use, then there
could be no copyright violation. However, the DMCA has changed the
landscape of copyright law, and the court order has perverted copyright
law even more. Under the district court's ruling, everything but
a fair use direct infringement or contributory infringement is barred.
Quite simply, the injunction proscribes any linking, circumventing
and trafficking in the DeCSS, even if there is a valid fair use.
However, the DMCA clearly states it only applies to proscribe trafficking
and circumventing (along with already existing direct and contributory
infringement) absent a valid defense, such as fair use. The DMCA
mentions nothing about neither linking nor fair use, thus the district
court's opinion perverts Congress's intent and upsets the balance
between the First Amendment and copyright law.
Third, because computer code has many functional aspects, code
can probably be regulated under the O'Brien test so long as its
serves a compelling governmental interest and it is narrowly tailored.
Numerous courts around the country have upheld laws such as the
banning the export of encryption technology, the banning the transmission
of gambling software, and the transmission of viruses. In the instant
case section 1201 of the DMCA was enacted to stop digital piracy
that is already beginning to show up and it does allow for alternative
communication channels. However, the real question is, At what point
is computer code functional and when is it speech? The district
court never fully explained at what point its injunction powers
cease to exist. Although the court only issued an injunction banning
the linking to the object or source code of the DeCSS program, the
Studios only sought that relief. However, in current litigation
in California, the Studios are suing a T-shirt manufacturer who
is publishing the source code on a t-shirt. Can this be banned under
the DMCA? Further, what if the an artists sings the source code
or puts the code into a graphic representation such as a .gif or
.jpg file? These are issues that need to be addressed and were not
by the district court.
Fourth, although the DMCA specifically states in 1201(c)(1) that
fair use shall still be a defense, the district court simply ignored
that section. This again creates an unconstitutional monopoly for
the author that effectively outlaws many fair uses and previous
legitimate rights. Moreover, the six minor exceptions to the statutes
effectively limit all legitimate research. Although the statute
allows for some reverse engineering, it must be done with sole purpose
of identifying elements to achieve interoperability with other programs.
Further, the encryption research exception is also under inclusive
since the researcher must ask for authorization before they begin
and they must be in a legitimate course of study. This effectively
creates a "members only club" for encryption research
that must directly report to the Studios; despite the fact that
many advances in cryptology come from independent persons. Thus,
the Studios through their lobbying have created a monopoly on the
creation of DVD players and digital media. This monopoly allows
them to keep DVD recorders off of the market, even though they would
have abundant uses in personal computing. Moreover, they effectively
stifle technology since the Studios and electronic equipment manufacturers
will have no incentive to create new technology because the current
system in place already has teeth.
Fifth, at some point the line must be drawn with regard to the
powers of Congress, and that line must be drawn here. As stated
above, Congress can only legislate when given the proper authority.
While most of the DMCA probably falls within congressional power,
the unlimited monopoly, in the form of perpetual rights, that the
DMCA effectively gives movie owners does not comport with promoting
the sciences and arts. Simply put, so long as the Studios release
a movie on a DVD with CSS protection they can prevent users from
making legitimate fair uses of the work. Moreover, this would still
hold true even after the copyright expires. The copyright holder
will have the right to prosecute anyone who decrypts his or her
work 200 years from now. Thus, the DMCA is unconstitutional because
it breaks the careful balance between access to public domains works
and limited monopolies for authors. Moreover, the DMCA effectively
allows the Studios to divide up the worldwide market. Region coding
is a technological scheme dividing the world into seven regions
(markets) and making a DVD purchased in one part of the world unusable
anywhere else. Region Coding is accomplished by placing a certain
key on the DVD disk and the DVD player. The Player and disk must
have the same corresponding key to enable the movie to be viewed.
Thus, disks purchased in France or in Asia would not be playable
in the United States, and vice versa. The Studios contend that this
is done to allow for different release times for different areas
of world. However, it also has the effect of allowing the Studios
to divide up countries and charge a higher price in each individual
country. Again it could be argued that the DMCA is being used to
extend the Studio's power base into illegal areas, such as antitrust.
Finally, the district court's ban on linking is probably unconstitutional
because it is a prior restraint on free speech and the court went
beyond the scope of the statute to outlaw linking. As stated before,
linking is nothing more than a quick and easy way to point to information.
If it would not be illegal to tell someone where to get information
in the real world or in print, so why is it illegal to link to another
page? The district court made an impermissible jump that linking
is trafficking in technology, even though trafficking is never defined
in the statute. The court's rationale was that linking provides
a quick and easy access to the information and therefore speed is
the determining factor. However, simply because information is readily
accessible does not mean someone pointing to it should be punished.
While the Studios may not like the published technology, they should
be going after the content publishers and not the media who simply
informs the public of where to find information.
Bibliography
Links to info:
http://www.lemuria.org/DeCSS/
http://www.phillipsnizer.com/Internetlib.htm
http://www.softwareprotection.com/tableofcontents.html
http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html
http://www.openlaw.org/DeCSS
http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html
Statutes
The Digital Millennium Copyright Act of 1998, 17 U.S.C. §§
1201-1205
The Copyright Act of 1976, 17 U.S.C., §§ 101-810
Cases
Universal City Studio's, Inc., et al v. Shawn Reimerdes, 2000 Civ.
0277 (S.D.N.Y., Feb. 2, 2000).
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994).
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
Bernstein v. Dep't of Justice, 176 F.3d 1132, reh'g en banc granted
and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999)
Stewart v. Abend, 495 U.S. 207, 236 (1990).
Sony Corp. of America, Inc. v. Universal City Studio's, Inc., 464
U.S. 417 (1984)
Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.
1992).
United States v. Mendelsohn, 896 F.2d 1183 1185 (9th Cir. 1990)
Brown v. Hartlage, 456 U.S. 45, 55 (1982)
United States v. Rowlee, 899 F.2d 1275, 1280-81 (2d Cir. 1990)
United States v. Kelley, 254 F. Supp. 9, 14-15 (S.D.N.Y. 1966)
Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991)
United States v. Morris, 928 F.2d 504, 505 (2d Cir. 1991).
Brandenberg v. Ohio 395 U.S. 444, 447 (1969)
Landmark Communications v. Virginia, 435 U.S. 829, 840 (1978)
The Florida Star v. B.J.F., 491 U.S. 524, 526 (1989)
Smith v. Daily Mail Publishing Co., 443 U.S. 97, 98 (1979)
New York Times v. United States, 403 U.S. 713, 714, 740 (1971)
Appeal Briefs
2600: The Hacker Quarterly:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010319_ny_eff_appeal_reply_brief.html
The Studios and MPAA :
http://cryptome.org/mpaa-v-2600-bpa.htm
The Department of Justice:
http://cryptome.org/mpaa-v-2600-usa.htm
Computer Scientists:
http://cryptome.org/mpaa-v-2600-bac.htm
News Media:
http://www.thefirstamendment.org/linkingamicus.html
Profs. Larry Lessig and Yochai Benkler: http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_2profs_amicus.html
Cryptographers:
http://eon.law.harvard.edu/openlaw/DVD/NY/appeal/000126-cryptographers-amicus.html
Law Professors: http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_lawprofs_amicus.html
ACLU:
http://www.aclu.org/court/corley.pdf
Fair Use Interests: http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_edu_amicus.html
ACM:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_acm_amicus.html
Arnold Reinhold:
http://cryptome.org/mpaa-v-2600-agr.htm
RIAA, NFL, and other Amici of the Studios: http://www.mpaa.org/Press/DeCSSFinalAmicusbrief.htm
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