Lott & Fischer is an intellectual property law firm in Coral Gables, Florida. The firm concentrates its practice exclusively in intellectual property law, including U.S. and international patent, trademark, copyright, unfair competition, Internet, and entertainment law and related litigation.
"The main purpose of copyright technology
and copyright law is to keep the honest people honest."
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.
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.
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.
Links to info:
The Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 1201-1205
The Copyright Act of 1976, 17 U.S.C., §§ 101-810
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)