EFF/2600 Appeal Brief in MPAA v. 2600 Case

(officially Universal v. Reimerdes), Jan. 19, 2001

Corporate Disclosure Statement

2600 Enterprises, Inc. is a corporation organized under the laws of the State of New York. It has no corporate parents and no publicly held company owns 10% or more of its stock.

Table of Contents

Table of Authorities

STATEMENT OF SUBJECT MATTER JURISDICTION

The District Court had subject-matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).

2600 Magazine seeks review of the Opinion of the District Court dated August 17, 2000, as amended by Order dated September 6, 2000 (A-2597), and the Amended Final Judgment of the District Court dated August 22, 2000 (A-2690), which fully and finally resolved the cross motions of the parties to vacate and to expand the preliminary injunction and granted plaintiffs-appellees the permanent injunction they sought in their Second Amended Complaint (A-37-49). This Judgment disposed all claims with respect to all parties. Accordingly, this Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Appellants filed a timely Notice of Appeal from the August 22, 2000 Amended Final Judgment on September 18, 2000 (A-2693).

ISSUES PRESENTED FOR REVIEW

2600 Magazine seeks review of the following legal issues:

1. Whether the District Court erred in interpreting §1201 as allowing an injunction to prevent a member of the media from publishing truthful information about an issue of public importance?
2. Whether the District Court erred in interpreting §1201 as allowing an injunction to prevent a member of the media from linking to the same information?
3. Whether the District Court erred in creating a new category of lesser protected expression based upon its “functionality”?
4. Whether the District Court erred in interpreting §1201 as not allowing a fair use defense?

PRELIMINARY STATEMENT

Appellants-Defendants here appeal the reported Opinion and the Amended Final Judgment imposing a permanent injunction against Appellees’ uttering speech with a specific content that were issued by Judge Lewis A. Kaplan. The opinion is reported at Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y.2000) (hereinafter “Universal”)

STATEMENT OF FACTS

B.  DeCSS

At the bottom of this case is a computer program called DeCSS, written largely by a 15 year old Norwegian boy named Jon Johansen and first published on the Internet by him. Universal at 311. DeCSS decrypts the movies sold by the Studios on DVDs. Id. at 308, 311. It does this by circumventing an encryption program called CSS (“Contents Scramble System”) that has been placed on DVDs. Id. CSS is designed to prevent CSS-encoded DVDs from being played on DVD players that are not equipped with CSS, and to prevent any use of the material on a DVD other than playing it. A-329 at 750:20-751:1. See also A-2549-54.

CSS checks to see if the player attempting to play the DVD has certain “keys” indicating that it has been duly licensed by the DVD CCA.¹ Normally, if the player does not contain the keys, the DVD will not play; if the player does contain the keys, the DVD will play. Id. at 310. See also, A-147 at 210:6-13. Importantly, the CSS system makes no determination whether the DVD was lawfully obtained or whether the viewer is legally authorized to view the DVD. See, e.g., A-654-55 at 132:10-133:19.

DeCSS decrypts the data on a DVD and stores it. The decrypted data, usually a movie and related information, can then be played on any device, including one that does not contain the matching keys. Universal at 308. Any manipulation or use of the text, including both noninfringing uses and illegal copying, requires a series of additional steps and the application of additional software “tools.” Id. at 313-314. Mr. Johansen, who first published DeCSS, is not a defendant in this action, nor is anyone who actually used the program.

Mr. Johansen testified at trial, along with other witnesses, that DeCSS was created through a process of reverse engineering with the goal of creating a DVD player that would interoperate with CSS-protected DVDs on open source Linux-based computer systems. See, e.g., A-297-98 at 619:19-626:16.² DeCSS was thereafter used by a coalition of programmers to develop just such a tool. A-402-04 at 950:10-960:4; A-147 at 207:24-208:10. But this is not the only noninfringing use for DeCSS. The record demonstrates that circumventing CSS is necessary to permit access to the data on a DVD for any fair use purpose (A-1891(at 17),
A-1901-03; A-387-92), or even to avoid the regional encoding placed on DVDs, which prevents a person living in the United States, for example, from viewing a DVD purchased in Europe. A-963-64 at 206:24-210:11.

B.  2600 Magazine

2600: The Hacker Quarterly, and its editor, Eric Corley (hereinafter collectively referred to as “2600 Magazine”), have reported on political and technical issues concerning computers and electronic security for over 16 years. A-337 at 779:1-780:10; A-340-43. Since 1995, 2600 Magazine has also published on the Internet.

Rather than seek relief from the author or primary publisher of the program, the Studios chose to sue only one of the many magazines and other media that published or linked to the program as part of the coverage of the ongoing political and legal debate about copyright in the digital age.³

The Studios have not stated why they chose to sue 2600 Magazine. In fact, the magazine was relatively late in covering the story. 2600 Magazine first published the a story containing the program in November, 1999, over one month after it was published by its young Norwegian author and republished elsewhere by many others. Universal at 311-312; A-371 at 822:23-25. There is no evidence that 2600’s publication of DeCSS was different or more widespread than prior or subsequent publications by others.

What is clear is that the magazine has been a consistent and vocal opponent of the Studios’ use of CSS, since 1997 when it covered the first reports that CSS had been cracked. In addition, the magazine’s publisher is somewhat unconventional, using a nom de plume, “Emmanuel Goldstein.” 2600 Magazine has also traditionally been a gadfly in the field of computer security, publishing information that often embarrasses security professionals and others. These factors made 2600 Magazine a convenient and perhaps seemingly easy target for the Studios in their attempt to set a precedent with much broader ramifications than the facts here.

SUMMARY OF ARGUMENT

This appeal seeks review of a permanent injunction issued by the District Court requiring 2600 Magazine’s online version to stop publishing part of a news story. The District Court also enjoined the magazine from any further publication of, or even linking to, the offending text. The text was the primary source material for the story; the same material was cited by the New York Times, the San Jose Mercury News and even CNN, a subsidiary of Appellee Time Warner in their coverage of the story. Leading copyright scholar Jane Ginsburg of Columbia Law School has also cited it, as have other legal and computer science academics. Hundreds, perhaps thousands of persons interested in the legal and political debate described in the story also published or linked to the text. Currently, many of those other persons still maintain the text or links to it on their web sites.

The District Court issued this unprecedented news injunction based upon a statute enacted in 1998 to help prevent copyright infringement. But Appellant 2600 Magazine has not been accused of infringement or even contributory infringement. Moreover, Appellees, the eight major motion picture studios (“Studios”), stipulated that they had no evidence that 2600 Magazine’s publication had led anyone to infringe their copyrights.

Instead, 2600 Magazine was found liable for publishing a technology that might someday be used by someone to access a movie without the “authority” of the copyright owner. The District Court acknowledged that the published material, the text of a computer program called DeCSS that decrypts the data on DVDs, has substantial noninfringing uses, including scholarly study of cryptography, enabling fair use of copyrighted movies, and development of competing DVD players. Copyright owners have never had the right to prevent such uses. The District Court’s interpretation of §1201 of the Digital Millennium Copyright Act, 17 U.S.C. §§1201, et seq., (“DMCA”), however, now gives them this right.

In order to uphold this injunction, this Court will need to affirm four entirely unprecedented portions of the District Court’s decision. The upshot of these holdings is that the offense of “providing” technologies or instructions that could be used to assist in copyright infringement is treated much more stringently than copyright infringement itself. This upside-down structure reaches far beyond the bounds of copyright law, threatening liability for members of the media, scientific speakers and fair users, all of whom have traditionally enjoyed broad First Amendment protection for their speech. The erroneous findings of law are:

1. That the press can be enjoined from publishing truthful material because others, unrelated to the publisher, may someday use that material to violate the law.
2. That the press may be enjoined from even linking to such material.
3. That a lesser degree of First Amendment protection applies to expression that is "functional."
4. That Sect. 1201 trumps any right of fair use of digital works by preventing publication of technologies that allow fair users to have access to the works.⁴

Whether taken singly or collectively, the District Court’s holdings, if adopted by this Court, will dramatically change existing law.

This result is not required. To the contrary, the statute expressly provides that it shall not “diminish any rights of free speech or the press” (§1201(c)(4)) and shall not affect the “rights, remedies, limitations, or defenses to copyright infringement, including fair use” (§1201(c)(1)). Inexplicably, the District Court ignored these two provisions in its ruling. Moreover, by limiting “authority of the copyright owners” under §1201(a)(3)(A) to the “authority” granted by copyright law, the statute can be construed to avoid conflict with the Constitution.

But in lashing out at a speaker whom it obviously found distasteful, the District Court did great violence to both copyright law and the First Amendment. The strong language and sharp tone of the District Court’s opinion, including suggesting that 2600 Magazine’s position would make the constitution a “suicide pact;” likening its Internet publication to a “disease” and comparing the publication of computer code to the expression of an “assassin” (Universal at 305, 331, 304) indicate that, as often occurs in First Amendment cases, the District Court allowed its feelings about the individual speaker before it to color its judgment of his right to speak.

Its decision does much more than punish 2600 Magazine, however. If permitted to stand by this Court, it will punish and chill speech by many others, including the press, scientists and fair users. It will also allow §1201 to be used to prevent consumers from such mundane, noninfringing activities as playing DVDs lawfully purchased in Europe on an American DVD player.

In short, by failing to limit copyright owners’ ability to prevent access to their works, the District Court’s interpretation of §1201(a)(2) grants them powers far beyond those allowed by copyright law or the First Amendment, placing the statute on a collision course with the Constitution. A reasonable interpretation of the statute, however, would allow it to remain a powerful tool to prevent copyright infringement, while also preserving freedom of expression in the digital age.

STATUTORY FRAMEWORK

A.  §1201 Indirectly Tries to Prevent Copyright Infringement by Targeting Tools that Could be Used to Assist in Copyright Infringement

In 1998, Congress passed the portion of the statute at issue here as part of the Digital Millennium Copyright Act (“DMCA”). Arising from fear of greater copyright infringement of digitally distributed works, 17 U.S.C. §1201 et seq. (“§1201”) creates a new, indirect method of protecting against copyright infringement of digital works based on the assumption that copyright owners will use technological measures to protect them. The sections of §1201 at issue here target the providing of technologies that circumvent these technological measures.

As interpreted by the District Court, §1201 bans the dissemination of circumvention technologies, except for limited, narrow exceptions. 17 U.S.C. §1201(a)(2)⁵ states:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

The DMCA defines:

"circumvent a technological measure" as 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 owner. Sect. 1201(a)(3)(A);

and

"effectively controls access to a work" as when the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. Sect. 1201(a)(3)(B)

(Emphasis added). Congress characterized the harm targeted by §1201(a) as “the electronic equivalent of breaking into a locked room in order to obtain a copy of a book.” H.R. Rep. 105-551, pt. 1, at 17 (1998); accord 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §12A.03[D][1] (1999)(hereinafter “Nimmer”). In doing so, Congress recognized that this prohibition only applies to unauthorized access. H.R. Rep. 105-551, pt. 1, at 18 (1998)(persons would be able to circumvent in order to make fair use of works that they have lawfully acquired). See also infra, pp. 63-66.

Numerous existing technological measures do check for a person’s “authority” to view the work before granting access. For example, password systems such as those used by Lexis and Westlaw assure that the person seeking entry has paid for or otherwise received the legal authority to access a web site or other digital content. As noted above, CSS does not perform this task. CSS simply serves to ensure that the DVD player has been licensed. This, of course, has nothing to do with whether the DVD being played was pirated or whether the person attempting to view the DVD has legal authority to do so.

B.  1201 Explicitly Provides that It Should Not Impinge on Free Speech, Fair Use or other Portions of the Copyright Bargain.

During the legislative debate, concerns were raised about how 1201 might damage the public side of the copyright bargain, including fair use and free speech.⁶ In response, Congress inserted specific provisions into §1201 to prevent interpretations that would hurt these vital Constitutional interests. These are:

(c)(4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications or computing products.

and

(c)(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use under this title.

(Emphasis added). Curiously, the District Court failed even to mention these provisions. Nor did it discuss the express limitation Congress placed on its power to grant injunctive relief in §1203(b)(1): “in no event shall [the Court] impose a prior restraint on free speech or the press protected under the 1^st amendment to the Constitution.” Instead, it held that the admitted impacts to free speech and press were “incidental” (Universal at 330) and that the fair use defense was inapplicable. Id. at 322-324. It made no attempt to explain how these extraordinary conclusions could be consistent with (c)(4), (c)(1) or §1203(b)(1).

ARGUMENT

I.  THE PUBLICATION OF DeCSS IS AN ACT OF EXPRESSION PROTECTED BY THE FIRST AMENDMENT

There is no dispute that the publication of DeCSS is an act of protected expression under the First Amendment. The District Court held:

[I]t cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine. . . As computer code -- whether source or object -- is a means of expressing ideas, the First Amendment must be considered before its dissemination may be prohibited or regulated.

Universal, 111 F.Supp.2d at 326 (Emphasis added). In fact, 2600 Magazine is only one of hundreds, perhaps thousands of entities and people who have posted or linked to DeCSS on the Internet for a variety of free speech-related reasons:

• Dozens of other news organizations made a similar⁷ journalistic decision, including the New York Times, San Jose Mercury News and CNN, a division of Appellant Time Warner. A-57-59 (listing Internet addresses of news stories run by these media organizations, and many others, which link directly to DeCSS or which link to sites that link to DeCSS).
• Renowned copyright scholar Jane Ginsburg of Columbia Law School linked to sites that published DeCSS in order to help her students understand the controversy surrounding this litigation. http://www.law.columbia.edu/course_00S_L6341_001/circumv.shtml (visited Jan. 12, 2001).
• Yet others have downloaded and/or distributed DeCSS in order to engage in constitutionally protected reverse engineering activities intended to develop a Linux-based open-source DVD player. A-1882-83; A-297 at 619:22-620:3, 620:24, 621:18; A-403 at 951:9-953:5; A-1245 at 28:70, 29:14; see generally, A-1401-1881 (Studios’ selection of messages found on LIVID (Linux DVD player development group) forum).
• Still others are promoting dissemination of DeCSS as a means to enable constitutionally protected fair use and private uses of DVD movies, such as playing lawfully purchased DVDs on their platform of choice or using film clips in a digital computer video presentation. See. Id.; A-1949-59.
• Others who have posted, linked to, distributed or downloaded DeCSS include mathematicians and computer scientists from such institutions as Princeton and Carnegie Mellon University and the University of North Carolina. They did so as part of constitutionally protected scientific investigation and discourse about the cryptographic techniques behind both CSS and DeCSS. A-1889-90 at ¶14 (websites listed); A-2254-69.
• Some members of the computer programming and Internet community published DeCSS to protest the Studio’s legal attacks against 2600 Magazine and others and to express their fear that the Studios will use §1201 to implement a system of absolute control over copyrighted works, including deployment of pay-per-use systems. Id.; A-2254; A-2301; A-2305.

In sum, the publication of DeCSS intersects the First Amendment at three distinct points. First, 2600 Magazine here published DeCSS as part of its normal practice as a news magazine, implicating freedom of the press. See Section III. Second, DeCSS code is itself protected expression, read, reviewed and used by cryptographers and computer scientists as part of the normal scientific method for developing and testing cryptographic methodologies and teaching programming and cryptography. Third, the publication of DeCSS allows users to fair use of copyrighted material, a right protected by both the First Amendment and the Copyright Clause.

Accordingly, the question presented here is not whether First Amendment scrutiny is required, but rather whether the application of the statute here deserves significantly lower scrutiny than that applicable to statutes restricting the publication of truthful information. In the eyes of the District Court, the possibility that DeCSS might be used for illegal purposes is enough to justify a ban on its publication. But as shown below 2600 Magazine cannot, consistent with the First Amendment, be held liable on this theory any more than the writer or publisher of instructions for using a VCR to recording TV broadcasts can be held liable based upon concerns that others will use those instructions to make infringing copies of movies.

II.  STANDARD OF REVIEW

In First Amendment cases, appellate courts have "a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court." Hurley v. GLIB, 515 U.S. 557, 567 (1995) ("the reaches of the First Amendment are ultimately defined by the facts it is held to embrace") (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 503 (1984)). Thus, this case is subject to de novo review of both the facts and the law applied by the District Court.

III.  THE FIRST AMENDMENT IS VIOLATED BY AN INJUNCTION PREVENTING POSTING AND LINKING TO DeCSS IN THE COURSE OF A MAGAZINE'S NEWS COVERAGE.

A cornerstone of the First Amendment’s freedom of the press is the uninhibited right to publish lawfully obtained truthful information. Here, there is no dispute that DeCSS is “truthful” and concerns a matter of great public significance. 2600 Magazine published DeCSS as part of its journalistic mission to inform its audience and the general public.⁸

The applicable First Amendment doctrine is well-settled: "[I]f a newspaper lawfully obtains truthful information about a matter of public significance, then [the government] may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (government interest in the privacy of rape victims), quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979) (government interest in anonymity of juvenile arrestees); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) (confidentiality of judicial review proceedings). These established precedents make it clear that the injunction requiring 2600 Magazine to cease its publication of DeCSS must survive strict scrutiny.

The District Court refused to apply strict scrutiny here, which required it to hold that the application of §1201(a)(2) here does not restrict expression “because of its message, its ideas, its subject matter, or its content." Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972); Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U. S. 530, 537 (1980) (“The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic”).

Yet §1201(a)(2) plainly categorizes banned “technologies,”⁹ including computer programs, based upon their subject matter and ideas. The "technological measures" targeted by §1201(a)(2) largely relate to the subject of cryptography. The speech at issue in this case – DeCSS – is a computer program that teaches one interested in the science of cryptography how the data contained on DVDs is encrypted.¹⁰ See A-3-29-30 at 748:17-751:b; A; see also Andrew W. Appel and Edward W. Felten, Viewpoint: Technological Access Control Interferes with Noninfringing Scholarship, 43:9 Communications of the ACM 21-23 (September, 2000). The District Court itself acknowledged that its decision would have an “impact on the dissemination of programmers’ ideas.” Universal at 329. In short, DeCSS runs afoul of §1201(a)(2) because of what it says. The easiest way to see this is to recognize that if it were a program that expressed anything else, such as how to factor prime numbers or spell check a legal brief, providing it would not be forbidden. Thus this application of §1201 targets 2600 Magazine because of the subject matter and content of its publication.

Moreover, since computer programs are sets of instructions, restricting the “functionality” of programs also restricts their content. Put more bluntly: if you force a programmer to change what a program does, you inevitably force her to change what it says.¹¹ Like a law authorizes injunctions to prevent an artist from publishing a work that “functions” to upset audiences while allowing publication of a description of the work or a less upsetting work, the District Court’s interpretation of §1201 requires changes in the content of publications. In computer science, as in art, it is not possible to restrict the form of expression “without also running a substantial risk of suppressing ideas in the process.” Cohen v. California, 403 U.S. 15, 24, 26 (1971).

The various exemptions to §1201 also support the conclusion that it discriminates on the basis of speech content. See City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) ("Exemptions from an otherwise legitimate regulation of a medium of speech. . . quite apart from the risks of viewpoint and content discrimination. . . may diminish the credibility of the government's rationale for restricting speech in the first place.") (citation omitted). This is most clearly seen in the §1201(g) exemption for "encryption research." By specifically exempting a single field of academic research from the general prohibitions of §1201, Congress demonstrated that it knew that §1201(a)(2) regulates the subject area of cryptography.¹²

In addition, the §1201(f) exemption for reverse engineering computer programs only for "interoperability" creates a subject-matter restriction because ideas that pertain to other subjects are barred. Thus, if reverse engineering reveals ideas that can help others develop new encryption programs or reveals that CSS can damage DVD players or reveals how to override the regional encoding—all of which would otherwise be publishable as revealed through fair use¹³ – those ideas could not be published since they do not relate to the subject of “interoperability.”

Congress clearly designed §1201(a)(2) to disfavor speech of a particular content: speech that discusses or explains how to circumvent "technical measures." It also understood that §1201(a)(2) restricts research on the subject of cryptography and all but one subject that could be revealed through reverse engineering. Here, the statute has been applied to a magazine that has historically printed information about security systems to prevent it from publishing information about a particular type of security system. The District Court’s conclusion that §1201(a)(2) is content-neutral simply flies in the face of the statute's plain language and its application here.

A.  The District Court's Injunction Against Publication Of DeCSS Fails Strict Scrutiny.

Under strict scrutiny, a statute may only be sustained if the chosen means are necessary to further a compelling government interest, and there are no less restrictive means available. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)(“The Government may . . . .regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest”). 2600 Magazine does not dispute that §1201 seeks to further one legitimate government interest. The District Court stated this as “protect[ing] . . . copyrighted works stored on digital media from the vastly expanded risk of piracy in this electronic age.” Universal at 330.

Protection of copyright owners, however, is not the only legitimate interest at stake in copyright law. Because copyright law has a specific constitutional purpose — to promote progress in the arts and sciences — courts have long found it necessary to accommodate both the owners’ interests and the interests of the public to use and benefit from access to copyrighted works. ¹⁴ See, e.g., Sony v. Universal City Studios, 464 U.S. 417, 429 (1984) (“a difficult balance [must be struck] between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one and, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.”). Here, even if the District Court’s injunction furthers the government interest in protecting copyright owners, it must also be evaluated for the impact it has on the equally important government interest in securing public use and benefit from copyrighted works.

Furthermore, unlike other copyright cases addressing First Amendment defenses, this case does not involve any copying of copyrighted expression. In the absence of any copying, the District Court was forced to hold that the “injury” element required by §1201 was satisfied by the mere publication of “the readily available means of circumventing the CSS access control system on their DVDs.” Universal at 341. Thus, because the Studios could not show either direct or indirect harm from publication of DeCSS, the District Court effectively held that because DeCSS was publicly disseminated on the Internet, which reaches an enormous audience, the feared harm was likely to result.

This reasoning contravenes the principle that “[w]here important First Amendment interests are at stake, the mass scope of disclosure is not an acceptable surrogate for injury.” Florida Star, 491 U.S. at 540 (statute prohibited publication in an “instrument of mass communication,” but not by other means). For instance, the District Court analogized the injury due to publication of DeCSS to the publication of a bank vault combination in a national newspaper, indicating that such publication could be restrained. Universal at 315. The District Court, unfortunately, is mistaken. In Chicago Lock v. Fanberg, 676 F.2d 400 (9th Cir. 1982), the defendant was sued on a trade secret theory for selling books that contained lock key codes that enabled persons to more easily duplicate keys to plaintiff’s locks. The Ninth Circuit found that these books could be published because the lock key codes were obtained through reverse engineering.

Equally important, Florida Star strongly suggests that enjoining further publication of DeCSS at this point does not sufficiently further the governmental interest to prevent infringement. 2600 Magazine was not the first or even the fiftieth to publish DeCSS and both it and similar programs remain freely available on the Internet.¹⁵ On these facts, it is unlikely that, since DeCSS was published by so many persons other than 2600 Magazine that “a meaningful public interest is served by restricting its further release by other entities, like the press.” Florida Star, 491 U.S. at 536.

B.  Even Under Content-Neutral Scrutiny, The Ban On DeCSS Publication Is Not Sufficiently Tailored.

Even accepting the District Court’s determination that enjoining 2600 Magazine’s publication of DeCSS constituted a content-neutral restriction on speech, the District Court incorrectly applied the relevant test.¹⁶ Under it, restrictions must be "narrowly tailored to serve a significant governmental interest" and "leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); see also City of Erie v. Paps A.M. 120 S.Ct. 1382 (2000)(plurality op.). The District Court improperly applied both portions of the test.

First, the District Court failed entirely to consider the availability of alternative channels of expression for DeCSS. This Court has made explicit that failure to consider this element is an abuse of discretion in considering the issuance of an injunction under a content-neutral speech regulation. Bery v. City of New York, 97 F.3d 689, 697 (2d. Cir. 1996)(finding unconstitutional city’s limitation on licenses for sidewalk artists), cert. denied, 520 U.S. 1251 (1997). The District Court’s decision eliminates all channels for publishing DeCSS, since it prevents “providing” or making it “available” to the public. Moreover, the District Court held that neither the exemption for reverse engineering, §1201(f), nor the exemption for security research, §1201(g), permits publication. Universal at 320-321.¹⁷ For this reason alone the decision below should be reversed.

Second, the District Court failed to consider whether the statute’s defenders met their evidentiary burden to show that it does not "burden substantially more speech than is necessary to further the government's legitimate interests." Turner Broadcasting Sys. et. al. v. FCC, 512 U.S. 622, 662 (1994) (citation omitted). In order to shoulder this burden, the Studios had to demonstrate that §1201 "eliminate[d] the exact source of the evil it sought to remedy." Members of the City Council of the city of Los Angeles et. al. v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984); Ward v. Rock against Racism, 491 U.S. 781, 799 n. 7 (1989)(loudness regulation "focus[ed] on the source of the evils the city seeks to eliminate . . . without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils").

As explained in Section V below, in addition to allegedly eliminating the evil of potential copyright infringement, banning the publication of DeCSS, as the District Court conceded, effectively bans fair use, limits noninfringing uses and prevents access to material in the public domain and uncopyrightable material protected by “technological measures.” See Universal at 324. Many of these uses are themselves protected expression and none of them constitute copyright infringement. As construed by the District Court, §1201(a)(2) “ban[s] or significantly restrict[s] a substantial quantity of speech that does not create the same evils.” In short, as applied by the District Court in this case, §1201(a)(2) does not "respon[d] precisely to the substantive problem which legitimately concern[ed]" the government. Taxpayers for Vincent, 466 U.S. at 810.

C.  The District Court's Test For Linking Liability Violates The First Amendment.

The District Court created even more dangerous First Amendment law for hypertext links (“links”). Links are pieces of text analogous to case citations in a brief that point to information by providing its location. Under the Supreme Court’s characterization of the World Wide Web as a “vast library” (ACLU, 521 U.S. at 853), links are “what unify the Web into a single body of knowledge.” Universal at 340 (quotation marks and citation omitted).

The District Court’s decision, however, permits anyone to be enjoined from linking to sites presenting anti-circumvention technology if the linker intended to disseminate the technology. Id. at 341. This test would apply to members of the press like the New York Times, the San Jose Mercury News and CNN and to law professors like Jane Ginsburg, all of whom have linked to DeCSS. See supra at pp. 15-16. This test is inconsistent with First Amendment law.

1.  The District Court's Analysis of Links Exposes The Fallacy Of "Functionality"

The District Court imposed liability for linking because it believed that links, like computer programs, are both expressive and functional in “tak[ing] one almost instantaneously to the desired destination with the mere click of an electronic mouse.” Universal at 339. Such links, however, simply save Internet users from having to type or copy addresses manually, like directory assistance that completes one’s telephone call to a desired number or the citations in Westlaw or Lexis that allow one to go directly a cited case when reading another. See Tim Berners-Lee, Weaving THE Web: The Original Design AND Ultimate Destiny OF THE World Wide Web BY Its Inventor 140 (HarperCollins 2000, paperback) (1999) (“[M]aking the reference with a hypertext link is efficient, but changes nothing else”).

This reasoning exposes the danger of “functionality” as a legal concept. See infra, pp. 32-38. The District Court found links to be “functional” and thus unworthy of full First Amendment protection because they provide information efficiently and quickly. But providing information is the essence of the First Amendment. Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (“Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.”), quoting Ex parte Jackson, 96 U.S. 727, 733 (1878); City of Lakewood v. Plain Dealer, 486 U.S. 750, 762 (1988) (rejecting as “meaningless distinction” between machine and hand distribution of newspapers). The Internet is a fully protected medium of expression precisely because it is cheap and fast. ACLU, 521 U.S. at 869. Using “functionality” of links as a basis for lowering First Amendment protection for them improperly turns this virtue into a vice.

2.  The District Court's Test Is Unnecessary And Unjustifiable.

That linking makes the Internet more efficient does not change traditional First Amendment analysis, under which speech may not be restricted merely because it might cause harm. The harm must be “real, not merely conjectural,” the speech restriction must “in fact advance” the government interest, and the remedy must not “burden substantially more speech than is necessary to further the government's legitimate interests.” Turner Broadcasting, 512 U.S. at 664-665.

Using settled law, 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.” Brandenberg v. Ohio 395 U.S. 444, 447 (1969). Similarly, laws of agency liability and conspiracy applicable to “verbal acts” that aid illegal behavior can be applied to links as well.¹⁸ Under such approaches, the relevant intent would be the intent to cause the harm itself, i.e., to facilitate access infringement under §1201(a)(1)(A).

That was not the case here. In fact, the District Court acknowledged that imposing liability for linking was of questionable value to copyright owners. Universal at 340 (noting that choosing to sue linkers would be generally less effective than suing “directly against the sites that post.”). It nevertheless decided that linking liability of 2600 Magazine was justified because the Studios might be unable to sue foreign sites that post DeCSS. Ibid. The Court’s desire to punish despised speakers outside its jurisdiction cannot justify imposing liability on innocent speakers inside its jurisdiction.

3.  The District Court's Test For Linking Liability Is Inadequate

The District Court correctly observed that imposing liability for linking to circumvention technology like DeCSS creates a serious risk of chilling “the free exchange of ideas and information.” Universal at 340. It sought to “limit the fear of liability of web site operators” by modeling a test after the “actual malice” test for defamation. Id.¹⁹

Unfortunately, it failed. The intent of the media is almost invariably to “disseminate” the material. No publisher could plausibly claim ignorance of the linked-to technology’s presence or lack of intent to disseminate, especially given that the very fact of linking is evidence of such knowledge and intent. Id. at 341. n. 257. As a practical matter, then, the test asks only one question: did the linker know that the technology was a circumvention technology? Id. at 341. And once a court has deemed the technology to “offend” §1201(a)(2), a publisher could rarely claim that it lacked constructive knowledge of that fact.

Media speakers cite to primary source material so that readers can see the actual text that underlies the dispute or issue being reported. This Court’s “neutral reportage” doctrine recognizes such reporting as fully legitimate. Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d. Cir. 1977). For example, the New York Times recently purposefully “disseminated” the entire text of the Supreme Court’s decisions in Bush v. Gore in addition to publishing its own extensive analysis.²⁰ Under the District Court’s test, any intentional links that “disseminate” material later deemed to be offending would create liability, as it did here for 2600 Magazine. Thus, despite the seemingly comforting rhetoric, the District Court’s test reaches ordinary news reporting.²¹

D.  The Statute Itself Provides that It Shall Not Be Applied to Abridge Freedom of the Press.

Yet §1201 need not have such a dramatic impact on the press. In fact, as noted above, §1201(c)(4) expressly provides: “[N]othing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.” See also §1203(b)(1). Unfortunately, the District Court ignored this provision, violating the "settled rule that a statute must, if possible, be construed in such fashion that every word has operative effect," United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). This failure alone justifies reversal and remand. Properly applied, this provision would plainly protect 2600 Magazine’s linking here, as well as that of many others.

IV.  THERE IS NO FIRST AMENDMENT JUSTIFICATION FOR DOWNGRADING THE PROTECTION FOR "FUNCTIONAL" EXPRESSION.

In order to avoid application of the strict scrutiny required for injunctions issued against members of the press, and to justify its application of intermediate scrutiny instead, the District Court created a new category of lesser protected speech. This new category was based upon its observation that DeCSS “does more . . . than convey a message . . . it has a distinctly functional, non-speech aspect in addition to reflecting the thoughts of programmers.” Universal at 328-329. In other words, the court agreed with Appellants that DeCSS is protected speech, but held that the speech was unworthy of full First Amendment protection because DeCSS is written in a computer language rather than the English language (or mathematics or iambic pentameter) allowing it to “function.” See e.g. Universal at 328-329.

If upheld, the District Court’s creation of a new category of “functional” speech would present the first reduction of protected speech since the beginning of modern First Amendment jurisprudence. This is because the Supreme Court in
recent years has not been misled by claims that new technologies or media should merit lower level scrutiny than older technologies. See, ACLU, 521 U. S. at 869 (finding the Internet to be a fully protected medium of expression); United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000) (strictly scrutinizing content-based regulation of cable TV). Moreover, as shown below, “functionality” cannot justify issuance of a wide-ranging injunction issued against the media reporting on a legitimate issue of public concern.

A.  "FUNCTIONALITY" IS UNDEFINED.

People can clearly use software like DeCSS on a computer to produce effects. But software is not, in this sense, distinctly different from any other speech that instructs people how to do things. A book that explains Fourth Amendment rights could well make it harder for police officers to obtain evidence without a search warrant from persons who have committed crimes.

A threshold problem is that the District Court failed to define “functionality.” The term cannot merely mean that the speech is useful, since instructions, recipes and manuals are useful and fully protected by the First Amendment. Much speech described in terms of content can also be characterized in terms of “functionality.” One could say that charitable solicitations "function to raise money," but it's well settled that charitable appeals involve a variety of speech interests, including the communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes. Village of Schaumburg v. Citizens For Better Environ., 444 U.S. 620, 632 (1980); accord, Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 959 (1984) ("charitable solicitations are so intertwined with speech that they are entitled to the protections of the First Amendment").

Nor can functionality mean that the speech could cause harm. "Much speech is dangerous. Chemists whose work might help someone build a bomb, political theorists whose papers might start political movements that lead to riots, speakers whose ideas attract violent protesters, all these and more leave loss in their wake." American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323, 333 (7th Cir. 1985), aff'd mem 475 U.S. 1001 (1986). See also Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992)(permit fee based on the capacity for a march to cause violence was content-based).

Moreover, there is no intellectually honest way to distinguish “functional” expression from “non-functional” expression, even for the text of computer programs. The District Court itself acknowledged “[T]he path from idea to human language to source code to object code is a continuum.” Universal at 326. This acknowledgement was based largely upon the testimony of Professor Touretsky, who demonstrated that there was no logical distinction between DeCSS expressed in English, in mathematics, in graphs, in interpretive computer languages such as Perl that do not require compiling, in source code and in object code. See A-459-61 at 1086:18-1092:18-1092:19.²² For example, a definition of “functionality” that allowed censorship of speech “that computers can readily read and act upon” would allow the Village Voice to be censored as soon as someone was able to make a computer program that could, for instance, sell a company’s stock based upon reading an article critical of the company. The District Court’s analysis, by failing to address this problem, much less attempt to define “functionality,” leaves vulnerable all forms of human expression.

B.  "Functionality" Has Been Rejected As A Basis For Lowering First Amendment Scrutiny.

Fortunately, the District Court here was not the first to examine the question of whether the “functionality” of software should reduce the level of judicial scrutiny applied. In Junger v. Daley, 209 F.3d 481 (6^th Cir. 2000), the 6th Circuit reversed a District Court determination that computer source code’s “functional characteristics … overshadow its simultaneous expressive nature.” Id. at 484.²³ This overturned language is remarkably similar to the District Court’s observation that “expressive content in the code should not obscure its predominant functional character.” Universal at 335.

A more complete analysis of this question was made by the 9th Circuit panel in Bernstein v. U.S. Dept of Justice, 176 F.3d 1132 (9^th Cir. 1999), reh’g en banc granted, op. withdrawn,²⁴ which soundly rejected the same argument adopted by the Court here -- that the “functionality” of software should mean that O’Brien analysis applies to review of a licensing scheme for software. The Court noted:

. . . the government's argument, distilled to its essence, suggests that even one drop of direct functionality overwhelms any constitutional protection that the expression might otherwise enjoy. This cannot be so. . . . The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer upon the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects.

Bernstein, 176 F.3d at 1142.^[23]

C.  "Functionality" Improperly Punishes the Speaker Based upon the Potential Harmful Acts of His Audience.

Focusing on the functionality of software also evades the key point that the harmful conduct the District Court here sought to end is not that of the speaker, e.g., 2600 Magazine, but of the audience. The Supreme Court is reluctant to restrict speech on this basis. “[T]he presence of activity protected by the First Amendment imposes restraints on . . . the persons who may be held accountable.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916-917 (1982) (liability for damages arising from boycott cannot be based on losses caused by peaceful, nonviolent activity); Schneider, 308 U.S. at 162 (legitimate interest in keeping streets free of litter "insufficient to justify . . . prohibit[ing] a person rightfully on a public street from handing out literature to one willing to receive it”).

The District Court irresponsibly ignored this constitutional principle by holding that this speech may be punished even without proof of accompanying illegal conduct because "[g]iven the virtually instantaneous and worldwide dissemination widely available via the Internet, the only rational assumption²⁶ is that once a computer program capable of bypassing such an access control system is disseminated, it will be used." Universal at 331. ²⁷

The problems here are clear. First, the District Court’s prediction of future harm rests on the fear that the Internet is too efficient as a medium of expression,²⁸ (because Internet allows recipients to republish information, “the process potentially is exponential”). Id. As noted supra, p. 19, the District Court also seeks to justify intermediate scrutiny by finding fault with the very aspects of the Internet that make it a fully protected medium. Reno, 521 U.S. at 870 (“any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox . . . [With [W]eb pages, mail exploders, and newsgroups, the same individual can become a pamphleteer”).

Second, the record does not support the likelihood of future harm from the audience's acts. To the contrary, the Studios stipulated that they had no direct evidence of anyone using DeCSS to infringe its copyrights. A-179 at 335:3-9. And if readers ever do act, they — not 2600 Magazine — should be liable. As the Supreme Court noted of the anti-pamphleteering statute in Schneider: “[T]here are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the street.” 308 U.S. at 162. Blaming the messenger conflicts with the First Amendment’s demand for precision of regulation. Claiborne Hardware, 458 U.S. at 916.

According to the District Court, because the speech at issue here can be moved easily throughout the Internet and might harm the Studios’ commercial interests, traditional rules of causation should be abandoned in order to enjoin the press for what its readers might do. This analysis contradicts First Amendment law and tradition.

V.  AS INTERPRETED BY THE DISTRICT COURT, THE APPLICATION OF Sect. 1201(a)(2) TO ENJOIN PUBLICATION OF DECSS UNCONSTITUTIONALLY ELIMINATES FAIR USE.

In addition to being unconstitutional as applied to 2600 Magazine’s publication of and linking to DeCSS, the District Court’s interpretation of §1201 as a blanket prohibition of the manufacture or dissemination of DeCSS is independently unconstitutional because it eliminates fair use of DVD movies. Fortunately, however, as with the freedom of the press, the statute may be interpreted without such effect.

The District Court recognized that fair use is a First Amendment “safety valve” that reconciles copyright law with the First Amendment, Universal at 322, that CSS prevents all but the most technically sophisticated people from making fair uses of DVD movies,²⁹ id. at 324, and that DeCSS enables fair and lawful uses that CSS would otherwise prevent. Id. at 322, 338.

The District Court nevertheless enjoined the publication of DeCSS based on its erroneous ruling that fair use has no application in cases involving §1201. Id. at 324. In doing so, the District Court ignored several statutory provisions that expressly preserve the public’s fair use rights and put §1201 on a collision course with the Constitution.

A.  FAIR USE IS ROOTED IN THE U.S. CONSTITUTION

In exercising its copyright power under Article I, Section 8, Clause 8 of the Constitution, Congress must strike a balance between copyright owners and the public. While Congress enjoys some discretion in setting the scales, the balance itself is constitutionally mandated; Congress is not free to set the public’s side of the scale to zero.³⁰

This case focuses on one crucial element of the copyright balance: fair use. The fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is intended to foster.” It is rooted in and required by both the Copyright Clause and the First Amendment. Stewart v. Abend, 495 U.S. 207, 236 (1990).

Turning first to the Copyright Clause, the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), made explicit the direct link between the Copyright Clause and fair use:

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, 'to promote the Progress of Science and useful Arts . . . .' U.S. Const., Art. I, Sec. 8. For as Justice Story explained, 'in truth, in literature, in science and in art, there are and can be few, if any, things, which in the abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before.' Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, 'while I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles on science.'

510 U.S. 569, 575, 576 (1994) (internal citations omitted).

The First Amendment serves as the second constitutional foundation for fair use. The inherent tension between the Copyright Act, which regulates expression, and the First Amendment, which generally forbids such regulation, has been recognized by a host of commentators.³¹ When Congress codified fair use in the Copyright Act of 1976, it identified several categories of favored uses, i.e. for as “criticism, comment, news reporting, teaching, scholarship [and] research,” all of which promote First Amendment objectives. 17 U.S.C. § 107.

The Supreme Court has recognized that the fair use doctrine is required if the Copyright Act is to be spared a collision with the First Amendment. See Harper & Row v. Nation Enterprises, Inc. 471 U.S. 539 (1985).³² The District Court here observed that fair use “has been viewed by courts as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment.” Universal at 321.

The need for fair use or a similar limiting principle to guarantee breathing space necessary for free expression to coexist with copyright law is seen in Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968). In that case, a researcher intent on criticizing the conclusions of the Warren Commission’s inquiry into the assassination of President Kennedy reproduced six frames of the famous Zapruder film of the shooting in his book. Plainly, a mere verbal description of the frames would have been a poor substitute for the actual historical evidence. The court therefore concluded that the copying was allowed by the fair use doctrine. See id. at 144-46. The Time v. Geis case is not unique. See Nimmer, §1.10[C][2] (invoking the photographs of the My Lai massacre as an example).

The balance between copyright and constitutional limitations has often been maintained by a dialectical interaction between Congress and the courts³³, especially when, as here, technological change threatens to upset the copyright balance. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). For example, courts held that the fair use doctrine is applicable to software reverse-engineering, thus preserving the ability of programmers to extract the ideas from computer programs in order to build interoperable products. Sony Entertainment Corp. v. Connectix Corp., 203 F.3d 596 (9th Cir.), cert denied, 121 S. Ct. 172 (2000); Sega, 977 F.2d 1510, 1520-21 (9th Cir. 1992); Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832 (Fed. Cir. 1992).

Thus, both the Copyright Clause and the First Amendment require a meaningful fair use doctrine in order to reconcile copyright law with freedom of expression. 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. As shown below, however, rather than protect fair use, the District Court’s construction of §1201 does exactly the opposite.

B.  THE DISTRICT COURT'S INTERPRETATION OF Sect. 1201 ELIMINATES FAIR USE.

The District Court admitted that its interpretation of §1201 eliminates nearly all fair use entirely by leaving “technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so.” Universal at 324. The Court specifically listed 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 to illustrate a review, (3) performing portions of the sound track by a musicologist, and (4) making clips of scenes by a film scholar to make a comparative point. Id. at 337 (“[n]umerous other examples doubtless could be imagined”).

The District Court also added that the fair uses that would be impacted by its ruling was “remarkably varied,” Universal at 338. In addition to those listed by the Court itself, noted above, Amici submissions to the District Court gave many such examples: (1) 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; (2) 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; (3) reverse engineering to enable programmers to develop competing programs for diverse platforms and with different functionality than that provided under the licenses currently imposed by the Studios on the developers of players; and (4) preparing multimedia presentations to teach lawyering skills in the classroom. See Nessen Amicus (A-15 (Docket entry 57)); Samuelson Amicus (A-18 (Docket entry 81)); Samuelson, 14 Berkeley Tech. L.J. at 540, 548 (1999) (linguist needed to take clips of movie scenes to demonstrate that, in the context of Western-style motion pictures, the term “redskins” was often derogatory to support testimony challenging football team’s trademark); Jane C. Ginsburg, Copyright Use and Excuse on the Internet, 24 colum.-VLA j.l. & arts, (forthcoming Fall 2000), available at http://papers.ssrn.com/paper.taf?abstract_id=23947 (visited Jan. 12, 2001).

The District Court also underestimated the impact of §1201(a)(2) on fair use by ignoring an entire category of fair use prevented by CSS (and allowed by DeCSS)— fair use by scholars. Unchallenged testimony from one witness, Prof. Peter Ramadge of Princeton University, demonstrates that DeCSS facilitates scholarly research in the field of video search algorithms, analogous to Internet “search engines,” which scan and index text files on the Internet. Prof. Ramadge is working on several projects that aim at making video search possible and practical. A-388 at 891:12-22, A-386 at 884:21-885:6 (research in “indexing, search, and browsing mechanism[s] for retrieving video content”). If successful, his work would permit large databases of video clips to be searched. For example, someone with an image of a flower or of Humphrey Bogart smoking a cigarette could search the database for similar images.

Prof. Ramadge’s research relies on access to digital video content like that found on DVDs; ordinary VCR movies are insufficient. A-389 at 895-901. His use of DVD movies would undoubtedly qualify as fair use for research and scholarship. For him, the digital content of DVD movies is raw data for science, like the ideas and concepts of computer software allowed to be accessed under Sega, 977 F.2d 1510 (9^th Cir. 1992). Under the District Court’s application of §1201 to DeCSS, however, such fair uses are stillborn. Without DeCSS and relying instead on an industrial partner that could execute the needed license agreements, Prof. Ramadge only had access to two full-length copyright digital video works. A-388 at 894:22-25.³⁴

This research area has only existed for about five years. A-388 at 892:6-893:3. Other areas of research that could be opened through the digitization of movies and other content may also be facilitated by DeCSS, including many avenues not yet even considered.³⁵

In each case, plus innumerable others, fair use would be thwarted by the CSS system in the absence of tools such as DeCSS. Just as Congress may not authorize “the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available,” Graham v. John Deere Co., 383 U.S. 1, 6 (1966), Congress may not, consistent with the Constitution, eliminate the public’s fair use rights. Fortunately, the District Court’s erroneous interpretation notwithstanding, the statutory scheme of §1201 does not require this result.

C.  SECTIONS 1201(C)(1) AND (C)(4) EXPRESSLY PRESERVE FAIR USE.

The District Court erroneously concluded that fair use is inapplicable in the context of anti-circumvention claims, stating, “[I]f Congress had meant the fair use defense to apply to such actions, it would have said so.” Universal at 322.

But Congress did say so. Section 1201(c)(1) provides that “[N]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title.” This provision allows fair use defenses to be raised in anti-circumvention cases. See, e.g., Jane C. Ginsburg, From Having Copies to Experiencing Works, in U.S. Intellectual Property: Law and Policy, Hugh Hansen, ed. (Sweet & Maxwell, forthcoming 2001); Brief Amicus Curiae of Professor Charles Nessen (“Nessen Amicus”); Brief Amicus Curiae of Professor Pamela Samuelson (“Samuelson Amicus”); see also Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, 14 Berkeley Tech. L.J. 519, 546-557 (1999).

The District Court completely ignored this provision, as well as §1201(c)(4), expressly preserving free speech rights. Courts must give effect to all provisions of a statute. United States v. Rodriguez 794 F.2d 24, 28 (2^nd Cir. 1986) (citing Market Co. v. Hoffman, 101 U.S. (11 Otto) 112, 115, 116 (1879))(“Courts are not at liberty to construe any statute as to deny effect to any part of its language”). The District Court here did not.

By including these provisions, Congress explicitly recognized the potential conflict between the anti-circumvention rules and fair use and free speech principles, and provided flexibility in the statute so that courts could construe the anti-circumvention rules to avoid such conflicts. In the instant case, because DeCSS is a necessary tool to enable these fair uses of DVDs, the District Court erred in blocking its publication.

D. AS APPLIED TO DECSS, Sect. 1201 HAS SUBSTANTIAL ADVERSE IMPACTS ON FAIR USE AND FREE SPEECH AND FAILS FIRST AMENDMENT SCRUTINY.

As shown above, however, the District Court’s decision to ban all manufacture and publication of DeCSS will all but eliminate speech-related fair use of DVD movies. Whether or not this decision comports with the general constitutional requirement of fair use or a fair reading of the statute, it independently violates the First Amendment.

With respect to its own publication of DeCSS, 2600 Magazine has shown that §1201(a)(2) is subject to strict scrutiny because it is being applied to restrain journalistic publication of truthful scientific information and is content-based. In addition, the burdens placed upon speech by the elimination of fair use are themselves worthy of strict First Amendment scrutiny. Under this test, as above, §1201 must be proven to be the least restrictive means of promoting the asserted government interest. Reno, 521 U.S. at 874.

1.  The Injunction Against the Publication of DeCSS Significantly Restricts Speech and Fair Uses Related to Speech.

As amply demonstrated above, §1201(a)(2) restricts a significant amount of speech. In addition to banning 2600 Magazine’s publication of and linking to DeCSS, the ban on DeCSS publication (and manufacture) also eliminates fair use of DVD movies and the resulting speech that depends on those fair uses. The government’s interest in these uses is substantial, and includes both an interest in the public’s ability to make fair use and in promoting the public benefit arising from those fair uses.

The District Court essentially ignored the burdens on fair use speech created by banning DeCSS by treating and rejecting them merely as overbreadth concerns. Universal at 336. In so doing, it misapplied the law, because publishers generally may assert the rights of the audience. See Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 782-783 (1978) (First Amendment protects societal interest in free flow of information).

The District Court‘s failure to consider the impact of banning CSS on government’s interest in preserving fair use and the resulting public benefits was clear error.

2.  The District Court's Application of Sect. 1201(a)(2) to DeCSS was Not Narrowly Tailored.

Given these substantial impacts on speech and fair use, the key question is whether the application of §1201(a)(2) here was “narrowly tailored” in light of its burden on speech. It plainly was not.

First, the District Court undervalued the fair use interests here. While acknowledging that §1201 “may affect the ability to make fair uses” that “require copying,”³⁶ Universal at 322, 338, it concluded that they did so “probably only to a trivial degree.” Id. at 337. The reasons for this conclusion are unpersuasive.

One reason was that while “technologically unsophisticated persons” who wish to make fair use of DVD movies will lack “the means of doing so,” technically sophisticated persons could still circumvent CSS to make fair uses. Id. at 338. While this restriction would dramatically and unfairly limit fair use,³⁷ it is not even true that the technically sophisticated would be able to do so. Now that §1201(a)(1)(A) has come into force, on the District Court’s analysis, the fair use defense would also be unavailable for the use of circumvention tools by the sophisticated and unsophisticated alike. In addition, §1201(a)(2) applies to “manufacture” of circumvention technology, so a person like Prof. Ramadge would still probably violate the law if he wrote his own version of DeCSS. The District Court’s failure to grasp these points may explain why the decision does not even mention the impact of banning DeCSS on scholarly research.

Another reason given by the District Court for concluding that the burden on fair use was “probably trivial” was that prospective fair users of DVD movies could buy or rent VCR movies if they wanted to make fair uses rather than making fair uses of the DVDs they had already acquired.³⁸ Fair users should not be required to choose between paying for two copies of the same movie or making do with an inferior copy. ³⁹ In many First Amendment cases, courts have struck down speech restrictions when alternatives will be more costly or ineffective. See, e.g., Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977) (striking down ban on for sale signs on residential properties and noting that other options involve more cost and less autonomy and may be less effective media for communicating the message”); Martin v. City of Struthers, 319 U.S. 141, 145-49 (1943) (striking down a ban on door to door distribution of circulars because they are “essential to the poorly financed causes of little people”) Fair users should not have to pay extra to engage in fair use or be forced to use an inferior medium.

A proposal for those wishing to develop an alternative computer platform for playing DVD movies was to get a license from the DVD-CCA, which the District Court said was “available to anyone on a royalty-free basis and at a modest cost.” Id. at 337. But the true “cost” of signing such licenses is not monetary. The licenses impose severe restrictions that prevent development of players that offer consumers desirable features such as the ability to avoid region-code restrictions, allow fair use of works, or take advantage of the “open source” business model.⁴⁰ See generally A-1995-2017 (CSS procedural specifications); A-2049-61 (CSS license requiring compliance with CSS specifications, prohibiting release of any proprietary or confidential information, and calling for One Million Dollars in liquidated damages per material breach).

In other cases involving the development of compatible systems, Courts have permitted software developers to reverse engineer other firms’ programs in the process of developing compatible systems, even though the developers could have agreed to highly restrictive licensing agreements. See, e.g., Sega, 977 F.2d 1510 (9^th Cir. 1992); Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832 (Fed. Cir. 1992). Reverse engineering by unlicensed developers has been regarded as fair use consistent with the statutory and constitutional purposes of copyright because it yielded new, noninfringing products to be introduced to the public. Cf. Bonito Boats, 489 U.S. 141, 153 (1989) (injunction against copying of unpatented article conflicts with Art. I, § 8, cl. 8 federal policy “of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain”) (citation and internal quotation marks omitted).

It is clear that the range of fair uses and fair users of movies is “remarkably varied” and that the anti-circumvention provisions, as interpreted by the District Court, affect the ability to make speech-related fair uses that require copying. On this record, it cannot be concluded that allowing §1201 to ban DeCSS has only a trivial impact on fair users. The threat is real and substantial. As interpreted and applied by the District Court to DeCSS publication, §1201(a)(2) is not narrowly tailored to avoid or minimize the burden on fair use.

3.  The District Court Failed to Consider the Availability of Less Restrictive Means.

That the injunction on DeCSS publication was not narrowly tailored is confirmed by the District Court’s failure to consider the availability of less restrictive means. This Court can take Congress’ different and less restrictive treatment of a similar problem as indication that these means are overly restrictive. See Boos v. Barry, 485 U.S. 312, 329 (1988) (less restrictive statute suggested that challenged ordinance aimed at same problem too restrictive).

Congress’s treatment of software reverse engineering in §1201(f) exemplifies a less restrictive means than the complete ban authorized by §1201(a)(2).⁴¹ Under §1201(f), reverse engineers may share information and develop and share technologies for circumventing access controls on computer software in order to write interoperable programs. As Congress put it, “a person may need to develop special tools to achieve the permitted purpose of interoperability." H.R. rep. no. 105-551, pt. 2, at 43 (1998). "The ability to rely on third parties is particularly important for small software developers who do not have the capability of performing these functions in-house. This provision permits such sharing of information and tools." Id. One need only substitute the phrase “fair use” for “interoperability” to create a less restrictive means.⁴²

Other areas of copyright law also demonstrate the existence of less restrictive means. Sony’s “capable of substantial noninfringing uses” standard is less restrictive than the District Court’s standard, allowing imposition of liability for providing pure infringement tools without stifling tools that also have substantial legitimate uses. The Sony standard not only has the Supreme Court’s imprimatur, but is objective and well-known to courts and copyright owners. Moreover, it is undisputed that the Studios have been well protected by this standard. Sony was a case where the plaintiffs lost on the law but won on the balance sheet.⁴³

Finally, the District Court failed to consider the dearth of Congressional findings concerning the availability and efficacy of "constitutionally acceptable less restrictive means" of achieving the asserted government interest. See Sable Communications of California, Inc. v. FCC, 492 U.S., 115, 129 (1989). If the interests of software publishers are adequately protected even though §1201(f) permits limited sharing of circumvention technology, why is the same not true for publishers of other kinds of copyrighted works? If the interest in interoperability is important for software, why is it not important for other kinds of copyrighted works? The legislative record is silent on these questions. Arguably, the risks of widespread infringement are greater for software than for movies, because software is only marketed in digital form, while movies are marketed in many ways, only some of which are digital.

In preventing access to DVD movies for both noninfringing uses and fair uses, CSS impermissibly extends the copyright monopoly and disserves interests central to the constitutional copyright scheme. Such uses, whether the film studies professor’s use of DVD movies in a comparative analysis or Prof. Ramadge’s use of DVD movies in research on video search algorithms, are highly valued under the First Amendment. Permitting DeCSS would mitigate this loss by restoring the public’s right to access copyrighted works for fair use while still allowing prosecution of those who use DeCSS to infringe. Cf. Schneider v. State (Town of Irvington), 308 U.S. 147, (1939) (city may not prevent littering by preventing leafleting; “There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets”).

Consequently, the District Court’s application of §1201(a)(2) to DeCSS is not a narrowly tailored effort to protect copyright owners’ interest. In light of this serious constitutional problem, this Court should construe §1201(a)(2) to permit the publication of DeCSS for fair use purposes.

4.  Even Under Intermediate Scrutiny the Application of Sect. 1201(a)(2) to DeCSS Fails.

Even assuming that intermediate scrutiny is applicable here, the District Court applied an inappropriate test. More appropriate than the O’Brien test applied by the District Court here is the standard announced in Denver Area Educational Television Consortium v. FCC, 518 U.S. 727 (1996). This requires close scrutiny of the application of §1201(a)(2) to DeCSS “to assure that it properly addresse[d] an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech.” Id., 518 U.S. at 743.

This standard is particularly appropriate here because it requires courts to consider all relevant interests, here including the dual, often competing interests served by copyright law. This approach because, like the cable regulation of Denver Area, this case presents First Amendment questions against a background of “changes taking place in the law, the technology, and the industrial structure, related to telecommunications,” id. 518 U.S. at 818 (citations omitted) (plurality op.), making it “unwise and unnecessary definitively to pick one analogy or one specific set of words now.” Id. at 742. Here, not only is §1201 a new statute, but the technologies used by copyright owners to trigger their rights under it are new as well. The District Court, however, did not heed the Supreme Court’s wise counsel and instead “definitively pick[ed] one analogy” — that of a “disease” — that runs roughshod over the constitutional interests of fair users. Applied here, the Denver Area test results in the conclusion that injunction “sacrific[es] important First Amendment interests for too speculative a gain.” Denver Area, 518 U.S. at 760 (internal quotation marks and citations omitted).

Even assuming the propriety of O'Brien scrutiny here, however, a proper application of §1201 to prevent the publication of DeCSS fails. Under O'Brien analysis, "the incidental restraint on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance" of the interest in protecting copyright owners against piracy. See Turner Broadcasting, 512 U.S. at 662 (quoting O'Brien, 391 U.S. at 377) (internal quotation marks omitted).

First, O'Brien scrutiny requires consideration of alternative channels for speech, see City of Erie, 120 S.Ct. at 1397. Here, there is no other channel whatsoever for expressing DeCSS. The injunction bans all forms of expression. Second, wholesale prohibition of DeCSS burdens speech by significantly lessening speech-related fair uses of DVD movies. The District Court did not consider this loss in its O'Brien analysis, but rather in the overbreadth context. Even there, the District Court undervalued the loss without factual justification Under O'Brien, however, such a judgment must be factually justified. Turner Broadcasting, 512 U.S. at 665 (remedy must not be unduly burdensome on speech); Edenfield v. Fane, 507 U.S. 761, 770-773 (1993) (striking commercial speech regulation for failure to show direct and material efficacy).

Instead, the District Court largely engaged in speculation about the burdens on speech-related fair uses, admitting that it "simply does not have a sufficient evidentiary record on which to evaluate" the claims of potential fair users. Universal at 338 n. 246. An evidentiary record, however, is "critical to the narrow tailoring step"; without knowing the extent of the interference with speech, this Court cannot say whether more speech is suppressed than necessary to protect copyright owners. See Turner Broadcasting, 512 U.S. at 667-668 (noting absence of findings concerning "actual effects" of cable regulation on speech and "less restrictive means") (internal quotation marks and citation omitted); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (slip op. at 12) (2000) ("mere conjecture" cannot "carry a First Amendment burden").

Accordingly, even if O’Brien is to be applied, the District Court failed to make the necessary findings. If they had been made, it is clear that §1201 fails as applied to DeCSS.

VI.  SECTION 1201 IS SUSCEPTIBLE TO A CONSTITUTIONAL INTERPRETATION.

A.  Sect. 1201(c)(1) and Sect. 1201(c)(4) Can Be Construed to Avoid Constitutional Conflicts.

While the District Court’s analysis of §1201 results in severe Constitutional difficulties, §1201 itself is susceptible to a constitutional construction. By giving effect to the provisions ignored by the District Court—expressly preserving freedom of speech in §1201(c)(4) and fair use in §1201(c)(1)—the statute remains a powerful tool to prevent actual copyright infringement without sweeping so broadly as to shift the balance of rights long established in copyright law. As noted above, the normal standards for media liability for its publications, under theories of agency, conspiracy and others, would still apply, but if those are not met, no liability would attach for publications of circumvention devices as part of news reporting or to facilitate fair use. This single step would eliminate several of the most severe Constitutional difficulties with the District Court’s interpretation of §1201 and would address the facts here.

B.  Since DeCSS Is Used By Those Who Have Purchased DVDs, It Is Outside the Scope of Sect. 1201.

In addition, the definition of a technology that allows illegal “circumvention” under §1201 also places DeCSS outside its scope. For a technology to be illegal under any subsection of §1201(a)(2), it must “circumvent a technological measure that controls access to a [copyrighted] work” under the statute. §1201(a)(3)(A) defines "circumvention device" as one that allows access to a copyrighted work "without the authority of the copyright owner" (emphasis added).

A consumer who buys a copy of The Matrix on DVD has “authority” to access it in order to view it. If not, it is unclear what she paid approximately $25 for. Congress specifically confirmed this point with reference to circumvention necessary to fair use:

. . . where access is authorized, the traditional defenses to copyright infringement, including fair use, would be fully applicable. So, an individual would not be able to circumvent in order to gain unauthorized access to a work, but would be able to do so in order to make fair use of a work which he or she has lawfully acquired.

H.R. Rep. 105-551, pt. 1 (1998)(emphasis added). §1201 was therefore intended to reach technologies that allow unauthorized persons to access copyrighted works, not to prevent fair use or noninfringing use of lawfully owned DVDs.

DeCSS allows persons who have purchased or lawfully obtained DVDs to view them. In an example much discussed at trial, DeCSS allows lawful owners to view their DVDs on computer platforms such as the Linux platform, for which no player has yet been released.⁴⁴ If an individual is legally authorized to view and decrypt the DVD upon purchase, this “authority” is not revoked simply because she uses a different computer operating system than that anticipated by the Studios.⁴⁵

Ignoring this straightforward interpretation, the District Court held that the "authority"⁴⁶ required in 1201 is equivalent to the "consent" of the copyright owners Universal at 317, footnote 137. It decided that because the plaintiffs intended or expected that owners of DVD movies would only view the movies on licensed players, such lawful owners lack “authority” to view DVD movies on other devices and so devices that allow such viewing are illegal. Inherent is this reasoning is the improper assumption that buying a copy of The Matrix on DVD entails no right or privilege to view it or that this right is somehow limited to viewing on those players approved by the copyright owners. Yet if the “authority” to view a work does not pass to the consumer upon purchase, when does it pass? ⁴⁷ And if it is limited in some way, by what mechanism is it limited? The District Court failed to even raise these questions, much less answer them.⁴⁸

The correct construction of §1201(a)(3)(A) is that it simply does not reach technologies like DeCSS that allow access to a work by those who legitimately possess a copy of it or who have a legitimate right to access the work under fair use or free speech principles.⁴⁹ These persons are accessing the work with the “authority” of copyright law and the technologies that allow them to do are outside the reach of §1201.

CONCLUSION

The District Court’s analysis here in a sense parallels that of the government in Reno v. ACLU, where the government tried to use its compelling interest in restricting children’s access to indecent speech to justify broad suppression of speech addressed to adults. That effort failed because the government may not reduce adult speech to what is fit for children. ACLU, 521 U.S. 844 at 875.

The same principle, paraphrased, applies here: A legitimate interest in preventing copyright infringement does not justify a broad suppression of both normal reporting practices on topics of public concern and fair use. Copyright cannot protect only authors or copyright owners; it must also protect what the Sony court described as ”society’s competing interest in the free flow of ideas, information, and commerce.” Sony, 464 U.S. at 429.

But with greater charity for the Studios' commercial interest than fidelity to the requirements of the Constitution, the District Court fashioned an injunction that effectively prohibits journalists, academics, scientists from disseminating information about how DVDs work and prevents fair use of DVDs. It did this by ignoring two sections of an integrated statute, one explicitly protecting freedom of the press and another protecting fair use and the other limitations of the copyright bargain. It also misinterpreted the “authority” referenced in §1201.

The District Court thereby transformed §1201 from a statute aimed at preventing copyright infringement into one that effectively allows content holders to do much more. Under the District Court’s interpretation, §1201 is a mechanism that gives copyright owners unlimited and unending control over their works and the players for their works, something that Copyright and the First Amendment have never allowed.

Based upon the foregoing, Appellant respectfully requests that the decision of the District Court be reversed and, if necessary the case remanded back to the District Court for specific findings consistent with First Amendment and Copyright Clause of the Constitution.

Dated: New York, New York
January 19, 2001

CERTIFICATION

The undersigned attorney of record for the Appellants do hereby certify that the foregoing brief complies with the type-volume limitation as set forth in FRAP 32(a)(7). The total number of words in the foregoing brief is 15,898.

Dated: New York, New York
January 19, 2001

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

                                 Martin Garbus (MG 6261)

                                 Edward Hernstadt (EH 9569)

                                 Attorneys for 2600 Magazine, Inc.

                                 488 Madison Avenue
                                 New York, New York 10022

                                 (212) 980-0120

FOOTNOTES

1 DVD CCA is the licensing organization created by CSS creator Matsushita Electrical Industry Co., Ltd., together with the studios. See A-640 at 75:9-18; A-641 at 78:15-20.

2 The reason for this is because the DVD CCA will not grant a license for CSS that will allow development of an open source player. See, e.g., A-2093-99 (confidentiality provisions in CSS license).

3 The Studios also sued two other individuals who entered into consent decrees long before trial. Universal at 312, footnote 91; A-7 (docket entry 18); A-9 (docket entry 28).

4 The District Court’s interpretation also trumps much of the rest of the public’s side of the copyright bargain. As with fair use, the District Court’s ruling eliminates these “ordinary use” rights by making it illegal to “provide” the technologies required to exercise them.

5 Appellants also raised a claim under §1201(b). See Universal at 316, note 133. The District Court did not analyze this section, presumably because it found liability under §1201(a)(2). Most of the constitutional problems demonstrated herein, such as the impact on fair use, would also arise under a claim under §1201(b). Should this Court find that an analysis of §1201(b) would be helpful, however, Appellants request either that the case be remanded so that the parties and the District Court can address its application here or that the parties be granted leave to file additional briefs before this Court to address that section.

6 See e.g. WIPO Copyright Treaties Implementation Act; And Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 Before the House Sub-Comm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 105^th Cong. 154-156 (1997) (letter written by 62 law professors and read by Georgetown Prof. Robert L. Oakley).

7 The other media outlets linked to DeCSS rather than publishing the software themselves. The District Court held that such linking violates §1201.

8 That 2600 Magazine published DeCSS on the Internet does not reduce the level of scrutiny. Reno v. ACLU, 521 U.S. 844, 869 (1997) (Finding “no basis for qualifying the level of First Amendment scrutiny that should be applied” to the Internet)(“ACLU”).

9 §1201(a)(2) includes all kinds of "technology" and "services," not merely software. Thus on its face, the statute reaches information presented in ordinary English as well as in computer programming languages.

A NAME="sdfootnote10sym" HREF="#sdfootnote10anc">10 A cryptographic investigation also performs the public service of providing consumers with important security information. See A-328-29 at 745:11-747:8.

11 For description of the speech function of code, See A-545-61 at 1066:13-1093:10.

12 The District Court’s cramped interpretation of this exception, which limits its applicability to only "legitimate” cryptographers and prevents general publication (Universal at 321), renders it inadequate even to protect normal encryption research processes.

13 Sega Enterprises Ltd. v. Accolade Software, Inc., 977 F.2d 1510 (9^th Cir. 1992).

14See, e.g., Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180, 1193 (1970) (“There is no countervailing speech interest which must be balanced against perpetual ownership of tangible real and personal property. There is such a speech interest with respect to literary property, or copyright”).

15 See, e.g., A-1960-78 (List of internet sites posting DeCSS that the Studios demanded remove the programs; “Results of Compliance check” shows roughly half the sites still posted DeCSS). See also, A-2534-40 (subsequent chart showing similar information two months later that the District Court erroneously failed to receive into evidence despite its reception of A-1960-78).

16It is not clear that the District Court applied the proper content neutral test here. A content-neutral injunction of speech, which has been held to require more than ordinary intermediate scrutiny, “is not sufficiently rigorous.” Madsen v. Women's Health Center, Inc., 512 U.S. 753, 764-765 (1994). Instead, the Court must ask “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Id. at 765-766 (citations omitted).

17 The District Court’s conclusion that publication on the World Wide Web is not reasonable means of scientific communication is itself quite extraordinary, since it was invented for just this purpose. See ACLU v. Reno, 929 F.Supp. 824, 836 (E.D. Pa. 1996) (finding 35)(World Wide Web was developed originally for physics research and only later “extended beyond the scientific and academic community”).

18 See e.g. United States v. Freeman, 761 F.2d 549 (9^th Cir. 1985), cert denied, 476 U.S. 1120 (1986)(no First Amendment defense when Defendant helped to file a false income tax return); United States v. Fleschner, 98 F.3d 155, 158-159 (4^th Cir. 1996), cert. denied 117 S. Ct. 2484 (1997)(First Amendment does not protect speech acts in furtherance of an illegal conspiracy); cf United States v. Aguilar, 515 U.S. 593, 605 (1995) (First Amendment defense rejected in part because statute only imposes restrictions on those who disclose wiretap information in order to obstruct, impede or prevent a wiretap interception).

19In full, the test says that linking may be enjoined when a publisher: knows that the “offending material” is on the site; knows that the material is indeed “offending”; and links “for the purpose of disseminating that technology.” Universal at 341.

20 Contesting The Vote; Text of Supreme Court Ruling on Bush v. Gore Florida Recount Case, N. Y. TIMES, Dec. 13, 2000, at A7 and Linda Greenhouse, The 43^rd PRESIDENT : NEWS ANALYSIS : Another Kind of Bitter Split, N.Y. TIMES, Dec. 14, 2000, at A1.

21 Furthermore, because the test is based on the “functionality” of links “tak[ing] one almost instantaneously to the desired destination with the mere click of an electronic mouse,” the District Court’s test only applies to active links. If a publisher merely published the URL for a foreign site containing DeCSS, no injunction would be authorized. Consequently, the District Court’s test permits injunctions against active links to sites containing DeCSS, but not to passive links that merely display the site’s URL. Thus, the test not only sweeps in too much protected speech, it fails to advance the asserted interest.

22 See also, <http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html>. As Professor Touretsky’s gallery demonstrates, others have demonstrated the expressive nature of DeCSS by putting it in T-shirts, setting it to music and writing it into greeting cards. See also, A-2254-56.

23 In dicta the 6th Circuit noted the requirements of the O'Brien test, but then remanded without instruction as to the applicable test, concluding: "[B]efore any level of judicial scrutiny can be applied to the regulations, Junger must be in a position to bring a facial challenge to these regulations." Junger v. Daley, 209 F.3d 481 (6^th Cir. 2000), at 485. The District Court incorrectly characterized the Junger court as requiring the application of the O'Brien test. Universal at 330, 331.

24 The Bernstein opinion was withdrawn pending en banc review. That review was subsequently mooted when the government dramatically rewrote the challenged regulations, but the decision remains the most thorough analysis to date of the question of First Amendment protection for computer software. While we would not normally cite to a withdrawn opinion, we here follow the lead of the District Court. See, Universal at 327, footnote 186.

25 See also Bernstein v. Department of State, 922 F.Supp. 1426, 1436 (N.D.Cal. 1996) (“under copyright law, sheer functionality [does not] diminish the expressive quality of a copyrightable work . . copyright law does lend support to the conclusion that source code is a means of original expression”).

26 If this is a factual finding it is entitled to no deference. Bose, supra. If 2600 Magazine gave its readers instructions to jump off a bridge, would “the only rational assumption” be that they would do so?

27 In finding the anti-trafficking rule content-neutral, the District Court also relied upon the “secondary effects” doctrine of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Yet the Supreme Court refused to apply this doctrine to Internet “indecency” regulation, in part because it applied “broadly to the entire universe of cyberspace,” not just to specific neighborhoods. Reno, 521 U.S. at 868. §1201(a)(2) sweeps even more broadly, because it is not limited to Internet publication.

28 Rapid worldwide dissemination is not unique to computer programs on the Internet. The New York Times disseminates thousands of useful ideas daily. For a hundred years shortwave radio has had instant global reach.

29 Since §1201(a)(2) also prevents the “manufacture” of circumvention technologies, even “technically sophisticated” persons are prevented from exercising their rights.

30 Congress may not, for example, grant to authors a perpetual property right since Article I, Section 8, Clause 8 empowers Congress only to grant copyrights for a “limited time.” The District Court’s construction, by its own admission, contravenes this rule by empowering copyright owners to effectively secure perpetual protection by mixing public domain works with copyrighted materials, then locking both up with technological protection measures. See Universal at 338, note 245; see also Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U.Penn.L.Rev. 673, 712 (2000)(describing how access to public domain works can be restricted by combining them with new material).

31 Paul Goldstein, Copyright and the First Amendment, 70 Colum. L. Rev. 983 (1970); 1 Nimmer §1.10[A]; Robert C. Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 Cal. L. Rev. 283 (1979); Yochai Benkler, Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999).

32 See also Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) (fair use to reproduce portions of article in critical biography of Howard Hughes); Nihon Keizai Shimbun, Inc., 166 F.3d 65, 74 (2d Cir. 1999) (“First Amendment concerns are protected by and coextensive with the fair use doctrine.”); Twin Peaks Prods. v. Publications Int’l Inc., 996 F.2d 1366, 1378 (2d Cir. 1993) (“[E]xcept perhaps in an extraordinary case, the fair use doctrine encompasses all claims of first amendment in the copyright field”); Triangle Pub., Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980) (fair use to reproduce cover of TV Guide in comparison of competing guide); Italian Book Corp. v. American Broadcasting Co., 458 S. Supp. 65 (S.D.N.Y. 1978) (newsworthy broadcast of street festival allowed fair use of music); Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D. N.H. 1978) (fair use to reuse portions of political song in political commentary).

33 Fair use itself was originally created by the courts in 1841, Sony, 464 U.S. at 475 n.12, and only codified by Congress in 1976. The first sale doctrine, which ends the control of copyright holders upon sale, was a judicial creation as well. Bobbs-Merrill Co. v. Straus 210 U.S. 339 (1908).

34 Such experiences belie the notion that access to digital material will be freely licensed to such “fair users.” Nor is there any procedure in place to handle such requests. See A-1382 at 78:21-23. Ironically, Prof. Ramadge testified that when he demonstrates his automated analysis programs, people in the video industry tell him that “you really need to test your algorithms on a wider variety of video.” A-390 at 901:5-13.

35 The problem can be generalized. Much modern scholarship uses computers and computer programs to analyze copyrighted works. Prof. Ramadge’s research into video is only one example; similar research is being conducted on text, musical scores, and audio recordings. See A-1901-03.

37 Even if the technically sophisticated could lawfully make circumvention tools to allow them to make fair uses of DVD movies, there is no basis in the legislative history or common sense for permitting only the “sophisticated” to make fair uses.

38 The District Court admitted that not all DVD movies were also available in VCR formats and that in the future more DVD movies might be unavailable in VCR format. Universal at 337. DVDs also often contain materials such as directors interviews or commentary that is not available in any other media. A-1397-98 at 139:24-142:19. It is worth noting that commercially distributed VCR movies are generally technologically protected as well, calling into question the viability of VCR copying as an alternative way to engage in fair use. Moreover, some DVD movies contain information, including additional scenes, interviews and “directors cuts” not available in other formats.

39 For example, VCR movies are inadequate for scholarly research like Prof. Ramadge’s.

40 Moreover, the district court's factual funding here is clearly erroneous. The DVD CCA makes clear that the license costs between $20,000 and $60,000 per year, which puts it out of reach of all poorly funded or unfunded programmers, like those who write Linux programs. See A-672 at 201:20-25, 203:11-13 (fee is $10,000 per license category); A-2092 (license fee one million yen per category) A-2033 (CSS license for two categories (WEA)); A-2068 (CSS license for six categories (Texas Instruments)); A-408 at 973:9-974:11 (funding an issue for the LIVID DVD project).

41 As noted above, however, the District Court’s interpretation of this exception dramatically limits its impact.

42Other examples of less restrictive means have been discussed in the scholarly literature. See D. Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 707 (2000) (discussing approach of 17 U.S.C. §112(a)(2) to technical protection measures for ephemeral recordings); id., at 710 (discussing approach of Vessel Hull Design Protection Act, 17 U.S.C. § 1309). Still others were introduced in Congress but ultimately rejected. Digital Era Copyright Enhancement Act, H.R. 3048, 105^th Cong. (1997) (no floor action taken).

43 Approximately 40% of Warner Brothers’ total income from movie distribution now comes from the home video market. Universal at 311 n. 70.

44 The District Court noted that the Studios testified that they had licensed the CSS software to developers of Linux-related computer components. Universal at 310. No player has yet been released, however, (A-406-07 at 965:18-968:13), and the license terms required by the Studios prevent the release of an open source player in any event. A-2049-56 at ¶¶5-5.4 (CSS specifications).

45 The right of private performance is not among copyright owners’ statutory rights. See § 106(4) (right over public, but not private, performance).

One who puts a copyrighted work to a use outside of the copyright owner’s bundle of § 106 rights does not infringe. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 155 (1975).

46 The Copyright Act does not define the term “authority.”

47 This interpretation is especially puzzling in the context of "providing" circumvention technologies under §1201(a)(2), since a person publishing such programs has no way of knowing which copyrighted works will be accessed by the recipients. Must he or she obtain the "consent" of all potential copyright owner? This would include more than just the Studios and would change with each new movie released by a new copyright owner.

48 The District Court prevented 2600 Magazine from pursuing these questions at trial. A-241 at 487-490. The MPAA’s Washington representative, Fritz Attaway, stated the Studio’s position that “authority” is granted only with the purchase of both players and DVDs that are CSS-licensed. A-1369-70 at 28:11, 28:23-29:3, 29:15-30:11.

49 Obviously, if she uses DeCSS to access the work and then makes infringing copies, she has exceeded the authority that attached with her purchase of the DVD. The same is true for a person who purchases a book and then makes illegal photocopies of it.

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