The plaintiffs were motion picture studios that distributed motion pictures for home use on digital versatile discs (DVDs) and protected them from being copied using an encryption system called the Content Scramble System (CSS). The encrypted DVDs could only be viewed — not copied — on players and computer drives equipped with the licensed decryption technology.
In September 1999, a fifteen-year-old Norwegian, Jon Johansen, and two other individuals reverse engineered a licensed DVD player and discovered the CSS encryption algorithm and keys. Based on this information, they created DeCSS, a program capable of decrypting or "ripping" encrypted DVDs. Defendants posted the DeCSS code on their website.
Although Mr. Johansen was subject to charges filed in Norway, he was not a defendant in this lawsuit. The defendants included Eric Corley, described as "a leader of the computer hacker community," and his company, 2600 Enterprises, which publishes a magazine called "2600:The Hacker Quarterly." Defendants posted the DeCSS code on the 2600.com website.
The studios filed suit for a violation of 17 U.S.C. §1201 and sought to enjoin the defendants from posting DeCSS and to prevent them from electronically "linking" their site to others that post it. The defendants responded with self-described "electronic civil disobedience," i.e., they increased their efforts to link their website to others to continue to make DeCSS available.
District Court Proceedings
The court reviewed the development of CSS — a means to control access to the plaintiff’s copyrighted work — and determined that DeCSS is “clearly a means of circumventing” it. DeCSS' creators explained that the program was not developed to pirate copyrighted movies but to further development of a DVD player that would run under the Linux, as opposed to the Windows, operating system.
The district court concluded that CSS is a technological means that effectively controls access to the plaintiffs' DVD motion pictures; that the only function of DeCSS is to circumvent CSS; and that the defendants did offer and provide DeCSS by posting it on their website. The defendants' subjective intent, i.e., whether they posted the code in order to infringe, or encourage others to infringe copyright, does not matter under 17 U.S.C. §1201.
The court found that the defendants raised a "significant" point in the assertion that access control measures like CSS may prevent lawful as well as unlawful uses of copyrighted material. For example, it could thwart the ability of a film studies professor to prepare a CD-ROM containing two different scenes from movies to illustrate a lecture on cinematography. But the defendants were not being sued for copyright infringement, to which fair use is a defense. They were sued for violating the anticircumvention provision of the DMCA, which, by express congressional intent, precludes the fair use doctrine:
|“||The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress' decision contravenes the Constitution[.]||”|
The court next considered whether the DMCA's anticircumvention provisions, as applied to prevent the public dissemination of DeCSS, violates the First Amendment. The court acknowledged that the defendants accurately assert that computer code, to the extent it is used to express ideas, may be "protected speech," but went on to analyze both its function and the level of protection afforded in the case before it. It concluded that even though the substance of the computer code may be expressive, DeCSS has a functional, non-speech aspect: it enables recipients to circumvent the CSS system.
Society's increasing dependence upon technological means of controlling access to digital files and systems, and its importance in the digital world led the court to accord more weight to the functional, non-speech aspect of the DeCSS computer program and to hold that the anticircumvention provision of the DMCA is a valid, content-neutral regulation in furtherance of important governmental interests:
|“||Here, dissemination itself carries very substantial risk of imminent harm because the mechanism is so unusual by which dissemination of means of circumventing access controls to copyrighted works threatens to produce virtually unstoppable infringement of copyright.||”|
The same urgency which compelled the court to elevate the computer program's functionality over its characterization as expressive speech supported the court's issuance of broad injunctive relief against the posting of DeCSS. Hence, it enjoined others from posting DeCSS by linking websites. It acknowledged that the extension of the prohibition to Internet hyperlinks could have a possible chilling effect or be viewed as too broad and issued the following caveat:
|“||Accordingly, there may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.||”|
Finding monetary damages to be inadequate, and proof of actual damages to be difficult if not impossible, the court granted a permanent injunction against the posting of DeCSS. It addressed the defendants' argument that an injunction would be futile because DeCSS is already all over the Internet. To deny relief would be to encourage others to replicate unlawful conduct and to create a "futility defense." But the court was more troubled by the magnitude of destruction of intellectual property rights posed by the Internet:
|“||These defendants would harm plaintiffs every day on which they post DeCSS on their heavily trafficked web site and link to other sites that post it because someone who does not have DeCSS thereby might obtain it. . . . [T]his decision will serve notice on others that "the strong right arm of equity" may be brought to bear against them absent a change in their conduct and thus contribute to a climate of appropriate respect for intellectual property rights in an age in which the excitement of ready access to untold quantities of information has blurred in some minds the fact that taking what is not yours and not freely offered to you is stealing.||”|
Appellate Court Proceedings
On appeal, defendants/appellants argued that the DMCA unconstitutionally eliminates fair use. The court rejected this as an “extravagant claim.” Reviewing Supreme Court dicta, the Court of Appeals noted that “the Supreme Court has never held that fair use is constitutionally required. . . .” But the court declined to examine further the relationship between fair use and the Constitution, because fair use was not at issue. The defendants did not claim to be engaged in fair use; they were being enjoined from trafficking in a decryption code that enabled unauthorized access to copyrighted materials. The lower court had noted that there was scant evidence to determine the extent to which the anti-trafficking provisions of the DMCA prevents others from copying DVD movies in order to make fair use of them.
Finally, addressing the relationship between access and fair use, the appellate court found that fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original:
|“||Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. . . . "We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. . . ." [T]he DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use.||”|
As examples, the court suggested that a constitutionally-based assertion of fair use permits neither the film critic to use a movie camera in a theater to review a film, nor the art student to make fair use of a painting by photographing it in a museum.