United States District Court for the Southern District of New York

“ 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. In consequence, the causal link between the dissemination of circumvention computer programs and their improper use is more than sufficiently close to warrant selection of a level of constitutional scrutiny based on the programs’ functionality. ”

“ Just as computer code cannot be excluded from the area of First Amendment concern because it is abstract and, in many cases, arcane, the long history of First Amendment jurisprudence makes equally clear that the fact that words, symbols and even actions convey ideas and evoke emotions does not inevitably place them beyond the power of government. ”

“ Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . ”

“ Conduct has immediate effects on the environment. Computer code, on the other hand, no matter how functional, causes a computer to perform the intended operations only if someone uses the code to do so. Hence, one commentator, in a thoughtful article, has maintained that functionality is really “a proxy for effects or harm” and that its adoption as a determinant of the level of scrutiny slides over questions of causation that intervene between the dissemination of a computer program and any harm caused by its use. ”

“ Time relied on many sources as the basis for its belief that "the church . . . survives by intimidating members and critics in a Mafia-like manner." None of these sources is so obviously incredible that a reasonable jury could infer from Time's reliance on them knowledge of falsity or subjective doubt as to veracity. See St. Amant, 390 U.S. at 732; cf. id. ("Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.") ”

“ To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. ”

“ If a technological means of access control is circumvented, it is, in common parlance, ineffective. Yet defendants’ construction, if adopted, would limit the application of the statute to access control measures that thwart circumvention, but withhold protection for those measures that can be circumvented. In other words, defendants would have the Court construe the statute to offer protection where none is needed but to withhold protection precisely where protection is essential. ”

“ Because the freedoms guaranteed by the First Amendment are designed to ensure that debate not litigation, is vigorous, the subjective nature of the test of liability cannot create a bar to summary disposition of libel suits. ”

“ Because defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim. Plaintiffs have also now shown that the balance of hardships tips decidedly in their favor. Accordingly, plaintiffs’ motion for a preliminary injunction is denied. ”

“ In an era in which the transmission of computer viruses—which, like DeCSS, are simply computer code and thus to some degree expressive—can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination of code in appropriate circumstances. ”

“ Thus, to say that a particular form of expression is “protected” by the First Amendment means that the constitutionality of any regulation of it must be measured by reference to the First Amendment. In some circumstances, however, the phrase connotes also that the standard for measurement is the most exacting level available.
It cannot seriously be argued that any form of computer code may be regulated without reference to First Amendment doctrine. The path from idea to human language to source code to object code is a continuum. ”

“ A work is transformative if it does not “merely supersede [] the objects of the original creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Id. (internal quotation marks omitted) . Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” ”

“ An operating system is “a software program that controls the allocation and use of computer resources (such as central processing unit time, main memory space, disk space, and input/output channels) . The operating system also supports the functions of software programs, called ‘applications,’ that perform specific user-oriented tasks . . . . Because it supports applications while interacting more closely with the PC system’s hardware, the operating system is said to serve as a ‘platform.’” [5]
Microsoft Windows (“Windows”) is an operating system released by Microsoft Corp. ”

“ The copyright holder, once aware of the appearance of infringing copies, usually was able to trace the copies up the chain of distribution, find and prosecute the infringer, and shut off the infringement at the source.
In principle, the digital world is very different. Once a decryption program like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of decrypting and perfectly copying plaintiffs’ copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every recipient to do the same. ”

“ A Web client is “software that, when running on a computer connected to the Internet, sends information to and receives information from Web servers throughout the Internet. Web clients and servers transfer data using a standard known as the Hypertext Transfer Protocol (‘HTTP’) . A ‘Web browser’ is a type of Web client that enables a user to select, retrieve, and perceive resources on the Web. In particular, Web browsers provide a way for a user to view hypertext documents and follow the hyperlinks that connect them, typically by moving the cursor over a link and depressing the mouse button.” ”

“ There is no serious question that defendants’ posting of DeCSS violates the DMCA.
Defendants’ constitutional argument ultimately rests on two propositions—that computer code, regardless of its function, is “speech” entitled to maximum constitutional protection and that computer code therefore essentially is exempt from regulation by government. But their argument is baseless.
Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. ”

“ Were that the law, defendants confronted with the possibility of injunctive relief would be well advised to ensure that others engage in the same unlawful conduct in order to set up the argument that an injunction against the defendants would be futile because everyone else is doing the same thing.
Second, and closely related, is the fact that this Court is sorely “troubled by the notion that any Internet user ... can destroy valuable intellectual property rights by posting them over 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. They thus threaten plaintiffs with immediate and irreparable injury. They will not be allowed to continue to do so simply because others may do so as well. In short, this Court, like others than have faced the issued, is “not persuaded that modern technology has withered the strong right arm of equity.” ”

“ The constitutional law of defamation provides a highly relevant analogy. The threat of defamation suits creates the same risk of self-censorship, the same chilling effect, for the traditional press as a prohibition of linking to sites containing circumvention technology poses for web site operators. Just as the potential chilling effect of defamation suits has not utterly immunized the press from all actions for defamation, however, the potential chilling effect of DMCA liability cannot utterly immunize web site operators from all actions for disseminating circumvention technology. ”

“ In determining whether one is engaged in good faith encryption research, the Court is instructed to consider factors including whether the results of the putative encryption research are disseminated in a manner designed to advance the state of knowledge of encryption technology versus facilitation of copyright infringement, whether the person in question is engaged in legitimate study of or work in encryption, and whether the results of the research are communicated in a timely fashion to the copyright owner. ”

“ Congress is not powerless to regulate content neutral regulations that incidentally affect expression, including the dissemination of the functional capabilities of computer code. A sufficiently important governmental interest in seeing to it that computers are not instructed to perform particular functions may justify incidental restrictions on the dissemination of the expressive elements of a program. ”

“ Defendants argue first that the DMCA should not be construed to reach their conduct, principally because the DMCA, so applied, could prevent those who wish to gain access to technologically protected copyrighted works in order to make fair—that is, non-infringing—use of them from doing so. They argue that those who would make fair use of technologically protected copyrighted works need means, such as DeCSS, of circumventing access control measures not for piracy, but to make lawful use of those works. ”

“ But the assumption that the chain of causation is too attenuated to justify the use of functionality to determine the level of scrutiny, at least in this context, is not.
Society increasingly depends upon technological means of controlling access to digital files and systems, whether they are military computers, bank records, academic records, copyrighted works or something else entirely. ”

“ If the defendant itself threatens the plaintiff with irreparable harm, then equity will enjoin the defendant from carrying out the threat even if other threats abound and even if part of the pasture already is burned. ”

“ Late last year, computer hackers devised a computer program called DeCSS that circumvents the CSS protection system and allows CSS-protected motion pictures to be copied and played on devices that lack the licensed decryption technology. Defendants quickly posted DeCSS on their Internet web site, thus making it readily available to much of the world. ”

“ Copyright and, more broadly, intellectual property piracy are endemic, as Congress repeatedly has found. [230] The interest served by prohibiting means that facilitate such piracy—the protection of the monopoly granted to copyright owners by the Copyright Act—is of constitutional dimension. There is little room for doubting that broad dissemination of DeCSS threatens ultimately to injure or destroy plaintiffs’ ability to distribute their copyrighted products on DVDs and, for that matter, undermine their ability to sell their products to the home video market in other forms. ”

“ All code is human readable. As source code is closer to human language than is object code, it tends to be comprehended more easily by humans than object code.
The Internet and the World Wide Web The Internet is “a global electronic network, consisting of smaller, interconnected networks, which allows millions of computers to exchange information over telephone wires, dedicated data cables, and wireless links. The Internet links PCs by means of servers, which run specialized operating systems and applications designed for servicing a network environment.” ”