United States District Court for the Southern District of New York

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ Plaintiffs, eight major United States motion picture studios, distribute many of their copyrighted motion pictures for home use on digital versatile disks (“DVDs”) , which contain copies of the motion pictures in digital form. They protect those motion pictures from copying by using an encryption system called CSS. CSS-protected motion pictures on DVDs may be viewed only on players and computer drives equipped with licensed technology that permits the devices to decrypt and play—but not to copy—the films. ”

“ They contend that the advent of new technology should not alter this long established structure.
Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era. ”

“ 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. ”

“ 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. ”

“ Defendants are not the first to recognize that possibility. As the DMCA made its way through the legislative process, Congress was preoccupied with precisely this issue. Proponents of strong restrictions on circumvention of access control measures argued that they were essential if copyright holders were to make their works available in digital form because digital works otherwise could be pirated too easily. Opponents contended that strong anti-circumvention measures would extend the copyright monopoly inappropriately and prevent many fair uses of copyrighted material. ”

“ DeCSS is a free, effective and fast means of decrypting plaintiffs’ DVDs and copying them to computer hard drives. DivX, which is available over the Internet for nothing, with the investment of some time and effort, permits compression of the decrypted files to sizes that readily fit on a writeable CD-ROM. Copies of such CD-ROMs can be produced very cheaply and distributed as easily as other pirated intellectual property. ”

“ 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. ”

“ The bill does define the functions of the technological measures that are covered—that is, what it means for a technological measure to ‘effectively control access to a work’ ... and to ‘effectively protect a right of a copyright owner under this title’ .... The practical, common-sense approach taken by H.R.2281 is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work ... then the ‘effectiveness’ test is met, and the prohibitions of the statute are applicable. ”

“ They “are the mainstay of the Internet and indispensable to its convenient access to the vast world of information.” [253] They often are used in ways that do a great deal to promote the free exchange of ideas and information that is a central value of our nation. Anything that would impose strict liability on a web site operator for the entire contents of any web site to which the operator linked therefore would raise grave constitutional concerns, as web site operators would be inhibited from linking for fear of exposure to liability. ”

“ As the earlier discussion demonstrates, the question whether the development of a Linux DVD player motivated those who wrote DeCSS is immaterial to the question whether the defendants now before the Court violated the anti-trafficking provision of the DMCA. The inescapable facts are that (1) CSS is a technological means that effectively controls access to plaintiffs’ copyrighted works, (2) the one and only function of DeCSS is to circumvent CSS, and (3) defendants offered and provided DeCSS by posting it on their web site. ”

“ The Vocabulary of this Case Computers and Operating Systems A computer is “a digital information processing device . . . . consist [ing] of central processing components . . . and mass data storage . . . . certain peripheral input/output devices . . . , and an operating system.” Personal computers (“PCs”) are computers designed for use by one person at a time. “ [M] ore powerful, more expensive computer systems known as ‘servers’ . . . are designed to provide data, services, and functionality through a digital network to multiple users.” ”