KAPLAN, District Judge.
Contents I. The Genesis of the Controversy ................................................ 305 A. The Vocabulary of this Case ............................................... 305 1. Computers and Operating Systems ....................................... 305
2. Computer Code ......................................................... 305 3. The Internet and the World Wide Web ................................... 306 4. Portable Storage Media ................................................ 307 5. The Technology Here at Issue .......................................... 308 B. Parties ................................................................... 308 C. The Development of DVD and CSS ............................................ 309 D. The Appearance of DeCSS ................................................... 311 E. The Distribution of DeCSS ................................................. 311 F. The Preliminary Injunction and Defendants' Response ....................... 312 G. Effects on Plaintiffs ..................................................... 313 II. The Digital Millennium Copyright Act .......................................... 315 A. Background and Structure of the Statute ................................... 315 B. Posting of DeCSS .......................................................... 316 1. Violation of Anti-Trafficking Provision ............................... 316 a. Section 1201(a)(2)(A) ............................................. 317 (1) CSS Effectively Controls Access to Copyrighted Works .......... 317 (2) DeCSS Was Designed Primarily to Circumvent CSS ................ 318 b. Section 1201(a)(2)(B) ............................................. 319 c. The Linux Argument ................................................ 319 2. Statutory Exceptions .................................................. 319 a. Reverse engineering ............................................... 319 b. Encryption research ............................................... 320 c. Security testing .................................................. 321 d. Fair use .......................................................... 321 C. Linking to Sites Offering DeCSS ........................................... 324 III. The First Amendment............................................................ 325 A. Computer Code and the First Amendment ..................................... 326 B. The Constitutionality of the DMCA's Anti-Trafficking Provision ............ 327 1. Defendants' Alleged Right to Disseminate DeCSS ........................ 327 2. Prior Restraint ....................................................... 333 3. Overbreadth ........................................................... 336 4. Vagueness ............................................................. 339 C. Linking ................................................................... 339 IV. Relief ........................................................................ 341 A. Injury to Plaintiffs....................................................... 341 B. Permanent Injunction and Declaratory Relief ............................... 342 V. Miscellaneous Contentions ..................................................... 345 VI. Conclusion..................................................................... 345
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.
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. Plaintiffs promptly brought this action under the Digital Millennium Copyright Act (the "DMCA")
Defendants contend that their actions do not violate the DMCA and, in any case, that the DMCA, as applied to computer programs, or code, violates the First Amendment.
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.
Technological access control measures have the capacity to prevent fair uses of copyrighted works as well as foul. Hence, there is a potential tension between the use of such access control measures and fair use. 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.
Congress struck a balance. The compromise it reached, depending upon future technological and commercial developments, may or may not prove ideal.
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. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action.
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
I. The Genesis of the Controversy
As this case involves computers and technology with which many are unfamiliar, it is useful to begin by defining some of the vocabulary.
A. The Vocabulary of this Case
1. 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."
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.'"
Microsoft Windows ("Windows") is an operating system released by Microsoft Corp. It is the most widely used operating system for PCs in the United States, and its versions include Windows 95, Windows 98, Windows NT and Windows 2000.
Linux, which was and continues to be developed through the open source model of software development,
2. Computer Code
"[C]omputers come down to one basic premise: They operate with a series of on and off switches, using two digits in the binary (base 2) number system — 0 (for off) and 1 (for on)."
"The smallest unit of memory in a computer," a bit, "is a switch with a value of
Some highly skilled human beings can reduce data and instructions to strings of 1's and 0's and thus program computers to perform complex tasks by inputting commands and data in that form.
The distinction between source and object code is not as crystal clear as first appears. Depending upon the programming language, source code may contain many 1's and 0's and look a lot like object code or may contain many instructions derived from spoken human language. Programming languages the source code for which approaches object code are referred to as low level source code while those that are more similar to spoken language are referred to as high level source code.
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.
3. 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."
Internet Relay Chat ("IRC") is a system that enables individuals connected to the Internet to participate in live typed discussions.
The World Wide Web (the "Web") is "a massive collection of digital information resources stored on servers throughout the Internet. These resources are typically provided in the form of hypertext documents, commonly referred to as `Web pages,' that may incorporate any combination of text, graphics, audio and video content, software programs, and other data. A user of a computer connected to the Internet can publish a page on the Web simply by copying it into a specially designated, publicly accessible directory on a Web server. Some Web resources are in the form of applications that provide functionality through a user's PC system but actually execute on a server."
A web site is "a collection of Web pages [published on the Web by an individual or organization] .... Most Web pages are in the form of `hypertext'; that is, they contain annotated references, or `hyperlinks,' to other Web pages. Hyperlinks can be used as cross-references within a single document, between documents on the same site, or between documents on different sites."
A home page is "one page on each Web site ... [that typically serves as] the first access point to the site. The home page is usually a hypertext document that presents an overview of the site and hyperlinks to the other pages comprising the site."
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."
4. Portable Storage Media
Digital files may be stored on several different kinds of storage media, some of which are readily transportable. Perhaps the most familiar of these are so called floppy disks or "floppies," which now are 3½ inch magnetic disks upon which digital files may be recorded.
A CD-ROM is a five-inch wide optical disk capable of storing approximately 650 MB of data. To read the data on a CD-ROM, a computer must have a CD-ROM drive.
DVDs are five-inch wide disks capable of storing more than 4.7 GB of data. In the application relevant here, they are used to hold full-length motion pictures in digital form. They are the latest technology for private home viewing of recorded motion pictures and result in drastically improved audio and visual clarity and quality of motion pictures shown on televisions or computer screens.
5. The Technology Here at Issue
CSS, or Content Scramble System, is an access control and copy prevention system for DVDs developed by the motion picture companies, including plaintiffs.
DeCSS is a software utility, or computer program, that enables users to break the CSS copy protection system and hence to view DVDs on unlicensed players and make digital copies of DVD movies.
DivX is a compression program available for download over the Internet.
Plaintiffs are eight major motion picture studios. Each is in the business of producing and distributing copyrighted material including motion pictures. Each distributes, either directly or through affiliates, copyrighted motion pictures on DVDs.
Defendant Eric Corley is viewed as a leader of the computer hacker community and goes by the name Emmanuel Goldstein, after the leader of the underground in George Orwell's classic, 1984.
Prior to January 2000, when this action was commenced, defendants posted the source and object code for DeCSS on the 2600.com web site, from which they could be downloaded easily.
C. The Development of DVD and CSS
The major motion picture studios typically distribute films in a sequence of so-called windows, each window referring to a separate channel of distribution and thus to a separate source of revenue. The first window generally is theatrical release, distribution, and exhibition. Subsequently, films are distributed to airlines and hotels, then to the home market, then to pay television, cable and, eventually, free television broadcast. The home market is important to plaintiffs, as it represents a significant source of revenue.
Motion pictures first were, and still are, distributed to the home market in the form of video cassette tapes. In the early 1990's, however, the major movie studios began to explore distribution to the home market in digital format, which offered substantially higher audio and visual quality and greater longevity than video cassette tapes.
Discussions among the studios with the goal of organizing a unified response to the piracy threat began in earnest in late 1995 or early 1996.
CSS involves encrypting, according to an encryption algorithm,
As the motion picture companies did not themselves develop CSS and, in any case, are not in the business of making DVD players and drives, the technology for making compliant devices, i.e., devices with CSS keys, had to be licensed to consumer electronics manufacturers.
With CSS in place, the studios introduced DVDs on the consumer market in early 1997.
DVDs have proven not only popular, but lucrative for the studios. Revenue from their sale and rental currently accounts for a substantial percentage of the movie studios' revenue from the home video market.
D. The Appearance of DeCSS
In late September 1999, Jon Johansen, a Norwegian subject then fifteen years of age, and two individuals he "met" under pseudonyms over the Internet, reverse engineered a licensed DVD player and discovered the CSS encryption algorithm and keys.
Although Mr. Johansen testified at trial that he created DeCSS in order to make a DVD player that would operate on a computer running the Linux operating system,
In January 1999, Norwegian prosecutors filed charges against Mr. Johansen stemming from the development of DeCSS.
E. The Distribution of DeCSS
In the months following its initial appearance on Mr. Johansen's web site, DeCSS has become widely available on the Internet, where hundreds of sites now purport to offer the software for download.
F. The Preliminary Injunction and Defendants' Response
The movie studios, through the Internet investigations division of the Motion Picture Association of America ("MPAA"), became aware of the availability of DeCSS on the Internet in October 1999.
After a hearing at which defendants presented no affidavits or evidentiary material, the Court granted plaintiffs' motion for a preliminary injunction barring defendants from posting DeCSS.
Following the issuance of the preliminary injunction, defendants removed DeCSS from the 2600.com web site.
Thus, defendants obviously hoped to frustrate plaintiffs' recourse to the judicial system by making effective relief difficult or impossible.
At least some of the links currently on defendants' mirror list lead the user to copies of DeCSS that, when downloaded and executed, successfully decrypt a motion picture on a CSS-encrypted DVD.
G. Effects on Plaintiffs
The effect on plaintiffs of defendants' posting of DeCSS depends upon the ease with which DeCSS decrypts plaintiffs' copyrighted motion pictures, the quality of the resulting product, and the convenience with which decrypted copies may be transferred or transmitted.
As noted, DeCSS was available for download from defendants' web site and remains available from web sites on defendants' mirror list.
The decryption of a CSS-protected DVD is only the beginning of the tale, as the decrypted file is very large — approximately 4.3 to 6 GB or more depending on the length of the film
DivX is capable of compressing decrypted files constituting a feature length motion picture to approximately 650 MB at a compression ratio that involves little loss of quality.
The fact that DeCSS-decrypted DVDs can be compressed satisfactorily to 650 MB is very important. A writeable CD-ROM can hold 650 MB.
Network transmission of decrypted motion pictures raises somewhat more difficult issues because even 650 MB is a very large file that, depending upon the circumstances, may take a good deal of time to transmit. But there is tremendous variation in transmission times. Many home computers today have modems with a rated capacity of 56 kilobits per second. DSL lines, which increasingly are available to home and business users, offer transfer rates of 7 megabits per second.
At trial, defendants repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated,
The net of all this is reasonably plain. 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. While not everyone with Internet access now will find it convenient to send or receive DivX'd copies of pirated motion pictures over the Internet, the availability of high speed network connections in many businesses and institutions, and their growing availability in homes, make Internet and other network traffic in pirated copies a growing threat.
These circumstances have two major implications for plaintiffs. First, the availability of DeCSS on the Internet effectively has compromised plaintiffs' system of copyright protection for DVDs, requiring them either to tolerate increased piracy or to expend resources to develop and implement a replacement system unless the availability of DeCSS is terminated.
Second, the application of DeCSS to copy and distribute motion pictures on DVD, both on CD-ROMs and via the Internet, threatens to reduce the studios' revenue from the sale and rental of DVDs. It threatens also to impede new, potentially lucrative initiatives for the distribution of motion pictures in digital form, such as video-on-demand via the Internet.
In consequence, plaintiffs already have been gravely injured. As the pressure for and competition to supply more and more users with faster and faster network connections grows, the injury will multiply.
II. The Digital Millennium Copyright Act
A. Background and Structure of the Statute
In December 1996, the World Intellectual Property Organization ("WIPO"), held a diplomatic conference in Geneva that led to the adoption of two treaties. Article 11 of the relevant treaty, the WIPO Copyright
The adoption of the WIPO Copyright Treaty spurred continued Congressional attention to the adaptation of the law of copyright to the digital age. Lengthy hearings involving a broad range of interested parties both preceded and succeeded the Copyright Treaty. As noted above, a critical focus of Congressional consideration of the legislation was the conflict between those who opposed anti-circumvention measures as inappropriate extensions of copyright and impediments to fair use and those who supported them as essential to proper protection of copyrighted materials in the digital age.
The DMCA contains two principal anti-circumvention provisions. The first, Section 1201(a)(1), governs "[t]he act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work," an act described by Congress as "the electronic equivalent of breaking into a locked room in order to obtain a copy of a book."
B. Posting of DeCSS
1. Violation of Anti-Trafficking Provision
Section 1201(a)(2) of the Copyright Act, part of the DMCA, provides that:
In this case, defendants concededly offered and provided and, absent a court order, would continue to offer and provide DeCSS to the public by making it available for download on the 2600.com web site. DeCSS, a computer program, unquestionably is "technology" within the meaning of the statute.
a. Section 1201(a)(2)(A)
(1) CSS Effectively Controls Access to Copyrighted Works
During pretrial proceedings and at trial, defendants attacked plaintiffs' Section 1201(a)(2)(A) claim, arguing that CSS, which is based on a 40-bit encryption key, is a weak cipher that does not "effectively control" access to plaintiffs' copyrighted works. They reasoned from this premise that CSS is not protected under this branch of the statute at all. Their post-trial memorandum appears to have abandoned this argument. In any case, however, the contention is indefensible as a matter of law.
First, the statute expressly provides that "a technological measure `effectively controls access to a work' if 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 a work."
This view is confirmed by the legislative history, which deals with precisely this point. The House Judiciary Committee section-by-section analysis of the House bill, which in this respect was enacted into law, makes clear that a technological measure "effectively controls access" to a copyrighted work if its function is to control access:
Further, the House Commerce Committee made clear that measures based on encryption or scrambling "effectively control" access to copyrighted works,
Finally, the interpretation of the phrase "effectively controls access" offered by defendants at trial — viz., that the use of the word "effectively" means that the statute protects only successful or efficacious technological means of controlling access — would gut the statute if it were adopted. 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. The Court declines to do so. Accordingly, the Court holds that CSS effectively controls access to plaintiffs' copyrighted works.
(2) DeCSS Was Designed Primarily to Circumvent CSS
As CSS effectively controls access to plaintiffs' copyrighted works, the only remaining question under Section 1201(a)(2)(A) is whether DeCSS was designed primarily to circumvent CSS. The
b. Section 1201(a)(2)(B)
As the only purpose or use of DeCSS is to circumvent CSS, the foregoing is sufficient to establish a prima facie violation of Section 1201(a)(2)(B) as well.
c. The Linux Argument
Perhaps the centerpiece of defendants' statutory position is the contention that DeCSS was not created for the purpose of pirating copyrighted motion pictures. Rather, they argue, it was written to further the development of a DVD player that would run under the Linux operating system, as there allegedly were no Linux compatible players on the market at the time.
As noted, Section 1201(a) of the DMCA contains two distinct prohibitions. Section 1201(a)(1), the so-called basic provision, "aims against those who engage in unauthorized circumvention of technological measures.... [It] focuses directly on wrongful conduct, rather than on those who facilitate wrongful conduct...."
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. Whether defendants did so in order to infringe, or to permit or encourage others to infringe, copyrighted works in violation of other provisions of the Copyright Act simply does not matter for purposes of Section 1201(a)(2). The offering or provision of the program is the prohibited conduct — and it is prohibited irrespective of why the program was written, except to whatever extent motive may be germane to determining whether their conduct falls within one of the statutory exceptions.
2. Statutory Exceptions
Earlier in the litigation, defendants contended that their activities came within several exceptions contained in the DMCA and the Copyright Act and constitute fair use under the Copyright Act. Their post-trial memorandum appears to confine their argument to the reverse engineering exception.
a. Reverse engineering
Defendants claim to fall under Section 1201(f) of the statute, which provides
First, Section 1201(f)(3) permits information acquired through reverse engineering to be made available to others only by the person who acquired the information. But these defendants did not do any reverse engineering. They simply took DeCSS off someone else's web site and posted it on their own.
Defendants would be in no stronger position even if they had authored DeCSS. The right to make the information available extends only to dissemination "solely for the purpose" of achieving interoperability as defined in the statute. It does not apply to public dissemination of means of circumvention, as the legislative history confirms.
Finally, it is important to recognize that even the creators of DeCSS cannot credibly maintain that the "sole" purpose of DeCSS was to create a Linux DVD player. DeCSS concededly was developed on and runs under Windows — a far more widely used operating system. The developers of DeCSS therefore knew that DeCSS could be used to decrypt and play DVD movies on Windows as well as Linux machines. They knew also that the decrypted files could be copied like any other unprotected computer file. Moreover, the Court does not credit Mr. Johansen's testimony that he created DeCSS solely for the purpose of building a Linux player. Mr. Johansen is a very talented young man and a member of a well known hacker group who viewed "cracking" CSS as an end it itself and a means of demonstrating his talent and who fully expected that the use of DeCSS would not be confined to Linux machines. Hence, the Court finds that Mr. Johansen and the others who actually did develop DeCSS did not do so solely for the purpose of making a Linux DVD player if, indeed, developing a Linux-based DVD player was among their purposes.
Accordingly, the reverse engineering exception to the DMCA has no application here.
b. Encryption research
Section 1201(g)(4) provides in relevant part that:
Paragraph (2) in relevant part permits circumvention of technological measures in the course of good faith encryption research if:
"(D) such act does not constitute infringement under this title...."
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.
Neither of the defendants remaining in this case was or is involved in good faith encryption research.
c. Security testing
Defendants contended earlier that their actions should be considered exempt security testing under Section 1201(j) of the statute.
The record does not indicate that DeCSS has anything to do with testing computers, computer systems, or computer networks. Certainly defendants sought, and plaintiffs' granted, no authorization for defendants' activities. This exception therefore has no bearing in this case.
d. Fair use
Finally, defendants rely on the doctrine of fair use. Stated in its most general terms, the doctrine, now codified in Section 107 of the Copyright Act,
The use of technological means of controlling access to a copyrighted work may affect the ability to make fair uses of the work.
Defendants have focused on a significant point. Access control measures such as CSS do involve some risk of preventing lawful as well as unlawful uses of copyrighted material. Congress, however, clearly faced up to and dealt with this question in enacting the DMCA.
The Court begins its statutory analysis, as it must, with the language of the statute. Section 107 of the Copyright Act provides in critical part that certain uses of copyrighted works that otherwise would be wrongful are "not ... infringement[s] of copyright."
Congress was well aware during the consideration of the DMCA of the traditional role of the fair use defense in accommodating the exclusive rights of copyright owners with the legitimate interests of noninfringing users of portions of copyrighted works. It recognized the contention, voiced by a range of constituencies concerned with the legislation, that technological controls on access to copyrighted works might erode fair use by preventing access even for uses that would be deemed "fair" if only access might be gained.
Second, Congress delayed the effective date of Section 1201(a)(1)'s prohibition of the act of circumvention for two years pending further investigation about how best to reconcile Section 1201(a)(1) with fair use concerns. Following that investigation, which is being carried out in the form of a rule-making by the Register of Copyright, the prohibition will not apply to users of particular classes of copyrighted works who demonstrate that their ability to make noninfringing uses of those classes of works would be affected adversely by Section 1201(a)(1).
Third, it created a series of exceptions to aspects of Section 1201(a) for certain uses that Congress thought "fair," including reverse engineering, security testing, good faith encryption research, and certain uses by nonprofit libraries, archives and educational institutions.
Defendants claim also that the possibility that DeCSS might be used for the purpose of gaining access to copyrighted works in order to make fair use of those works saves them under Sony Corp. v. Universal City Studios, Inc.
Sony was a suit for contributory infringement brought against manufacturers of video cassette recorders on the theory that the manufacturers were contributing to infringing home taping of copyrighted television broadcasts. The Supreme Court held that the manufacturers were not liable in view of the substantial numbers of copyright holders who either had authorized or did not object to such taping by viewers.
When Sony was decided, the only question was whether the manufacturers could be held liable for infringement by those who purchased equipment from them in circumstances in which there were many noninfringing uses for their equipment. But that is not the question now before this Court. The question here is whether the possibility of noninfringing fair use by someone who gains access to a protected copyrighted work through a circumvention technology distributed by the defendants saves the defendants from liability under Section 1201. But nothing in Section 1201 so suggests. By prohibiting the provision of circumvention technology, the DMCA fundamentally altered the landscape. A given device or piece of technology might have "a substantial noninfringing use, and hence be immune from attack under Sony's construction of the Copyright Act — but nonetheless still be subject to suppression under Section 1201."
The policy concerns raised by defendants were considered by Congress. Having considered them, Congress crafted a statute that, so far as the applicability of the fair use defense to Section 1201(a) claims is concerned, is crystal clear. In such circumstances, courts may not undo what Congress so plainly has done by "construing" the words of a statute to accomplish a result that Congress rejected. 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, a matter to which the Court turns below. Defendants' statutory fair use argument therefore is entirely without merit.
C. Linking to Sites Offering DeCSS
Plaintiffs seek also to enjoin defendants from "linking" their 2600.com web site to other sites that make DeCSS available to users. Their request obviously stems in no small part from what defendants themselves have termed their act of "electronic civil disobedience" — their attempt to defeat the purpose of the preliminary injunction by (a) offering the practical equivalent of making DeCSS available on their own web site by electronically linking users to other sites still offering DeCSS, and (b) encouraging other sites that had not been enjoined to offer the program. The dispositive question is whether linking to another web site containing DeCSS constitutes "offer[ing DeCSS] to the public" or "provid[ing] or otherwise traffic[king]" in it within the meaning of the DMCA.
Most web pages are written in computer languages, chiefly HTML, which allow the programmer to prescribe the appearance of the web page on the computer screen and, in addition, to instruct the computer to perform an operation if the cursor is placed over a particular point on the screen and the mouse then clicked.
As noted earlier, the links that defendants established on their web site are of several types. Some transfer the user to a web page on an outside site that contains a good deal of information of various types, does not itself contain a link to DeCSS, but that links, either directly or via a series of other pages, to another page on the same site that posts the software. It then is up to the user to follow the link or series of links on the linked-to web site in order to arrive at the page with the DeCSS link and commence the download of the software. Others take the user to a page on an outside web site on which there appears a direct link to the DeCSS software and which may or may not contain text or links other than the DeCSS link. The user has only to click on the DeCSS link to commence the download. Still others may directly transfer the user to a file on the linked-to web site such that the download of DeCSS to the user's computer automatically
The statute makes it unlawful to offer, provide or otherwise traffic in described technology.
To the extent that defendants have linked to sites that automatically commence the process of downloading DeCSS upon a user being transferred by defendants' hyperlinks, there can be no serious question. Defendants are engaged in the functional equivalent of transferring the DeCSS code to the user themselves.
Substantially the same is true of defendants' hyperlinks to web pages that display nothing more than the DeCSS code or present the user only with the choice of commencing a download of DeCSS and no other content. The only distinction is that the entity extending to the user the option of downloading the program is the transferee site rather than defendants, a distinction without a difference.
Potentially more troublesome might be links to pages that offer a good deal of content other than DeCSS but that offer a hyperlink for downloading, or transferring to a page for downloading, DeCSS. If one assumed, for the purposes of argument, that the Los Angeles Times web site somewhere contained the DeCSS code, it would be wrong to say that anyone who linked to the Los Angeles Times web site, regardless of purpose or the manner in which the link was described, thereby offered, provided or otherwise trafficked in DeCSS merely because DeCSS happened to be available on a site to which one linked.
III. The First Amendment
Defendants argue that the DMCA, at least as applied to prevent the public dissemination of DeCSS, violates the First Amendment to the Constitution. They claim that it does so in two ways. First, they argue that computer code is protected speech and that the DMCA's prohibition of dissemination of DeCSS therefore violates defendants' First Amendment rights. Second, they contend that the DMCA is unconstitutionally
A. Computer Code and the First Amendment
The premise of defendants' first position is that computer code, the form in which DeCSS exists, is speech protected by the First Amendment. Examination of that premise is the logical starting point for analysis. And it is important in examining that premise first to define terms.
Defendants' assertion that computer code is "protected" by the First Amendment is quite understandable. Courts often have spoken of certain categories of expression as "not within the area of constitutionally protected speech,"
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. As one moves from one to the other, the levels of precision and, arguably, abstraction increase, as does the level of training necessary to discern the idea from the expression. Not everyone can understand each of these forms. Only English speakers will understand English formulations. Principally those familiar with the particular programming language will understand the source code expression. And only a relatively small number of skilled programmers and computer scientists will understand the machine readable object code. But each form expresses the same idea, albeit in different ways.
There perhaps was a time when the First Amendment was viewed only as a limitation on the ability of government to censor speech in advance.
B. The Constitutionality of the DMCA's Anti-Trafficking Provision
1. Defendants' Alleged Right to Disseminate DeCSS
Defendants first attack Section 1201(a)(2), the anti-trafficking provision, as applied to them on the theory that DeCSS is constitutionally protected expression and that the statute improperly prevents them from communicating it. Their attack presupposes that a characterization of code as constitutionally protected subjects any regulation of code to the highest level of First Amendment scrutiny. As we have seen, however, this does not necessarily follow.
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. The Supreme Court has evolved an analytical framework by which the permissibility of particular restrictions on the expression of ideas must determined.
Broadly speaking, restrictions on expression fall into two categories. Some are restrictions on the voicing of particular ideas, which typically are referred to as content based restrictions. Others have nothing to do with the content of the expression — i.e., they are content neutral — but they have the incidental effect of limiting expression.
In general, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content...."
Content neutral restrictions, in contrast, are measured against a less exacting standard. Because restrictions of this type are not motivated by a desire to limit the message, they will be upheld if they serve a substantial governmental interest
Restrictions on the nonspeech elements of expressive conduct fall into the conduct-neutral category. The Supreme Court long has distinguished for First Amendment purposes between pure speech, which ordinarily receives the highest level of protection, and expressive conduct.
Thus, the starting point for analysis is whether the DMCA, as applied to restrict dissemination of DeCSS and other computer code used to circumvent access control measures, is a content based restriction on speech or a content neutral regulation. Put another way, the question is the level of review that governs the DMCA's anti-trafficking provision as applied to DeCSS — the strict scrutiny standard applicable to content based regulations or the intermediate level applicable to content neutral regulations, including regulations of the nonspeech elements of expressive conduct.
Given the fact that DeCSS code is expressive, defendants would have the Court leap immediately to the conclusion that Section 1201(a)(2)'s prohibition on providing DeCSS necessarily is content based regulation of speech because it suppresses dissemination of a particular kind of expression.
The "principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys."
The reason that Congress enacted the anti-trafficking provision of the DMCA had nothing to do with suppressing particular ideas of computer programmers and everything to do with functionality — with preventing people from circumventing technological access control measures — just as laws prohibiting the possession of burglar tools have nothing to do with preventing people from expressing themselves by accumulating what to them may be attractive assortments of implements and everything to do with preventing burglaries. Rather, it is focused squarely upon the effect of the distribution of the functional capability that the code provides. Any impact on the dissemination of programmers' ideas is purely incidental to the overriding concerns of promoting the distribution of copyrighted works in digital form while at the same time protecting those works from piracy and other violations of the exclusive rights of copyright holders.
These considerations suggest that the DMCA as applied here is content neutral, a view that draws support also from City of Renton v. Playtime Theatres, Inc.
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. Such a regulation will be upheld if:
Moreover, "[t]o satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government's interests."
The anti-trafficking provision of the DMCA furthers an important governmental interest — the protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in this electronic age. The substantiality of that interest is evident both from the fact that the Constitution specifically empowers Congress to provide for copyright protection
This analysis finds substantial support in the principal case relied upon by defendants, Junger v. Daley.
Notwithstanding its adoption by the Sixth Circuit, the focus on functionality in order to determine the level of scrutiny is not an inevitable consequence of the speech-conduct distinction. 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.
The characterization of functionality as a proxy for the consequences of use is accurate. 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. There are far too many who, given any opportunity, will bypass those security measures, some for the sheer joy of doing it, some for innocuous reasons, and others for more malevolent purposes. Given the virtually instantaneous and worldwide dissemination widely available via the Internet, the only rational assumption is that once a computer program capable of bypassing such an access control system is disseminated, it will be used. And that is not all.
There was a time when copyright infringement could be dealt with quite adequately by focusing on the infringing act. If someone wished to make and sell high quality but unauthorized copies of a copyrighted book, for example, the infringer needed a printing press. 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. They likewise are capable of transmitting perfect copies of the decrypted DVD. The process potentially is exponential rather than linear. Indeed, the difference is illustrated by comparison of two epidemiological models describing the spread of different kinds of disease.
This disease metaphor is helpful here. The book infringement hypothetical is analogous to a common source outbreak epidemic. Shut down the printing press (the poisoned well) and one ends the infringement (the disease outbreak). The spread of means of circumventing access to copyrighted works in digital form, however, is analogous to a propagated outbreak epidemic. Finding the original source of infection (e.g., the author of DeCSS or the first person to misuse it) accomplishes nothing, as the disease (infringement made possible by DeCSS and the resulting availability of decrypted DVDs) may continue to spread from one person who gains access to the circumvention program or decrypted DVD to another. And each is "infected," i.e., each is as capable of making perfect copies of the digital file containing the copyrighted work as the author of the program or the first person to use it for improper purposes. The disease metaphor breaks down principally at the final point. Individuals infected with a real disease become sick, usually are driven by obvious self-interest to seek medical attention, and are cured of the disease if medical science is capable of doing so. Individuals infected with the "disease" of capability of circumventing measures controlling access to copyrighted works in digital form, however, do not suffer from having that ability. They cannot be relied upon to identify themselves to those seeking to control the "disease." And their self-interest will motivate some to misuse the capability, a misuse that; in practical terms, often will be untraceable.
These considerations drastically alter consideration of the causal link between dissemination of computer programs such as this and their illicit use. Causation in the law ultimately involves practical policy judgments.
Accordingly, this Court holds that the anti-trafficking provision of the DMCA as applied to the posting of computer code that circumvents measures that control access to copyrighted works in digital form is a valid exercise of Congress' authority. It is a content neutral regulation in furtherance of important governmental interests that does not unduly restrict expressive activities. In any case, its particular functional characteristics are such that the Court would apply the same level of scrutiny
2. Prior Restraint
Defendants argue also that injunctive relief against dissemination of DeCSS is barred by the prior restraint doctrine. The Court disagrees.
Few phrases are as firmly rooted in our constitutional jurisprudence as the maxim that "[a]ny system of prior restraints of expression comes to [a] Court bearing a heavy presumption against its constitutional validity."
The classic prior restraint cases were dramatically different from this one. Near v. Minnesota
In this case, the considerations supporting an injunction are very substantial indeed. Copyright and, more broadly, intellectual property piracy are endemic, as Congress repeatedly has found.
On the other side of the coin, the First Amendment interests served by the dissemination of DeCSS on the merits are minimal. The presence of some expressive content in the code should not obscure the fact of its predominant functional character — it is first and foremost a means of causing a machine with which it is used to perform particular tasks. Hence, those of the traditional rationales for the prior restraint doctrine that relate to inhibiting the transmission and receipt of ideas are of attenuated relevance here. Indeed, even academic commentators who take the extreme position that most injunctions in intellectual property cases are unconstitutional prior restraints concede that there is no First Amendment obstacle to injunctions barring distribution of copyrighted computer object code or restraining the construction of a new building based on copyrighted architectural drawings because the functional aspects of these types of information are "sufficiently nonexpressive."
To be sure, there is much to be said in most circumstances for the usual procedural rationale for the prior restraint doctrine: prior restraints carry with them the risk of erroneously suppressing expression that could not constitutionally be punished
Defendants' second focus is the contention that Section 1201(a)(2) is unconstitutional because it prevents others from making fair use of copyrighted works by depriving them of the means of circumventing plaintiffs' access control system.
As a general proposition, "a person to whom a statute constitutionally may be applied may not challenge that statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the Court."
Factors arguing against use of the overbreadth doctrine are present here. To begin with, we do not here have a complete view of whether the interests of the absent third parties upon whom defendants rely really are substantial and, in consequence, whether the DMCA as applied here would materially affect their ability to make fair use of plaintiffs' copyrighted works.
The copyrighted works at issue, of course, are motion pictures. People use copies of them in DVD and other formats for various purposes, and we confine our consideration to the lawful purposes, which by definition are noninfringing or fair uses. The principal noninfringing use is to play the DVD for the purpose of watching the movie — viewing the images and hearing the sounds that are synchronized with them. Fair uses are much more varied. A movie reviewer might wish to quote a portion of the verbal script in an article or broadcast review. A television station might want to broadcast part of a particular scene to illustrate a review, a news story about a performer, or a story about particular trends in motion pictures. A musicologist perhaps would wish to play a portion of a musical sound track. A film scholar might desire to create and exhibit to students small segments of several different films to make some comparative point about the cinematography or some other characteristic. Numerous other examples doubtless could be imagined. But each necessarily involves one or more of three types of use: (1) quotation of the words of the script, (2) listening to the recorded sound track, including both verbal and non-verbal elements, and (3) viewing of the graphic images.
All three of these types of use now are affected by the anti-trafficking provision of the DMCA, but probably only to a trivial degree. To begin with, all or substantially all motion pictures available on DVD are available also on videotape.
The DMCA does have a notable potential impact on uses that copy portions of a DVD movie because compliant DVD players are designed so as to prevent copying. In consequence, even though the fair use doctrine permits limited copying of copyrighted works in appropriate circumstances, the CSS encryption of DVD movies, coupled with the characteristics of licensed DVD players, limits such uses absent circumvention of CSS.
As the foregoing suggests, the interests of persons wishing to circumvent CSS in order to make lawful use of the copyrighted movies it protects are remarkably varied. Some presumably are technologically sophisticated and therefore capable of circumventing CSS without access to defendants' or other purveyors' decryption programs; many presumably are not. Many of the possible fair uses may be made without circumventing CSS while others, i.e., those requiring copying, may not. Hence, the question whether Section 1201(a)(2) as applied here substantially affects rights, much less constitutionally protected rights, of members of the "fair use community" cannot be decided in bloc, without consideration of the circumstances of each member or similarly situated groups of members. Thus, the prudential concern with ensuring that constitutional questions be decided only when the facts before the Court so require counsels against permitting defendants to mount an overbreadth challenge here.
Second, there is no reason to suppose here that prospective fair users will be deterred from asserting their alleged rights by fear of sanctions imposed by the DMCA or the Copyright Act.
Third, we do not deal here with "pure speech." Rather, the issue concerns dissemination of technology that is principally functional in nature. The same consideration that warrants restraint in applying the overbreadth doctrine to statutes regulating
Finally, there has been no persuasive evidence that the interests of persons who wish access to the CSS algorithm in order to study its encryption methodology or to evaluate theories regarding decryption raise serious problems. The statute contains an exception for good faith encryption research.
Accordingly, defendants will not be heard to mount an overbreadth challenge to the DMCA in this context.
Defendants argue also that the DMCA is unconstitutionally vague because the terms it employs are not understandable to persons of ordinary intelligence and because they are subject to discriminatory enforcement.
As the Supreme Court has made clear, one who "engages in some conduct that is clearly proscribed [by the challenged statute] cannot complain of the vagueness of the law as applied to the conduct of others."
As indicated above, the DMCA reaches links deliberately created by a web site operator for the purpose of disseminating technology that enables the user to circumvent access controls on copyrighted works. The question is whether it may do so consistent with the First Amendment.
Links bear a relationship to the information superhighway comparable to the relationship that roadway signs bear to roads but they are more functional. Like roadway signs, they point out the direction. Unlike roadway signs, they take one almost instantaneously to the desired destination with the mere click of an electronic mouse. Thus, like computer code in general, they have both expressive and functional elements. Also like computer code, they are within the area of First Amendment concern. Hence, the constitutionality of the DMCA as applied to defendants' linking is determined by the same O'Brien standard that governs trafficking in the circumvention technology generally.
There is little question that the application of the DMCA to the linking at issue in this case would serve, at least to some extent, the same substantial governmental interest as its application to defendants' posting of the DeCSS code. Defendants' posting and their linking amount to very much the same thing. Similarly, the regulation of the linking at issue here is "unrelated to the suppression of free expression" for the same reason as the regulation of the posting. The third prong of the O'Brien test as subsequently interpreted — whether the "regulation promotes a substantial government interest that would be achieved less effectively absent the regulation"
Links are "what unify the [World Wide] Web into a single body of knowledge, and what makes the Web unique."
The possible chilling effect of a rule permitting liability for or injunctions against Internet hyperlinks is a genuine concern. But it is not unique to the issue of linking. 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. And the solution to the problem is the same: the adoption of a standard of culpability sufficiently high to immunize the activity, whether it is publishing a newspaper or linking, except in cases in which the conduct in question has little or no redeeming constitutional value.
In the defamation area, this has been accomplished by a two-tiered constitutional standard. There may be no liability under the First Amendment for defamation of a public official or a public figure unless the plaintiff proves, by clear and convincing evidence, that the defendant published the offending statement with knowledge of its
The other concern — that a liability based on a link to another site simply because the other site happened to contain DeCSS or some other circumvention technology in the midst of other perfectly appropriate content could be overkill — also is readily dealt with. The offense under the DMCA is offering, providing or otherwise trafficking in circumvention technology. An essential ingredient, as explained above, is a desire to bring about the dissemination. Hence, a strong requirement of that forbidden purpose is an essential prerequisite to any liability for linking.
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.
In this case, plaintiffs have established by clear and convincing evidence that these defendants linked to sites posting DeCSS, knowing that it was a circumvention device. Indeed, they initially touted it as a way to get free movies,
A. Injury to Plaintiffs
The DMCA provides that "[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States court for such violation."
They begin with the assertion that plaintiffs have failed to prove that decrypted motion pictures actually are available.
Defendants next maintain that plaintiffs exaggerate the extent of the threatened injury. They claim that the studios in fact believe that DeCSS is not a threat.
Third, defendants contend that there is no evidence that any decrypted movies that may be available, if any there are, were decrypted with DeCSS. They maintain that "[m]any utilities and devices ... can decrypt DVDs equally well and often faster and with greater ease than by using DeCSS."
B. Permanent Injunction and Declaratory Relief
Plaintiffs seek a permanent injunction barring defendants from posting DeCSS on their web site and from linking their site to others that make DeCSS available.
The starting point, as always, is the statute. The DMCA provides in relevant part that the court in an action brought pursuant to its terms "may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation...."
In this case, it is quite likely that defendants, unless enjoined, will continue to violate the Act. Defendants are in the business of disseminating information to assist hackers in "cracking" various types of technological security systems. And while defendants argue that they promptly stopped posting DeCSS when enjoined preliminarily from doing so, thus allegedly demonstrating their willingness to comply with the law, their reaction to the preliminary injunction in fact cuts the other way. Upon being enjoined from posting DeCSS themselves, defendants encouraged others to "mirror" the information — that is, to post DeCSS — and linked their own web site to mirror sites in order to assist users of defendants' web site in obtaining DeCSS despite the injunction barring defendants from providing it directly. While there is no claim that this activity violated the letter of the preliminary injunction, and it therefore presumably was not contumacious, and while its status under the DMCA was somewhat uncertain, it was a studied effort to defeat the purpose of the preliminary injunction. In consequence, the Court finds that there is a substantial likelihood of future violations absent injunctive relief.
There also is little doubt that plaintiffs have no adequate remedy at law. The only potential legal remedy would be an action for damages under Section 1203(c), which provides for recovery of actual damages or, upon the election of the plaintiff, statutory damages of up to $2,500 per offer of DeCSS. Proof of actual damages in a case of this nature would be difficult if not
Defendants argue that an injunction in this case would be futile because DeCSS already is all over the Internet. They say an injunction would be comparable to locking the barn door after the horse is gone. And the Court has been troubled by that possibility. But the countervailing arguments overcome that concern.
To begin with, any such conclusion effectively would create all the wrong incentives by allowing defendants to continue violating the DMCA simply because others, many doubtless at defendants' urging, are doing so as well. 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 key to reconciling these views is that the focus of injunctive relief is on the defendants before the Court. If a plaintiff seeks to enjoin a defendant from burning a pasture, it is no answer that there is a wild fire burning in its direction. 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.
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."
V. Miscellaneous Contentions
There remain for consideration two other matters, plaintiffs' application for costs and attorney's fees and defendants' pre-trial complaints concerning discovery.
The DMCA permits awards of costs and attorney's fees to the prevailing party in the discretion of the Court.
A final word is in order in view of defendants' repeated pretrial claims that their discovery efforts were being thwarted. During the course of the trial, they applied for leave to take one deposition, which was granted. At no point did they make any showing that they were hampered in presenting their case or meeting the plaintiffs' case by virtue of any failure to obtain discovery. They applied for no continuance. They have not sought a new trial. And though they estimated that their case would take several weeks to present, the entire trial was completed in six days. Indeed, in the Court's view, the trial fully vindicated its pretrial assessment that there were, in actuality, very few genuinely disputed questions of material fact, and most of those involved expert testimony that was readily available to both sides.
In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved.
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.
Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs' favor. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment. Accordingly, plaintiffs are entitled to appropriate injunctive and declaratory relief.
The Court notes the receipt of a number of amicus submissions. Although many were filed by defendants' counsel on behalf of certain amici, and therefore were of debatable objectivity, the amicus submissions considered as a group were helpful.