UNIVERSAL CITY STUDIOS, INC. v. CORLEY

Before: NEWMAN and CABRANES, Circuit Judges, and THOMPSON,* District Judge.

JON O. NEWMAN, Circuit Judge.

I. CSS

II. DeCSS

Corley's article about DeCSS detailed how CSS was cracked, and described the movie industry's efforts to shut down web sites posting DeCSS. It also explained that DeCSS could be used to copy DVDs. At the end of the article, the Defendants posted copies of the object and source code of DeCSS. In Corley's words, he added the code to the story because "in a journalistic world, ... [y]ou have to show your evidence ... and particularly in the magazine that I work for, people want to see specifically what it is that we are referring to," including "what evidence ... we have" that there is in fact technology that circumvents CSS. Trial Tr. at 823. Writing about DeCSS without including the DeCSS code would have been, to Corley, "analogous to printing a story about a picture and not printing the picture." Id. at 825. Corley also added to the article links that he explained would take the reader to other web sites where DeCSS could be found. Id. at 791, 826, 827, 848.

2600.com was only one of hundreds of web sites that began posting DeCSS near the end of 1999. The movie industry tried to stem the tide by sending cease-and-desist letters to many of these sites. These efforts met with only partial success; a number of sites refused to remove DeCSS. In January 2000, the studios filed this lawsuit.8

III. The DMCA

The DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty ("WIPO Treaty"), which requires contracting parties to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law." WIPO Treaty, Apr. 12, 1997, art. 11, S. Treaty Doc. No. 105-17 (1997), available at 1997 WL 447232. Even before the treaty, Congress had been devoting attention to the problems faced by copyright enforcement in the digital age. Hearings on the topic have spanned several years. See, e.g., WIPO Copyright Treaties Implementation Act and Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 105th Cong. (1997); NII Copyright Protection Act of 1995: Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. (1996); NII Copyright Protection Act of 1995: Joint Hearing on H.R. 2441 and S. 1284 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary and the Senate Comm. on the Judiciary, 104th Cong. (1995); H.R.Rep. No. 105-551 (1998); S.Rep. No. 105-190 (1998). This legislative effort resulted in the DMCA.

The Act contains three provisions targeted at the circumvention of technological protections. The first is subsection 1201(a)(1)(A), the anti-circumvention provision.9 This provision prohibits a person from "circumvent[ing] a technological measure that effectively controls access to a work protected under [Title 17, governing copyright]." The Librarian of Congress is required to promulgate regulations every three years exempting from this subsection individuals who would otherwise be "adversely affected" in "their ability to make noninfringing uses." 17 U.S.C. § 1201(a)(1)(B)-(E).

The second and third provisions are subsections 1201(a)(2) and 1201(b)(1), the "anti-trafficking provisions." Subsection 1201(a)(2), the provision at issue in this case, provides:

Id. § 1201(a)(2). To "circumvent a technological measure" is defined, in pertinent part, as "to descramble a scrambled work ... or otherwise to ... bypass ... a technological measure, without the authority of the copyright owner." Id. § 1201(a)(3)(A).

Subsection 1201(b)(1) is similar to subsection 1201(a)(2), except that subsection 1201(a)(2) covers those who traffic in technology that can circumvent "a technological measure that effectively controls access to a work protected under" Title 17, whereas subsection 1201(b)(1) covers those who traffic in technology that can circumvent "protection afforded by a technological measure that effectively protects a right of a copyright owner under" Title 17. Id. § 1201(a)(2), (b)(1) (emphases added). In other words, although both subsections prohibit trafficking in a circumvention technology, the focus of subsection 1201(a)(2) is circumvention of technologies designed to prevent access to a work, and the focus of subsection 1201(b)(1) is circumvention of technologies designed to permit access to a work but prevent copying of the work or some other act that infringes a copyright. See S.Rep. No. 105-190, at 11-12 (1998). Subsection 1201(a)(1) differs from both of these anti-trafficking subsections in that it targets the use of a circumvention technology, not the trafficking in such a technology.

The DMCA contains exceptions for schools and libraries that want to use circumvention technologies to determine whether to purchase a copyrighted product, 17 U.S.C. § 1201(d); individuals using circumvention technology "for the sole purpose" of trying to achieve "interoperability" of computer programs through reverse-engineering, id. § 1201(f); encryption research aimed at identifying flaws in encryption technology, if the research is conducted to advance the state of knowledge in the field, id. § 1201(g); and several other exceptions not relevant here.

The DMCA creates civil remedies, id. § 1203, and criminal sanctions, id. § 1204. It specifically authorizes a court to "grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation." Id. § 1203(b)(1).

IV. Procedural History

Invoking subsection 1203(b)(1), the Plaintiffs sought an injunction against the Defendants, alleging that the Defendants violated the anti-trafficking provisions of the statute. On January 20, 2000, after a hearing, the District Court issued a preliminary injunction barring the Defendants from posting DeCSS. Universal City Studios, Inc. v. Reimerdes, 82 F.Supp.2d 211 (S.D.N.Y.2000).

The Defendants complied with the preliminary injunction, but continued to post links to other web sites carrying DeCSS, an action they termed "electronic civil disobedience." Universal I, 111 F.Supp.2d at 303, 312. Under the heading "Stop the MPAA [(Motion Picture Association of America)]," Corley urged other web sites to post DeCSS lest "we ... be forced into submission." Id. at 313.

The Plaintiffs then sought a permanent injunction barring the Defendants from both posting DeCSS and linking to sites containing DeCSS. After a trial on the merits, the Court issued a comprehensive opinion, Universal I, and granted a permanent injunction, Universal II.

The Court explained that the Defendants' posting of DeCSS on their web site clearly falls within section 1201(a)(2)(A) of the DMCA, rejecting as spurious their claim that CSS is not a technological measure that "effectively controls access to a work" because it was so easily penetrated by Johansen, Universal I, 111 F.Supp.2d at 318, and as irrelevant their contention that DeCSS was designed to create a Linux-platform DVD player, id. at 319. The Court also held that the Defendants cannot avail themselves of any of the DMCA's exceptions, id. at 319-22, and that the alleged importance of DeCSS to certain fair uses of encrypted copyrighted material was immaterial to their statutory liability, id. at 322-24. The Court went on to hold that when the Defendants "proclaimed on their own site that DeCSS could be had by clicking on the hyperlinks" on their site, they were trafficking in DeCSS, and therefore liable for their linking as well as their posting. Id. at 325.

Turning to the Defendants' numerous constitutional arguments, the Court first held that computer code like DeCSS is "speech" that is "protected" (in the sense of "covered") by the First Amendment, id. at 327, but that because the DMCA is targeting the "functional" aspect of that speech, id. at 328-29, it is "content neutral," id. at 329,10 and the intermediate scrutiny of United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), applies, Universal I, 111 F.Supp.2d at 329-30. The Court concluded that the DMCA survives this scrutiny, id. at 330-33, and also rejected prior restraint, overbreadth, and vagueness challenges, id. at 333-39.

The Court upheld the constitutionality of the DMCA's application to linking on similar grounds: linking, the Court concluded, is "speech," but the DMCA is content-neutral, targeting only the functional components of that speech. Therefore, its application to linking is also evaluated under O'Brien, and, thus evaluated, survives intermediate scrutiny. However, the Court concluded that a blanket proscription on linking would create a risk of chilling legitimate linking on the web. The Court therefore crafted a restrictive test for linking liability (discussed below) that it believed sufficiently mitigated that risk. The Court then found its test satisfied in this case. Id. at 339-41.

Finally, the Court concluded that an injunction was highly appropriate in this case. The Court observed that DeCSS was harming the Plaintiffs, not only because they were now exposed to the possibility of piracy and therefore were obliged to develop costly new safeguards for DVDs, but also because, even if there was only indirect evidence that DeCSS availability actually facilitated DVD piracy,11 the threat of piracy was very real, particularly as Internet transmission speeds continue to increase. Id. at 314-15, 342. Acknowledging that DeCSS was (and still is) widely available on the Internet, the Court expressed confidence in

The Court's injunction barred the Defendants from: "posting on any Internet web site" DeCSS; "in any other way ... offering to the public, providing, or otherwise trafficking in DeCSS"; violating the anti-trafficking provisions of the DMCA in any other manner, and finally "knowingly linking any Internet web site operated by them to any other web site containing DeCSS, or knowingly maintaining any such link, for the purpose of disseminating DeCSS." Universal II, 111 F.Supp.2d at 346-47.

The Appellants have appealed from the permanent injunction. The United States has intervened in support of the constitutionality of the DMCA. We have also had the benefit of a number of amicus curiae briefs, supporting and opposing the District Court's judgment. After oral argument, we invited the parties to submit responses to a series of specific questions, and we have received helpful responses.

Discussion

I. Narrow Construction to Avoid Constitutional Doubt

The Appellants first argue that, because their constitutional arguments are at least substantial, we should interpret the statute narrowly so as to avoid constitutional problems. They identify three different instances of alleged ambiguity in the statute that they claim provide an opportunity for such a narrow interpretation.

First, they contend that subsection 1201(c)(1), which provides that "[n]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title," can be read to allow the circumvention of encryption technology protecting copyrighted material when the material will be put to "fair uses" exempt from copyright liability.12 We disagree that subsection 1201(c)(1) permits such a reading. Instead, it simply clarifies that the DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred. Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the "fair use" of information just because that information was obtained in a manner made illegal by the DMCA. The Appellants' much more expansive interpretation of subsection 1201(c)(1) is not only outside the range of plausible readings of the provision, but is also clearly refuted by the statute's legislative history.13 See Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (constitutional doubt canon "does not give a court the prerogative to ignore the legislative will").

Second, the Appellants urge a narrow construction of the DMCA because of subsection 1201(c)(4), which provides that "[n]othing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products." This language is clearly precatory: Congress could not "diminish" constitutional rights of free speech even if it wished to, and the fact that Congress also expressed a reluctance to "enlarge" those rights cuts against the Appellants' effort to infer a narrowing construction of the Act from this provision.

Third, the Appellants argue that an individual who buys a DVD has the "authority of the copyright owner" to view the DVD, and therefore is exempted from the DMCA pursuant to subsection 1201(a)(3)(A) when the buyer circumvents an encryption technology in order to view the DVD on a competing platform (such as Linux). The basic flaw in this argument is that it misreads subsection 1201(a)(3)(A). That provision exempts from liability those who would "decrypt" an encrypted DVD with the authority of a copyright owner, not those who would "view" a DVD with the authority of a copyright owner.14 In any event, the Defendants offered no evidence that the Plaintiffs have either explicitly or implicitly authorized DVD buyers to circumvent encryption technology to support use on multiple platforms.15

We conclude that the anti-trafficking and anti-circumvention provisions of the DMCA are not susceptible to the narrow interpretations urged by the Appellants. We therefore proceed to consider the Appellants' constitutional claims.

II. Constitutional Challenge Based on the Copyright Clause

In a footnote to their brief, the Appellants appear to contend that the DMCA, as construed by the District Court, exceeds the constitutional authority of Congress to grant authors copyrights for a "limited time," U.S. Const. art. I, § 8, cl. 8, because it "empower[s] copyright owners to effectively secure perpetual protection by mixing public domain works with copyrighted materials, then locking both up with technological protection measures." Brief for Appellants at 42 n.30. This argument is elaborated in the amici curiae brief filed by Prof. Julie E. Cohen on behalf of herself and 45 other intellectual property law professors. See also David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 712 (2000). For two reasons, the argument provides no basis for disturbing the judgment of the District Court.

First, we have repeatedly ruled that arguments presented to us only in a footnote are not entitled to appellate consideration. Concourse Rehabilitation & Nursing Center Inc. v. DeBuono, 179 F.3d 38, 47 (2d Cir.1999); United States v. Mapp, 170 F.3d 328, 333 n. 8 (2d Cir.1999); United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir.1993). Although an amicus brief can be helpful in elaborating issues properly presented by the parties, it is normally not a method for injecting new issues into an appeal, at least in cases where the parties are competently represented by counsel. See, e.g., Concourse Center, 179 F.3d at 47.

Second, to whatever extent the argument might have merit at some future time in a case with a properly developed record, the argument is entirely premature and speculative at this time on this record. There is not even a claim, much less evidence, that any Plaintiff has sought to prevent copying of public domain works, or that the injunction prevents the Defendants from copying such works. As Judge Kaplan noted, the possibility that encryption would preclude access to public domain works "does not yet appear to be a problem, although it may emerge as one in the future." Universal I, 111 F.Supp.2d at 338 n. 245.

III. Constitutional Challenges Based on the First Amendment

A. Applicable Principles

Last year, in one of our Court's first forays into First Amendment law in the digital age, we took an "evolutionary" approach to the task of tailoring familiar constitutional rules to novel technological circumstances, favoring "narrow" holdings that would permit the law to mature on a "case-by-case" basis. See Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 584 n. 11 (2d Cir.2000). In that spirit, we proceed, with appropriate caution, to consider the Appellants' First Amendment challenges by analyzing a series of preliminary issues the resolution of which provides a basis for adjudicating the specific objections to the DMCA and its application to DeCSS. These issues, which we consider only to the extent necessary to resolve the pending appeal, are whether computer code is speech, whether computer programs are speech, the scope of First Amendment protection for computer code, and the scope of First Amendment protection for decryption code. Based on our analysis of these issues, we then consider the Appellants' challenge to the injunction's provisions concerning posting and linking.

1. Code as Speech

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone chose to write a novel entirely in computer object code by using strings of 1's and 0's for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English. The "object code" version would be incomprehensible to readers outside the programming community (and tedious to read even for most within the community), but it would be no more incomprehensible than a work written in Sanskrit for those unversed in that language. The undisputed evidence reveals that even pure object code can be, and often is, read and understood by experienced programmers. And source code (in any of its various levels of complexity) can be read by many more. See Universal I, 111 F.Supp.2d at 326. Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language. See Junger v. Daley, 209 F.3d 481, 484 (6th Cir.2000).

2. Computer Programs as Speech

Of course, computer code is not likely to be the language in which a work of literature is written. Instead, it is primarily the language for programs executable by a computer. These programs are essentially instructions to a computer. In general, programs may give instructions either to perform a task or series of tasks when initiated by a single (or double) click of a mouse or, once a program is operational ("launched"), to manipulate data that the user enters into the computer.16 Whether computer code that gives a computer instructions is "speech" within the meaning of the First Amendment requires consideration of the scope of the Constitution's protection of speech.

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. "Speech" is an elusive term, and judges and scholars have debated its bounds for two centuries. Some would confine First Amendment protection to political speech. E.g., Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). Others would extend it further to artistic expression. E.g., Marci A. Hamilton, Art Speech, 49 Vand. L. Rev. 73 (1996).

Whatever might be the merits of these and other approaches, the law has not been so limited. Even dry information, devoid of advocacy, political relevance, or artistic expression, has been accorded First Amendment protection. See Miller v. California, 413 U.S. 15, 34, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ("The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value...." (emphasis added)); Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (First Amendment embraces "[a]ll ideas having even the slightest redeeming social importance," including the "`advancement of truth, science, morality, and arts in general.'" (quoting 1 Journals of the Continental Congress 108 (1774))); Board of Trustees of Leland Stanford University v. Sullivan, 773 F.Supp. 472, 474 (D.D.C.1991) ("It is ... settled ... that the First Amendment protects scientific expression and debate just as it protects political and artistic expression."); see also Kent Greenawalt, Speech, Crime and the Uses of Language 85 (1989) ("[A]ssertions of fact generally fall within a principle of freedom of speech...."); cf. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ("prescription drug price information" is "speech" because a consumer's interest in "the free flow of commercial information" may be "keener by far" than "his interest in the day's most urgent political debate").

Thus, for example, courts have subjected to First Amendment scrutiny restrictions on the dissemination of technical scientific information, United States v. Progressive, Inc., 467 F.Supp. 990 (W.D.Wis.1979), and scientific research, Stanford University, 773 F.Supp. at 473, and attempts to regulate the publication of instructions,17 see, e.g., United States v. Raymond, 228 F.3d 804, 815 (7th Cir.2000) (First Amendment does not protect instructions for violating the tax laws); United States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir.1983) (same); Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1020-25 (5th Cir.1987) (First Amendment protects instructions for engaging in a dangerous sex act); United States v. Featherston, 461 F.2d 1119, 1122-23 (5th Cir.1972) (First Amendment does not protect instructions for building an explosive device); see also Bernstein v. United States Department of State, 922 F.Supp. 1426, 1435 (N.D.Cal.1996) ("Instructions, do-it-yourself manuals, [and] recipes" are all "speech").18

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer. A recipe is no less "speech" because it calls for the use of an oven, and a musical score is no less "speech" because it specifies performance on an electric guitar. Arguably distinguishing computer programs from conventional language instructions is the fact that programs are executable on a computer. But the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions "speech" for purposes of the First Amendment.19 The information conveyed by most "instructions" is how to perform a task.

Instructions such as computer code, which are intended to be executable by a computer, will often convey information capable of comprehension and assessment by a human being.20 A programmer reading a program learns information about instructing a computer, and might use this information to improve personal programming skills and perhaps the craft of programming. Moreover, programmers communicating ideas to one another almost inevitably communicate in code, much as musicians use notes.21 Limiting First Amendment protection of programmers to descriptions of computer code (but not the code itself) would impede discourse among computer scholars,22 just as limiting protection for musicians to descriptions of musical scores (but not sequences of notes) would impede their exchange of ideas and expression. Instructions that communicate information comprehensible to a human qualify as speech whether the instructions are designed for execution by a computer or a human (or both).

Vartuli is not to the contrary. The defendants in Vartuli marketed a software program called "Recurrence," which would tell computer users when to buy or sell currency futures contracts if their computers were fed currency market rates. The Commodity Futures Trading Commission charged the defendants with violating federal law for, among other things, failing to register as commodity trading advisors for their distribution of the Recurrence software. The defendants maintained that Recurrence's cues to users to buy or sell were protected speech, and that the registration requirement as applied to Recurrence was a constitutionally suspect prior restraint. We rejected the defendants' constitutional claim, holding that Recurrence "in the form it was sold and marketed by the defendants" did not generate speech protected by the First Amendment. Vartuli, 228 F.3d at 111.

Essential to our ruling in Vartuli was the manner in which the defendants marketed the software and intended that it be used: the defendants told users of the software to follow the software's cues "with no second-guessing," id., and intended that users follow Recurrence's commands "mechanically" and "without the intercession of the mind or the will of the recipient," id. We held that the values served by the First Amendment were not advanced by these instructions, even though the instructions were expressed in words. Id. We acknowledged that some users would, despite the defendants' marketing, refuse to follow Recurrence's cues mechanically but instead would use the commands as a source of information and advice, and that, as to these users, Recurrence's cues might very "well have been `speech.'" Id. at 111-12. Nevertheless, we concluded that the Government could require registration for Recurrence's intended use because such use was devoid of any constitutionally protected speech. Id. at 112.

Vartuli considered two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected).23 However, this does not mean that Vartuli denied First Amendment protection to all computer programs. Since Vartuli limited its constitutional scrutiny to the code "as marketed," i.e., as an automatic trading system, it did not have occasion to consider a third manner in which a programmer might communicate through code: to another programmer.

For all of these reasons, we join the other courts that have concluded that computer code, and computer programs constructed from code can merit First Amendment protection, see Junger, 209 F.3d at 484;24 Bernstein, 922 F.Supp. at 1434-36; see also Bernstein, 176 F.3d at 1140-41; Karn v. United States Department of State, 925 F.Supp. 1, 9-10 (D.D.C. 1996) (assuming, without deciding, that source code with English comments interspersed throughout is "speech"), although the scope of such protection remains to be determined.

3. The Scope of First Amendment Protection for Computer Code

Having concluded that computer code conveying information is "speech" within the meaning of the First Amendment, we next consider, to a limited extent, the scope of the protection that code enjoys. As the District Court recognized, Universal I, 111 F.Supp.2d at 327, the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech. Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires ... that the means chosen do not `burden substantially more speech than is necessary to further the government's legitimate interests.'" Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).25

"[G]overnment regulation of expressive activity is `content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 720, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). "The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791, 109 S.Ct. 2746. The Supreme Court's approach to determining content-neutrality appears to be applicable whether what is regulated is expression, see id. at 791-93, 109 S.Ct. 2746 (regulation of volume of music), conduct, see O'Brien, 391 U.S. at 377, 88 S.Ct. 1673, or any "activity" that can be said to combine speech and non-speech elements, see Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (applying O'Brien to "activity" of displaying American flag hung upside down and decorated with a peace symbol).

To determine whether regulation of computer code is content-neutral, the initial inquiry must be whether the regulated activity is "sufficiently imbued with elements of communication to fall within the scope of the First ... Amendment[]." Id. at 409, 94 S.Ct. 2727; see also Name. Space, 202 F.3d at 585. Computer code, as we have noted, often conveys information comprehensible to human beings, even as it also directs a computer to perform various functions. Once a speech component is identified, the inquiry then proceeds to whether the regulation is "justified without reference to the content of regulated speech." Hill, 530 U.S. at 720, 120 S.Ct. 2480.

The Appellants vigorously reject the idea that computer code can be regulated according to any different standard than that applicable to pure speech, i.e., speech that lacks a nonspeech component. Although recognizing that code is a series of instructions to a computer, they argue that code is no different, for First Amendment purposes, than blueprints that instruct an engineer or recipes that instruct a cook. See Supplemental Brief for Appellants at 2, 3.26 We disagree. Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet. The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse. These realities of what code is and what its normal functions are require a First Amendment analysis that treats code as combining nonspeech and speech elements, i.e., functional and expressive elements. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) ("[D]ifferences in the characteristics of new media justify differences in the First Amendment standards applied to them." (footnote omitted)).

We recognize, as did Judge Kaplan, that the functional capability of computer code cannot yield a result until a human being decides to insert the disk containing the code into a computer and causes it to perform its function (or programs a computer to cause the code to perform its function). Nevertheless, this momentary intercession of human action does not diminish the nonspeech component of code, nor render code entirely speech, like a blueprint or a recipe. Judge Kaplan, in a passage that merits extensive quotation, cogently explained why this is especially so with respect to decryption code:

. . . . .

Universal I, 111 F.Supp.2d at 331-32 (footnotes omitted). The functionality of computer code properly affects the scope of its First Amendment protection.

4. The Scope of First Amendment Protection for Decryption Code

In considering the scope of First Amendment protection for a decryption program like DeCSS, we must recognize that the essential purpose of encryption code is to prevent unauthorized access. Owners of all property rights are entitled to prohibit access to their property by unauthorized persons. Homeowners can install locks on the doors of their houses. Custodians of valuables can place them in safes. Stores can attach to products security devices that will activate alarms if the products are taken away without purchase. These and similar security devices can be circumvented. Burglars can use skeleton keys to open door locks. Thieves can obtain the combinations to safes. Product security devices can be neutralized.

Our case concerns a security device, CSS computer code, that prevents access by unauthorized persons to DVD movies. The CSS code is embedded in the DVD movie. Access to the movie cannot be obtained unless a person has a device, a licensed DVD player, equipped with computer code capable of decrypting the CSS encryption code. In its basic function, CSS is like a lock on a homeowner's door, a combination of a safe, or a security device attached to a store's products.

DeCSS is computer code that can decrypt CSS. In its basic function, it is like a skeleton key that can open a locked door, a combination that can open a safe, or a device that can neutralize the security device attached to a store's products.27 DeCSS enables anyone to gain access to a DVD movie without using a DVD player.

The initial use of DeCSS to gain access to a DVD movie creates no loss to movie producers because the initial user must purchase the DVD. However, once the DVD is purchased, DeCSS enables the initial user to copy the movie in digital form and transmit it instantly in virtually limitless quantity, thereby depriving the movie producer of sales. The advent of the Internet creates the potential for instantaneous worldwide distribution of the copied material.

At first glance, one might think that Congress has as much authority to regulate the distribution of computer code to decrypt DVD movies as it has to regulate distribution of skeleton keys, combinations to safes, or devices to neutralize store product security devices. However, despite the evident legitimacy of protection against unauthorized access to DVD movies, just like any other property, regulation of decryption code like DeCSS is challenged in this case because DeCSS differs from a skeleton key in one important respect: it not only is capable of performing the function of unlocking the encrypted DVD movie, it also is a form of communication, albeit written in a language not understood by the general public. As a communication, the DeCSS code has a claim to being "speech," and as "speech," it has a claim to being protected by the First Amendment. But just as the realities of what any computer code can accomplish must inform the scope of its constitutional protection, so the capacity of a decryption program like DeCSS to accomplish unauthorized — indeed, unlawful — access to materials in which the Plaintiffs have intellectual property rights must inform and limit the scope of its First Amendment protection. Cf. Red Lion, 395 U.S. at 386, 89 S.Ct. 1794 ("[D]ifferences in the characteristics of new media justify differences in the First Amendment standards applied to them.").

With all of the foregoing considerations in mind, we next consider the Appellants' First Amendment challenge to the DMCA as applied in the specific prohibitions that have been imposed by the District Court's injunction.

B. First Amendment Challenge

The District Court's injunction applies the DMCA to the Defendants by imposing two types of prohibition, both grounded on the anti-trafficking provisions of the DMCA. The first prohibits posting DeCSS or any other technology for circumventing CSS on any Internet web site. Universal II, 111 F.Supp.2d at 346-47, ¶ 1(a), (b). The second prohibits knowingly linking any Internet web site to any other web site containing DeCSS. Id. at 347, ¶ 1(c). The validity of the posting and linking prohibitions must be considered separately.

1. Posting

The initial issue is whether the posting prohibition is content-neutral, since, as we have explained, this classification determines the applicable constitutional standard. The Appellants contend that the anti-trafficking provisions of the DMCA and their application by means of the posting prohibition of the injunction are content-based. They argue that the provisions "specifically target ... scientific expression based on the particular topic addressed by that expression — namely, techniques for circumventing CSS." Supplemental Brief for Appellants at 1. We disagree. The Appellants' argument fails to recognize that the target of the posting provisions of the injunction — DeCSS — has both a nonspeech and a speech component, and that the DMCA, as applied to the Appellants, and the posting prohibition of the injunction target only the nonspeech component. Neither the DMCA nor the posting prohibition is concerned with whatever capacity DeCSS might have for conveying information to a human being, and that capacity, as previously explained, is what arguably creates a speech component of the decryption code. The DMCA and the posting prohibition are applied to DeCSS solely because of its capacity to instruct a computer to decrypt CSS. That functional capability is not speech within the meaning of the First Amendment. The Government seeks to "justif[y]," Hill, 530 U.S. at 720, 120 S.Ct. 2480, both the application of the DMCA and the posting prohibition to the Appellants solely on the basis of the functional capability of DeCSS to instruct a computer to decrypt CSS, i.e., "without reference to the content of the regulated speech," id. This type of regulation is therefore content-neutral, just as would be a restriction on trafficking in skeleton keys identified because of their capacity to unlock jail cells, even though some of the keys happened to bear a slogan or other legend that qualified as a speech component.

As a content-neutral regulation with an incidental effect on a speech component, the regulation must serve a substantial governmental interest, the interest must be unrelated to the suppression of free expression, and the incidental restriction on speech must not burden substantially more speech than is necessary to further that interest. Turner Broadcasting, 512 U.S. at 662, 114 S.Ct. 2445. The Government's interest in preventing unauthorized access to encrypted copyrighted material is unquestionably substantial, and the regulation of DeCSS by the posting prohibition plainly serves that interest. Moreover, that interest is unrelated to the suppression of free expression. The injunction regulates the posting of DeCSS, regardless of whether DeCSS code contains any information comprehensible by human beings that would qualify as speech. Whether the incidental regulation on speech burdens substantially more speech than is necessary to further the interest in preventing unauthorized access to copyrighted materials requires some elaboration.

Posting DeCSS on the Appellants' web site makes it instantly available at the click of a mouse to any person in the world with access to the Internet, and such person can then instantly transmit DeCSS to anyone else with Internet access. Although the prohibition on posting prevents the Appellants from conveying to others the speech component of DeCSS, the Appellants have not suggested, much less shown, any technique for barring them from making this instantaneous worldwide distribution of a decryption code that makes a lesser restriction on the code's speech component.28 It is true that the Government has alternative means of prohibiting unauthorized access to copyrighted materials. For example, it can create criminal and civil liability for those who gain unauthorized access, and thus it can be argued that the restriction on posting DeCSS is not absolutely necessary to preventing unauthorized access to copyrighted materials. But a content-neutral regulation need not employ the least restrictive means of accomplishing the governmental objective. Id. It need only avoid burdening "substantially more speech than is necessary to further the government's legitimate interests." Id. (internal quotation marks and citation omitted). The prohibition on the Defendants' posting of DeCSS satisfies that standard.29

2. Linking

In considering linking, we need to clarify the sense in which the injunction prohibits such activity. Although the injunction defines several terms, it does not define "linking." Nevertheless, it is evident from the District Court's opinion that it is concerned with "hyperlinks," Universal I, 111 F.Supp.2d at 307; see id. at 339.30 A hyperlink is a cross-reference (in a distinctive font or color) appearing on one web page that, when activated by the point-and-click of a mouse, brings onto the computer screen another web page. The hyperlink can appear on a screen (window) as text, such as the Internet address ("URL") of the web page being called up or a word or phrase that identifies the web page to be called up, for example, "DeCSS web site." Or the hyperlink can appear as an image, for example, an icon depicting a person sitting at a computer watching a DVD movie and text stating "click here to access DeCSS and see DVD movies for free!" The code for the web page containing the hyperlink includes a computer instruction that associates the link with the URL of the web page to be accessed, such that clicking on the hyperlink instructs the computer to enter the URL of the desired web page and thereby access that page. With a hyperlink on a web page, the linked web site is just one click away.31

In applying the DMCA to linking (via hyperlinks), Judge Kaplan recognized, as he had with DeCSS code, that a hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen (or, as Judge Kaplan put it, to "take one almost instantaneously to the desired destination." Id.). As he had ruled with respect to DeCSS code, he ruled that application of the DMCA to the Defendants' linking to web sites containing DeCSS is content-neutral because it is justified without regard to the speech component of the hyperlink. Id. The linking prohibition applies whether or not the hyperlink contains any information, comprehensible to a human being, as to the Internet address of the web page being accessed. The linking prohibition is justified solely by the functional capability of the hyperlink.

Applying the O'Brien/Ward/Turner Broadcasting requirements for content-neutral regulation, Judge Kaplan then ruled that the DMCA, as applied to the Defendants' linking, served substantial governmental interests and was unrelated to the suppression of free expression. Id. We agree. He then carefully considered the "closer call," id., as to whether a linking prohibition would satisfy the narrow tailoring requirement. In an especially carefully considered portion of his opinion, he observed that strict liability for linking to web sites containing DeCSS would risk two impairments of free expression. Web site operators would be inhibited from displaying links to various web pages for fear that a linked page might contain DeCSS, and a prohibition on linking to a web site containing DeCSS would curtail access to whatever other information was contained at the accessed site. Id. at 340.

To avoid applying the DMCA in a manner that would "burden substantially more speech than is necessary to further the government's legitimate interests," Turner Broadcasting, 512 U.S. at 662, 114 S.Ct. 2445 (internal quotation marks and citation omitted), Judge Kaplan adapted the standards of New York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to fashion a limited prohibition against linking to web sites containing DeCSS. He required clear and convincing evidence

Universal I, 111 F.Supp.2d at 341. He then found that the evidence satisfied his three-part test by his required standard of proof. Id.

In response to our post-argument request for the parties' views on various issues, including specifically Judge Kaplan's test for a linking prohibition, the Appellants replied that his test was deficient for not requiring proof of intent to cause, or aid or abet, harm, and that the only valid test for a linking prohibition would be one that could validly apply to the publication in a print medium of an address for obtaining prohibited material. Supplemental Brief for Appellants at 14. The Appellees and the Government accepted Judge Kaplan's criteria for purposes of asserting the validity of the injunction as applied to the Appellants, with the Government expressing reservations as to the standard of clear and convincing evidence. Supplemental Brief for Appellees at 22-23; Supplemental Brief for Government at 19-21.

Mindful of the cautious approach to First Amendment claims involving computer technology expressed in Name.Space, 202 F.3d at 584 n. 11, we see no need on this appeal to determine whether a test as rigorous as Judge Kaplan's is required to respond to First Amendment objections to the linking provision of the injunction that he issued. It suffices to reject the Appellants' contention that an intent to cause harm is required and that linking can be enjoined only under circumstances applicable to a print medium. As they have throughout their arguments, the Appellants ignore the reality of the functional capacity of decryption computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted materials by anyone anywhere in the world. Under the circumstances amply shown by the record, the injunction's linking prohibition validly regulates the Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs.32

At oral argument, we asked the Government whether its undoubted power to punish the distribution of obscene materials would permit an injunction prohibiting a newspaper from printing addresses of bookstore locations carrying such materials. In a properly cautious response, the Government stated that the answer would depend on the circumstances of the publication. The Appellants' supplemental papers enthusiastically embraced the arguable analogy between printing bookstore addresses and displaying on a web page links to web sites at which DeCSS may be accessed. Supplemental Brief for Appellants at 14. They confidently asserted that publication of bookstore locations carrying obscene material cannot be enjoined consistent with the First Amendment, and that a prohibition against linking to web sites containing DeCSS is similarly invalid. Id.

Like many analogies posited to illuminate legal issues, the bookstore analogy is helpful primarily in identifying characteristics that distinguish it from the context of the pending dispute. If a bookstore proprietor is knowingly selling obscene materials, the evil of distributing such materials can be prevented by injunctive relief against the unlawful distribution (and similar distribution by others can be deterred by punishment of the distributor). And if others publish the location of the bookstore, preventive relief against a distributor can be effective before any significant distribution of the prohibited materials has occurred. The digital world, however, creates a very different problem. If obscene materials are posted on one web site and other sites post hyperlinks to the first site, the materials are available for instantaneous worldwide distribution before any preventive measures can be effectively taken.

This reality obliges courts considering First Amendment claims in the context of the pending case to choose between two unattractive alternatives: either tolerate some impairment of communication in order to permit Congress to prohibit decryption that may lawfully be prevented, or tolerate some decryption in order to avoid some impairment of communication. Although the parties dispute the extent of impairment of communication if the injunction is upheld and the extent of decryption if it is vacated, and differ on the availability and effectiveness of techniques for minimizing both consequences, the fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided.

In facing this choice, we are mindful that it is not for us to resolve the issues of public policy implicated by the choice we have identified. Those issues are for Congress. Our task is to determine whether the legislative solution adopted by Congress, as applied to the Appellants by the District Court's injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.

IV. Constitutional Challenge Based on Claimed Restriction of Fair Use

Asserting that fair use "is rooted in and required by both the Copyright Clause and the First Amendment," Brief for Appellants at 42, the Appellants contend that the DMCA, as applied by the District Court, unconstitutionally "eliminates fair use" of copyrighted materials, id. at 41 (emphasis added). We reject this extravagant claim.

Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement. In Stewart v. Abend, 495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990), cited by the Appellants, the Court merely noted that fair use "`permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster,'" id. (quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980)); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (noting "the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use"). In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), the Court observed, "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, `[t]o promote the Progress of Science and useful Arts....'"33 Id. at 575, 114 S.Ct. 1164 (citation omitted); see generally William F. Patry, The Fair Use Privilege in Copyright Law 573-82 (2d ed. 1995) (questioning First Amendment protection for fair use).

We need not explore the extent to which fair use might have constitutional protection, grounded on either the First Amendment or the Copyright Clause, because whatever validity a constitutional claim might have as to an application of the DMCA that impairs fair use of copyrighted materials, such matters are far beyond the scope of this lawsuit for several reasons. In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.

Second, as the District Court properly noted, to whatever extent the anti-trafficking provisions of the DMCA might prevent others from copying portions of DVD movies in order to make fair use of them, "the evidence as to the impact of the anti-trafficking provision[s] of the DMCA on prospective fair users is scanty and fails adequately to address the issues." Universal I, 111 F.Supp.2d at 338 n. 246.

Third, the Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format.34 Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions. One example is that of a school child who wishes to copy images from a DVD movie to insert into the student's documentary film. We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,35 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.

Conclusion

We have considered all the other arguments of the Appellants and conclude that they provide no basis for disturbing the District Court's judgment. Accordingly, the judgment is affirmed.