Conversion to HTML by Cryptome.

6 April 2000

See related files: http://jya.com/cryptout.htm#DVD-DeCSS


Contents

1. Notice of Motion to Modify the January 20, 2000 Order of Preliminary Injunction and for Leave to Amend the Complaint

2. Supplemental Declaration of Robert W. Schumann in Support of Plaintiffs' Motion to Modify the Janaury 20, 2000 Order of Preliminary Injunction and for Leave to Amend the Complaint

3. Declaration of Bruce E. Boydne, Esq. in Support of Plaintiffs' Motion to Modify the January 20, 2000 Order of Preliminary Injunction and for Leave to Amend the Complaint

4. Memorandum of Law in Support of Plaintiffs' Motion to Modify the January 20, 2000 Order of Preliminary Injunction

5. Second Amended Complaint for Violation of Provisions Governing Circumvention of Copyright Protection Systems, 17 U.S.C. § 1201, et seq.

Note: Exhibits cited not converted to HTML. See PDF file: Exhibits A - V (4.2MB, 73 pages)


Source: http://www.2600.com/news/2000/0406-motions/motnotice.pdf (874K)

[4 pages]

SERVICE COPY

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (pro hac vice admission to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS INC.;
TRISTAR PICTURES, INC.; COLUMBIA
PICTURES INDUSTRIES, INC.; TIME WARNER
ENTERTAINMENT CO., L.P.; DISNEY
ENTERPRISES, INC.; AND TWENTIETH
CENTURY FOX FILM CORPORATION,

Plaintiffs,

v.

SHAWN C. REIMERDES; ERIC CORLEY A/K/A
"EMMANUEL GOLDSTEIN"; AND ROMAN
KAZAN,

Defendants.

___________________________________________

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00 Civ. 0277 (LAK)(RLE)



NOTICE OF MOTION TO
MODIFY THE JANUARY 20, 2000
ORDER OF PRELIMINARY
INJUNCTION AND FOR LEAVE
TO AMEND THE COMPLAINT


PLEASE TAKE NOTICE that upon the annexed Supplemental Declaration of Robert W. Schumann, dated April 3, 2000, the Supplemental Declaration of Bruce E. Boyden, Esq., dated April 3, 2000, and the accompanying Memorandum of Law In Support of Plaintiffs' Motion to Modify the January 20, 2000 Order of Preliminary Injunction and for Leave to Amend the Complaint, and upon all prior pleadings and proceedings herein, the undersigned will move this Court, in Courtroom _ before the Honorable Lewis A. Kaplan, United States District Court Judge for the SoutheRN District of New York, in the Courthouse located at 500 Pearl Street, New York, New York, 10007, on a date and time to be set by the Court:

1. For an Order, pursuant to Rule 65 of the Federal Rules of Civil Procedure, modifying this Court's preliminary injunction Order, dated January 20, 2000, by adding the following to the indicated paragraphs of said order:

a) add to paragraph 2 the name of additional defendant 2600 Enterprises, Inc., and delete the names of defendants Shawn C. Reimerdes and Roman Kazan,

b) add to paragraphs 2(a) and 2(b), after the words "posting on," the language "or linking to," and insert commas after the words "trafficking in,"

c) revise paragraph 3(b) to read "'CSS' means the Contents Scramble System used to encrypt, scramble or otherwise protect the contents of certain DVDs from unauthorized access or copying,"

d) revise paragraph 3(c) to read " 'DeCSS' means any computer program, file or device that may be used to decrypt or unscramble the contents of DVDs that are protected, or otherwise to circumvent the protection afforded, by CSS and that permits the unauthorized access or copying of the contents or any portion thereof,"

e) add (d) to paragraph 3 as follows: "a 'hyperlink' means software instructions which, when executed, cause a signal to be sent to another location where data or material can be retrieved for viewing, copying or further transmission,"

f) add (e) to paragraph 3 as follows: " 'linking' means provision by the defendants, at their respective websites, of hyperlinks to other websites which are offering to the public, providing, providing hyperlinks to, or otherwise trafficking in DeCSS or any technology, product, service, device, component, or part thereof described in paragraph 2(b),"

(see Proposed Modified Order of Preliminary Injunction, attached hereto as Exhibit A [not provided by 2600]);

2. For an Order, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, granting plaintiffs leave to amend the complaint to add 2600 Enterprises, Inc., to delete references to defendants who have settled, to conform the prayer for relief to the proposed modifications to the injunction, and to make other, minor conforming changes (see Proposed Second Amended Complaint, attached hereto as Exhibit B); and

3. For such other and further equitable relief as this Court deems just and proper.

PLEASE TAKE FURTHER NOTICE that, pursuant to the individual rules of this Court, opposing affidavits and answering memoranda of law shall be served within two (2) weeks of this date.

DATED: New York, New York
               April 4, 2000



   
                                                  PROSKAUER ROSE LLP

By: [Signed]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

- and -

Jon A. Baumgarten (pro hac vice admission
to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs


Source: http://www.2600.com/news/2000/0406-motions/suppaffsb.pdf (938K)

[7 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (pro hac vice admission to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS INC.;
TRISTAR PICTURES, INC.; COLUMBIA
PICTURES INDUSTRIES, INC.; TIME WARNER
ENTERTAINMENT CO., L.P.; DISNEY
ENTERPRISES, INC.; AND TWENTIETH
CENTURY FOX FILM CORPORATION,

Plaintiffs,

v.

SHAWN C. REIMERDES; ERIC CORLEY A/K/A
"EMMANUEL GOLDSTEIN"; AND ROMAN
KAZAN,

Defendants.

___________________________________________

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00 Civ. 0277 (LAK)(RLE)



SUPPLEMENTAL DECLARATION
OF ROBERT W. SCHUMANN IN
SUPPORT OF PLAINTIFFS'
MOTION TO MODIFY THE
JANUARY 20, 2000 ORDER OF
PRELIMINARY INJUNCTION
AND FOR LEAVE TO AMEND
THE COMPLAINT


Supplemental Declaration of Robert W. Schumann

I declare, under penalty of perjury, as follows:

1 . I am the President and Chief Executive Officer of Cinea, LLC, a digital content security firm. This Declaration supplements my January 19, 2000 Declaration before the Court and is submitted in support of plaintiffs' motion to modify the preliminary injunction issued in this case on January 20, 2000 and for leave to amend the complaint. In this Declaration, I focus particularly on the issue of "linking" on the Internet, including:

a. The technical aspects of "hyperlinks" on the Internet, generally; and

b. The particular hyperlinks present on the web site of 2600.com.

I make this Declaration based upon my own personal knowledge, including my review of the 2600.com web site, the sites to which it is now linking containing DeCSS, certain standard works on software and Internet-related technologies, as well as other documents and things referred to in this Supplemental Declaration. I could and would competently testify to the matters set forth below should I be called as a witness before this Court.

2. A hyperlink, in the context of the Internet, generally refers to software instructions which, when executed, cause a signal to be sent to another location where data or material can be retrieved for viewing, copying or further transmission. Historically, many of the concepts used in the Internet today, especially linking, came from many years of research and development into fields known as HyperText and HyperMedia. These fields describe the building of formal and informal networks of linked information through which a user can navigate (browse) to find and retrieve information, media and other elements. Vannevar Bush first referenced the concept in 1945 and the first crude implementations were created in the late 1960's and 70's. A significant precursor to the modern HyperMedia systems came from Apple Computer with the introduction of its HyperCard help system in 1987. HTML, which stands for Hyper-Text Markup Language, itself was first introduced in 1990. HTML is an interpreted computer language which describes the contents, layout, and actions associated with a "page" of information. The software programs used to execute the HTML, display the results, and implement the user interaction are commonly known as "browsers." Hyperlinks are a key element of HTML and are the instructions which cause the browser to locate and retrieve the "linked-to" item. Thus, "linking" is shorthand for the hyperlink, and describes the process of tying together Web pages, or other elements, such that a user can easily locate and retrieve specific information from a second location described or contained within the first location (or page). I have attached as Exhibits U and V respectively true and correct copies of relevant pages of the works [sic] Elizabeth Castro, HTML FOR THE WORLD WIDE WEB, at I l 7, and Kiersten Conner-Sax & Ed Krol, THE WHOLE INTERNET: THE NEXT GENERATION, at 302, both of which provide more in-depth descriptions of linking as used in today's modern Internet and the world wide web in particular.

3. As use of the Internet has expanded, the use of hyperlinks has grown considerably. They enable a user to quickly locate and retrieve data from another file or web site location without having to search and/or manually input a particular file or site location. Thus, for example, a lengthy text document may include links to material located elsewhere within the same document, in a related file, or in another Internet web site. By making that material readily available through the use of a hyperlink, much time and effort is saved by the user. All the user need do is "click" on the word, text, icon or other "signifier" and the user's browser software will execute the embedded instructions to locate and retrieve the "linked to" material without further input or keystrokes by the user. Using hyperlinks is also advantageous because, unlike having to rely on a "search engine" to seek out and locate relevant material on the Internet using key words, the hyperlink is essentially a "hard-wired" path with specific instructions directly to the desired material. This saves considerable user and computational time.

4. Many hyperlinks to other sites are often targeted to the specific place within the "linked to" site where the desired content appears. As discussed below, based upon my analysis of the hyperlinks contained on 2600.com, a considerable number of them go directly to the location on the "linked to" site where DeCSS appears.

5. Given the utility of hyperlinks to quickly retrieve information or material at other locations, it is now common for commercially available software, such as Microsoft Word and Microsoft Frontpage to automatically create hyperlinks in certain instances. For example, using the Frontpage software, if one types in a particular web site address in the customary URL format (e.g., www.2600.com), the software will automatically convert that "plaintext" reference into a hyperlink. While it is true that anyone wishing to refer to the places on the Internet where DeCSS appears may, by typing in the URL information described above, inadvertently create a hyperlink to that Internet location, that is not what is occurring at the 2600.com web site, for the reasons described below.

6. I have reviewed the 2600.com web site and, in particular, its contents insofar as DeCSS is concerned. At the time of my earlier Declaration in this case, the list of hyperlinks on the 2600.com site to DeCSS were contained within the interior of that site in connection with an article dated November 12, 1999 and required the user to take multiple steps before arriving at the list of 2600 hyperlinks. At that time, one selected "News Archive" from the 2600.com home page (www.2600.com), then clicked on "November" under the 1999 archive section and clicked "select." This brought up an entry list of articles. After clicking on "11.12.19 DVD Encryption Cracked," a page was displayed containing an article. At the end of the article was a list of hyperlinks to web sites containing DeCSS. In addition, 2600 was, at that time. also posting DeCSS to its own web site by means of an "interior" hyperlink between two locations on its own site. At that time, in order to access and download DeCSS from the 2600.com site, one navigated first to the article referenced above on the web site and then clicked on the highlighted DeCSS hyperlink. (See Declaration of Bruce E. Boyden, Esq., in Support of Plaintiffs' Application for a Preliminary Injunction, dated January 13, 2000 ("Boyden Moving Decl.") Ex. 7.)

7. Since the January 20, 2000 injunction, the 2600.com web site has been reformatted. Now, there is text on the opening page of the 2600.com site which reads "Help us fight the MPAA by leafletting and mirroring DeCSS." (Ex. F.) By clicking on the highlighted word "mirroring," one is linked immediately to another part of the site where the list of hyperlinks to other DeCSS locations appears. (Ex. B.) By clicking on any of the hyperlinks in this list, the user is then given direct access to DeCSS in one or another of the following ways:

a. Some of these hyperlinks are set up so that, as soon as the user clicks on the 2600 link, the file containing DeCSS is immediately presented to the user's computer, which usually presents a "save-as" screen requesting the user to confirm the location to which to download the DeCSS file. Examples of this type of hyperlink can be found on the 2600.com site as follows: http://chimera.ae.krakow.pl/~grajewsp/DeCSS.zip, http://logical-solutions.com.au/DeCSS.zip, and http://www.darkkingz.com/DeCSS.zip. See, e.g., Ex. G.

b. In a considerable number of other cases, by clicking on the DeCSS hyperlink appearing on the 2600.com site, the user is presented with the specific page or directory listing from another web site where a DeCSS hyperlink appears. When the user clicks on that hyperlink, DeCSS is immediately presented to the user's computer for downloading, as described in Paragraph 7(a) above. Examples of this are: http://altern.org/tekrebel, http://artun.ee/~rommi/css, and http://www.geocities.com/cold_dvd. See, e.g., Exs. H, P.

c. There are also hyperlinks on the 2600 site where DeCSS may appear on the first page of that web site or may require the user to locate the presence of DeCSS beyond the first presented page. Examples of this are: http://personalweb.smcvt.edu/wtaylor/decss.html, http://users.1st.net/roundhere/decss, and http://home.cyberarmy.com/enac/dvdencrypt.html. See, e.g., Exs. I, N, O. Q.

d. Finally, some of the hyperlinks on the 2600 site, when clicked on, present the user with another web site location which itself contains hyperlinks that, when clicked on transport the user to yet another site or page that presents the user with the downloadable DeCSS utility. This "cascading link" approach is exemplified by http://briefcase.yahoo.com/clcktwr, http://dvdcopy.cjb.net, http://the.wiretapped.net/wt/dvd, and http://isupport2600.8m.com. See, e.g., Exs. J-M. In almost all cases, the link on the 2600 site retrieves that portion of the web page at the "linked to" sites where the further DeCSS link appears.

8. Although, as stated above, certain computer software makes it possible to create hyperlinks inadvertently, my analysis of the 2600.com site reveals that this is not what is being done here. First, it is obvious, based upon a review of the statements and other text on the 2600.com site, that the appearance of these hyperlinks is no inadvertent act but, instead, part of a deliberate effort to proliferate DeCSS as widely as possible. By clicking on the highlighted word "mirroring" at the 2600.com home page, the user is presented with a page within the 2600.com site which encourages people to "mirror" or copy the DeCSS files and put them up on the Internet through other web sites. That page also requests that 2600 "followers" copy and post DeCSS to the Internet as part of an effort to continue proliferating DeCSS; it also requests that they provide 2600 with the web site locations of these DeCSS postings to enable the 2600 site to "get new links constantly" and "continue to update the links as long as we're able to." 2600 even goes so far as to provide a custom set of data entry fields specifically for providing the "URL" addresses of these mirrored sites. See Ex. B.

9. Because a considerable number of the 2600 hyperlinks take the user directly to DeCSS, see ¶ 7 above, it is also apparent that the overwhelming majority of these hyperlinks are designed to furnish the DeCSS utility with minimal user effort (other than to confirm an instruction to download DeCSS). It is thus plain that the hyperlinks created by 2600 and the URL information furnished by the "linked to" site are part and parcel of a deliberate effort to deliver DeCSS.

10. If the hyperlinks to DeCSS on the 2600.com site are disabled or removed, that will not, in and of itself, cause any of the postings of DeCSS on the "linked to" web sites to disappear. Instead, by removing or disabling the defendants' hyperlinks, the delivery of DeCSS will not be nearly as easy as it is now because these sites are effectively functioning as a distribution center for the ready availability and delivery of DeCSS with a few clicks of a button.

Dated: April 3, 2000



   
                                                  By: [Signed]

Robert W. Schumann




5159/53185-005 NYLIB/1154477 v5


Source: http://www.2600.com/news/2000/0406-motions/suppaffsb.pdf (938K)

[6 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (pro hac vice admission to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS INC.;
TRISTAR PICTURES, INC.; COLUMBIA
PICTURES INDUSTRIES, INC.; TIME WARNER
ENTERTAINMENT CO., L.P.; DISNEY
ENTERPRISES, INC.; AND TWENTIETH
CENTURY FOX FILM CORPORATION,

Plaintiffs,

v.

SHAWN C. REIMERDES; ERIC CORLEY A/K/A
"EMMANUEL GOLDSTEIN"; AND ROMAN
KAZAN,

Defendants.

___________________________________________

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00 Civ. 0277 (LAK)(RLE)



DECLARATION OF BRUCE E.
BOYDEN, ESQ. IN SUPPORT OF PLAINTIFFS' MOTION TO
MODIFY THE JANUARY 20, 2000
ORDER OF PRELIMINARY
INJUNCTION AND FOR LEAVE
TO AMEND THE COMPLAINT


BRUCE E. BOYDEN, being an attorney duly admitted to practice before this Court, hereby declares as follows under penalty of perjury:

1. I am an attorney associated with Proskauer Rose LLP, attorneys for plaintiffs Universal City Studios, Inc.; Paramount Pictures Corporation; Metro-Goldwyn-Mayer, Inc.; TriStar Pictures, Inc.; Columbia Pictures Industries, Inc.; Time Warner Entertainment Co., L.P.; Disney Enterprises, Inc.; and Twentieth Century Fox Film Corporation (collectively "Plaintiffs"), in the above-captioned matter. I submit this declaration in support of Plaintiffs' motion to modify the preliminary injunction and for leave to amend the complaint.

2.  Since the filing of Plaintiffs' motion for a preliminary injunction on January 14, 2000, 1 have periodically revisited the web sites of defendants Eric Corley a/k/a "Emmanuel Goldstein" and 2600 Enterprises, Inc. (the "2600 defendants"), at http://www.2600.com. The analysis set forth below and the Exhibits attached to this Declaration are the result of that continuing investigation.

3. When Plaintiffs' motion for a preliminary injullction was filed, the 2600 defendants maintained a so-called "mirror list" -- a list of hyperlinks to sites where users could go to obtain the illegal DeCSS utility at issue in this case. The list is contained on the page within the 2600 defendants' site at http://www.2600.com/news/1999/1227-help.html. At the time Plaintiffs' motion for a preliminary injunction was filed, the mirror list contained approximately 161 hyperlinks. See Declaration of Bruce E. Boyden, Esq., in Support of Plaintiffs' Application for a Preliminary Injunction, dated January 13, 2000 ("Boyden Moving Decl.") Ex. 7.

4. At the time that this Court issued its preliminary injunction Order, the number of hyperlinks on the list remained unchanged. Attached as Exhibit A is a true and correct copy of the mirror list as it existed on January 24, 2000. (The first page of Exhibit A is a true and correct copy of the text message at the top of the mirror list on January 24.)

5. Shortly thereafter, the 2600 defendants began adding to the number of hyperlinks on the mirror list. A true and correct copy of the mirror list as it existed on March 23, 2000 is attached as Exhibit B. The 2600 defendants added 313 hyperlinks to the mirror list between January 24 and March 23, and removed 43 hyperlinks that were no longer active; there are now (as of March 23) a total of 431 hyperlinks on the list, 357 of which are active (as explained below). The site now (as of March 23) also contains input fields at the end of the list of hyperlinks, where users arc instructed to "submit your mirror site containing these files," presumably for inclusion in the list.

6. The 2600 defendants have also changed the "home page" of their web site (i.e., the page that users first view when typing "www.2600.com" into their browsers), since the preliminary injunction was entered. That page now (as of March 23) features a plea to "STOP THE MPAA", explaining, "Help us fight the MPAA by leafletting and mirroring DeCSS." When the word "mirroring" is clicked on, it takes the user directly to the mirror list on the site. Previously, on February 1, 2000, the 2600 defendants issued a "CALL TO ACTION" on their home page, requesting readers to "HELP MIRROR DECSS" and directing them to the mirror list. Attached as Exhibits C through F are true and correct copies of the "home page" as it existed on February 1, 2000, February 5, 2000, February 7, 2000, and March 23, 2000, respectively.

7. As part of my investigation, I visited every web site linked to by the 2600 defendants via their mirror list. I confirmed, for each "linked-to" site, whether the DeCSS file was available at the site. I found that, as of March 23, 74 sites are no longer active, leaving a total of 357 active linked-to sites on the Defendants' list of hyperlinks. Of those sites, 233 have been added to the list since January 20.

8. Eleven of the hyperlinks on the 2600 defendants' mirror list cause the immediate downloading of the DeCSS file when clicked on. The user is merely presented with a screen confirming that downloading should begin. A true and correct copy of the screen of my computer upon clicking one such hyperlink, http://www.darkkingz.com/DeCSS.zip, is attached as Exhibit G.

9. 175 of the hyperlinks on the 2600 defendants' mirror list link to sites which contain little beyond a hyperlink to the DeCSS file. Attached as Exhibit H is a true and correct copy of such a "bare-bones" site. Thus, on these sites, the user effectively is taken directly to the DeCSS utility.

10. 63 of the hyperlinks on the 2600 defendants' mirror list link to sites which require the user to scroll down a screen or so after clicking on the 2600 defendants' hyperlink in order to find the DeCSS file. Attached as Exhibit I is a true and correct copy of an example of such a site.

11. Only 18 of the hyperlinks on the 2600 defendants' mirror list link to sites which require thc user to click again at the new site to reach the page or site where the DeCSS file is offered. Such sites present the user with a "cascading link" to the DeCSS file, as defined in the Supplemental Declaration of Robert W. Schumann in Support of Plaintiffs' Motion to Modify the January 20, 2000 Order of Preliminary Injunction, dated April 3, 2000, ¶ 7(d). When the user clicks on the 2600 defendants' hyperlink, the user is taken to a site or page that does not itself offer the DeCSS file, but instead contains another hyperlink that, when clicked on, transports the user directly to the icon or highlighted script on another page within that site or to another site that, when clicked on, begins the download of the DeCSS file. Attached as Exhibits J through K are true and correct copies of an example of a "cascading link". The page linked to by the 2600 defendants is attached as Exhibit J; after clicking on the hyperlink marked "here" in the sentence "Files can be found here" in Exhibit J, the user is taken to another page on the same site, attached as Exhibit K, which in turn contains a hyperlink to a DeCSS file. Attached as Exhibits L and M are true and correct copies of another example of a cascading link, in which the user is taken from 2600.com to the linked-to site, Exhibit L, and from there (by clicking on the highlighted text "The DVD crack") to a third site, Exhibit M, where the DeCSS file can be downloaded.

12. Many of the sites contain proclamations that their owners are posting DeCSS in aid of or in response to a request by the 2600 defendants. Attached as Exhibits N through Q are true and correct copies of four such sites. For example, in the page attached as Exhibit N, the site owner announces, "I have mirrored this for www.2600.com, please d[own]load it and read there [sic] story." Another site owner proclaims, "Help support 2600 by mirroring these files and registering your link as a Mirror." A copy of that site is attached as Exhibit O. Yet another site owner instructs visitors to "Go to www.2600.com and read why these files are here." A copy of that site is attached as Exhibit P. Another site calls upon readers to "Support 2600 in their fight against the industry.... [G]et the DeCSS sources here." A copy of this site is attached as Exhibit Q.

13. On some of the sites the 2600 defendants link to, the hypertext link to the DeCSS file is contained in an image rather than in underlined text. Exhibit R is a true and correct copy of an example of such a site. Clicking on the image marked "Decss.zip" at the top of the page begins the downloading of the DeCSS file.

14. All of the above-described hyperlinks on 2600.com (totaling 267) link to sites which currently offer a copy of the DeCSS file. Of the remaining 90 hyperlinks on 2600.com, 23 link to sites which contain the CSS authorization source code, and 67 either contain inactive links to the DeCSS file, or lack DeCSS or the CSS authorization source code altogether. Many of the sites in the latter category explicitly state that they have removed DeCSS in response to a request by tlae Motion Picture Association. Attached as Exhibit S is a true and correct copy of a site from which DeCSS has apparently been removed by the site owner. The site owner requests that visitors proceed instead to one of the many other sites still hosting the file. Attached as Exhibit T is a true and correct copy of a site linked to by the 2600 defendants that offers the CSS authorization source code file, usually designated as "css-auth.tar.gz," and other code files, but does not offer DeCSS in the form of an immediately executable utility.

I declare under penalty of perjury that the foregoing is true and correct.

Executed: New York, New York
                 April 3, 2000



   
                                                  By: [Signed]

Bruce E. Boyden (BB-5278)





Source: http://www.2600.com/news/2000/0406-motions/brieftoexpandpi.pdf (1.3MB)

[15 pages]

SERVICE COPY

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (pro hac vice admission to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS INC.;
TRISTAR PICTURES, INC.; COLUMBIA
PICTURES INDUSTRIES, INC.; TIME WARNER
ENTERTAINMENT CO., L.P.; DISNEY
ENTERPRISES, INC.; AND TWENTIETH
CENTURY FOX FILM CORPORATION,

Plaintiffs,

v.

SHAWN C. REIMERDES; ERIC CORLEY A/K/A
"EMMANUEL GOLDSTEIN"; AND ROMAN
KAZAN,

Defendants.

___________________________________________

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00 Civ. 0277 (LAK)



MEMORANDUM OF LAW IN
SUPPORT OF PLAINTIFFS'
MOTION TO MODIFY THE
JANUARY 20, 2000 ORDER OF
PRELIMINARY INJUNCTION



Preliminary Statement

Faced with the increased efforts of defendants Eric Corley a/k/a/ "Emmanuel Goldstein" ("Corley") and 2600 Enterprises, Inc. (collectively, the "2600 defendants")1 to proliferate the DeCSS utility in the wake of this Court's January 20, 2000 preliminary injunction against "posting," and the Court having determined that a trial will not be held until December 5, 2000, plaintiffs now move, in accordance with the Court's suggestion at the January 20, 2000 hearing, to (a) modify the Court's Order to prohibit the 2600 defendants from deliberately "linking" to other Internet web sites offering DeCSS,2 and (b) for leave to amend the complaint to make largely conforming changes.3 At least in this context, and under substantially similar circumstances, posting and linking are substantially similar activities, and both constitute "providing" or "offering" DeCSS to the public in violation of section 1201 (a)(2) of the Copyright Act.

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1. This Court properly rejected Corley's claim that he is not the "real party in interest" because 2600 Enterprises, Inc. was the actual "owner" of the web site at which DeCSS was posted. See Memorandum Opinion, dated February 2,2000 ("Mem. Op.") at 7-8; Defendants' Memorandum in Opposition, dated January 19, 2000 at 6. Corley has since agreed to allow plaintiffs to amend the complaint to add 2600 Enterprises, Inc. as a defendant, and a stipulation to that effect will be filed shortly. Defendant Roman Kazan has, since the Court's Order, entered into a Consent Judgment which prohibits both posting and linking to DeCSS. See Consent Judgment Against Roman Kazan, dated March 17,2000. Defendant Shawn C. Reimerdes has also agreed to a similar Consent Judgment which will be submitted immediately upon its execution.

2 This motion is in keeping with the Court's invitation to "deal with [the 'linking' issue] in the form ... of an application to modify ...." (See January 20, 2000 Hearing Transcript ("Hr'g. Tr.") at 85.) On a motion to modify an injunction, the Court "is charged with the same exercise of discretion it exercised in granting or denying injunctive relief in the first place." Sierra Club v. U.S. Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir. 1984). The Court may modify an injunction "when, based on principles of equity, the modification is necessary to preserve the status quo." Museum Boutique Intercontinental, Ltd. v. Picasso, 880 F. Supp. 153, 161 (S.D.N.Y. 1995); see also Sierra Club, 732 F.2d at 256 ("An injunction is an ambulatory remedy that marches along according to the nature of the proceeding," and which is "executory and subject to adaption as events may shape the need ....").

3 Plaintiffs seek only to amend the complaint to add a defendant who has already consented to be added, to delete references to defendants that have since settled, to conform the prayer for relief to the proposed modifications to the injunction (modifications which, as discussed herein, are necessitated by developments occurring on the 2600 defendants' site since the prior amendment), and to make other minor, conforming changes. (See Proposed Second Amended Complaint, dated April 4, 2000, attached as Exhibit A to the Notice of Motion to Modify the January 20, 2000 Order of Preliminary Injunction and For Leave to Amend the Complaint, submitted herewith.) Under these circumstances, leave should be granted. See Fed. R. Civ. P. 15(a) (leave to amend a pleading "shall be freely given when justice so requires"); Foman v. Davis, 371 U.S. 178, 182 (1962).

Statement of Relevant Facts

On January 20, 2000, this Court preliminarily enjoined the defendants from "providing," "offering to the public," or "otherwise trafficking in" DeCSS — an unlawful "circumvention device" within the meaning of the anti-circumvention provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. ("DMCA") — by "posting" the software utility on any of their Internet web sites. (Hr'g. Tr. at 85.) At the time the Court issued its injunction, it expressly left open the question orally raised by plaintiffs at the end of the hearing of whether the 2600 defendants' provision of "hyperlinks" (or "hypertext links") to other web sites offering the DeCSS utility for downloading fell within the statutory prohibition against, inter alia, "offer[ing] to the public, provid[ing], or otherwise traffic[king] in" illegal circumvention devices. See 17 U.S.C. § 1201(a)(2) (1999). Plaintiffs respectfully submit that any attempt to draw lines between the 2600 defendants' acts of directly "posting" DeCSS on their own servers and providing hyperlinks to other postings on other sites is to create a distinction without a difference.

A "link" or "hyperlink" is a link from one location on the Internet to a second location on the Internet. "Clicking" on a designated signifier (e.g, a picture, several highlighted letters or some other textual indication) at the first location will take a person to the second location. See Intermatic. Inc. v. Toeppen, 947 F. Supp.1227,1232 (N.D. III. 1996). An example of a picture hyperlink (or icon) is presented as Exhibit R to the Supplemental Declaration of Bruce E. Boyden, Esq., dated April 3, 2000 ("Supp. Boyden Decl."). An example of a text hyperlink (or icon) is presented as Exhibit H to the Supp. Boyden Decl. Plaintiffs here seek to enjoin solely the use of such signifiers by the 2600 defendants so that the public cannot receive DeCSS by visiting any of the 2600 defendants' web sites (the clear intention of this Court's prior order).

A hyperlink, in the context of the Internet, generally refers to software instructions which, when executed, cause a signal to be sent to another location where data or material can be retrieved for viewing, copying or further transmission. (See Supplemental Declaration of Robert W. Schumann, dated April 3, 2000 ("Supp. Schumann Decl.") ¶ 2.) Hyperlinks enable a computer user to quickly locate and retrieve data from another file or web site location without the necessity of searching and manually inputting a particular file or site location. (Id. ¶ 3.) By making that material readily available through the use of a hyperlink, time and effort is saved by the user, as all the user need do is "click" on the word, text, icon or other "signifier" and the browsing software will execute the embedded linking instructions to locate and retrieve the "linked to" material without further steps having to be taken by the user. (Id.) In particular, the user need not rely on a "search engine" to seek out and locate relevant material through the use of keywords that are likely to appear in the desired material — the hyperlink is essentially a "hard-wired" path with specific instructions directly to the desired material. (Id.)

Although they are no longer directly posting DeCSS on their web sites, the 2600 defendants continue to offer and provide DeCSS to the public by creating hyperlinks directly to other unlawful postings of DeCSS. (See Supp. Schumann Decl. ¶¶ 4-9; see generally Supp. Boyden Decl. ¶¶  3-11.)

At the time plaintiffs filed this lawsuit, the 2600 defendants were posting DeCSS at the 2600.com web site by means of an "interior" hyperlink between two locations within the site. (Supp. Schumann Decl. 6.) In order to access and download DeCSS from the 2600.com site, one "navigated" first to the location referenced above, and then clicked on a highlighted "DeCSS.zip" hyperlink to download it. (Id.) Currently, by virtue of the 2600 defendants' linking scheme discussed below, a user can still go to the 2600.com site and easily download DeCSS with only a few clicks of a mouse button — indeed, the site is virtually identical.

There is now (as of March 23, 2000) text on the page of the 2600.com web site, which states "Help us fight the MPAA by leafletting and mirroring DeCSS." (Id. ¶ 7; Supp. Boyden Decl. ¶ 6.) By clicking on the highlighted word "mirroring," one is taken immediately to another page on the 2600.com web site where a list of hyperlinks to other DeCSS postings appears. (Supp. Schumann Decl. ¶ 7; Supp. Boyden Decl. ¶ 6.)4

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4 Prior to adding this language to their home page, but subsequent to the Court's issuance of the injunction, the highlighted text on the 2600.com home page read simply "HELP MIRROR DECSS." (Supp. Boyden Decl. ¶ 6, Exs. C-E.)

By clicking on any of the hyperlinks in this list, the user gets direct access to DeCSS in a number of ways. (Supp. Schumann Decl.7; Supp. Boyden Decl. ¶¶ 7-11.) The majority of the hyperlinks currently provided at 2600.com contain DeCSS as a downloadable, executable utility. (See Supp. Boyden Decl. ¶¶ 7, 11, Exs. G-M; Supp. Schumann Decl. ¶ 7.) Some of these hyperlinks start an immediate download of DeCSS, thereby furnishing the utility without requiring the user to "click" any further (other than to confirm an instruction to download DeCSS). (See Supp. Boyden Decl. ¶ 8, Ex. G; Supp. Schumann Decl. ¶¶ 7, 9.) Other hyperlinks take the user to the specific page or directory listing on another web site — without requiring the user to scroll within the site — where a DeCSS icon or highlighted script appears, which the user need only click on to download the utility. (See Supp. Boyden Decl. ¶ 9, Ex. H; Supp. Schumann Decl. ¶ 7.) Still others take the user to a page or site that contains DeCSS, although the user must scroll down a bit to locate the utility posting before "clicking" to download it. (See Supp. Boyden Decl. 10, Ex. I; Supp. Schumann Decl. 7 ) And still others, when clicked on, present the user with another web site location which does not itself contain DeCSS, but rather, a hyperlink to another site or page that does. (See Supp. Boyden Decl. 11, Exs. J-M; Supp. Schumann Decl. 7 )

Since this Court issued its preliminary injunction, the 2600 defendants have stepped up and expanded their activities designed to proliferate DeCSS. The 2600 defendants have added 313 hyperlinks to their site since the hearing on January 20. (Supp. Boyden Decl. 5, Exs. A & B.) As noted above, and as more fully described in the accompanying declarations, the majority of these hyperlinks cause DeCSS to be downloaded onto the user's computer, with a few mouse clicks, as quickly and conveniently as it was when DeCSS was posted to the site. (See Suppl. Boyden Decl. ¶¶ 7-11, Exs. G-M; Suppl. Schumann Decl. ¶ 7.) In fact, the 2600 defendants are encouraging others on the Internet to "mirror" or post DeCSS on their own web sites and requesting that those persons who have joined in such illegal conduct furnish the 2600 defendants with the Internet location(s) where the DeCSS posting appears and can be downloaded. (See Supp. Boyden Decl. ¶¶ 5-6, EX. C-F). The 2600 defendants even provide a convenient "entry window" in connection with their hyperlink list, which enables new DeCSS "posters" to easily submit their web site location ("URL") to the 2600.com web site. (Id. ) Indeed, after the January 20, 2000 preliminary injunction, the 2600 defendants noted that:

update 01/30/00
We continue to get new links constantly. We thank everyone out there for their support and will continue to update the links as long as we're able to.

(Id. Ex. B) (emphasis supplied.)

Obviously, it is immaterial to the end user whether he or she acquires DeCSS through a posting or through a hyperlink to a posting. Thus, through their ongoing activities, the 2600 defendants are accomplishing what Congress clearly prohibited — offering and providing to the public unlawful circumvention devices in violation of 17 U.S.C. § 1201(a)(2).

In fact, the 2600 defendants make perfectly clear that their motive in soliciting and providing these hyperlinks is to "circumvent" the Court's Preliminary Injunction Order by doing what they are already enjoined from doing by posting -- providing, offering, and disseminating DeCSS to the public on the Internet. The expanded list of hyperlinks on the 2600.com web site is preceded by the following statement:

While we have every intention of sticking this out to the end, we have to face the possibility that we could be forced into submission. For that reason, it's especially important that as many of you as possible, all throughout the world, take a stand and mirror these files . . . Already, a handful of sites have gone down due to this latest bit of intimidation. We need to replace them and add to their number.

(Supp. Boyden Decl. Ex. B.)

To be clear, plaintiffs do not seek to enjoin the 2600 defendants' generalized statements or "reports" about the "fight" over DeCSS or from expressing their dislike for plaintiffs or their litigation activities. In the instant motion, plaintiffs only seek modification of the Court's injunction directed to the linking activity described herein. As demonstrated below, such activity -- which is virtually indistinguishable from posting -- violates the anti-circumvention provisions of the DMCA and finds no protection in the First Amendment. Further, through this motion, plaintiffs are not asking the Court to enjoin the parties responsible for the postings of DeCSS at the "linked-to" sites (although plaintiffs have taken, and will continue to take, action against these third party "posters" of DeCSS). This Court can, and should, however enjoin defendants who are properly before it from emasculating the preliminary injunction by continuing to "provide" DeCSS.

Argument

A. THE 2600 DEFENDANTS' LINKING SCHEME VIOLATES THE DMCA

1. THE 2600 DEFENDANTS ARE STILL "PROVIDING" DECSS

The facts demonstrate the 2600 defendants are still "providing" DeCSS in violation of Section 1201 (a)(2) of the DMCA. Although the DMCA does not define the word "provide," it is a "fundamental canon of statutory construction" that words not defined in a statute "will be interpreted as taking their ordinary, contemporary, common-meaning." Perrin v. U.S., 444 U.S. 37, 42 (1979). The ordinary, common-meaning of "provide" is to "supply, afford, contribute, make, procure, or furnish for future use." Central Midwest Interstate Low-Level Radioactive Waste Comm. v. Commonwealth Edison Co., 113 F.3d 1468, 1474 (7th Cir. 1997) (citing Black's Law Dictionary 1224 (6th ed. 1990)). See also WEBSTER'S II NEW RIVERSIDE DICTIONARY at 552 (rev. ed. 1996) (defining "provide" as "1. To supply or furnish (something needed or useful);" and "2. To have or offer for use.").5 Here, the 2600 defendants have deliberately set up the 2600.com site to function as a distribution center for the ready availability and delivery of DeCSS. (See Supp. Schumann Decl. ¶ 10.) The site continues to be a place where a user can obtain a download of DeCSS with a click or two of the mouse. Thus, the 2600 defendants are "procuring," "supplying," "furnishing" or "offering [DeCSS] for use." Cf, Central Midwest, 113 F.3d at 1474 (interstate compact governmental entity would be "providing" for waste disposal within meaning of federal waste policy statute by allowing a third party to build and operate a disposal facility); Dower v. Gamba, 276 N.J. Super.319, 326-27, 647 A.2d 1364, 1367-68 (Sup. Ct., App. Div. 1994) (interpreting term "provide" as used in social host liability statute to encompass the indirect furnishing of alcoholic beverages), cert. denied, 140 N.J. 276 (1995).

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5 Similarly, the common dictionary definition of "offer" is, inter alia, "to provide" or "furnish." Id. at 477.
2. THE 2600 DEFENDANTS ARE LIABLE FOR CONTRIBUTORY VIOLATIONS OF THE DMCA

In addition, the 2600 defendants' scheme also constitutes a "contributory" violation of Section 1201(a)(2). Section 1201 does not expressly address contributory liability principles. Nevertheless, courts have applied such principles, even absent a specific legislative mandate, where they "advance the goals of the particular federal statute which plaintiffs allege has been violated." See American Telephone and Telegram Co. v. Winback and Conserve Program, Inc. ("AT&T"), 42 F.3d 1421 (3d Cir. 1994), cert. denied, 514 U.S. 1103 (1995); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 435 (1984) ("vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another") (emphasis supplied); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 854 (1982) (contributory liability available under Lanham Act despite lack of explicit statutory language providing for such liability). The DMCA was specifically enacted to augment federal copyright law by prohibiting dissemination of technological devices designed to circumvent "technological measure[s] that effectively control[] ... access to a [copyrighted] work ...." 17 U.S.C. § 1201 (a)(2). This Court expressly found that "[i]n enacting the DMCA, Congress found that the restriction of technologies for the circumvention of technological means of protecting copyrighted works 'facilitate[s] the robust development and world-wide expansion of electronic commerce, communications, research, development, and education' by 'mak[ing] digital networks safe places to disseminate and exploit copyrighted materials."' (Mem. Op. at 18) (quoting S. REP. No. 105-90, 105th Cong., 2d Sess. (1998).) "It is a tool to protect copyright in the digital age." (Mem. Op. at 18, 20.)

Imposing liability on the 2600 defendants for engaging in a scheme which both encourages and provides substantial assistance to others to provide DeCSS for quick and easy downloading unquestionably serves the overall purpose of the DMCA. See Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999) (defendant contributorily liable for making reference on its web site to other sites containing infringing matter, and encouraging users to go to those sites).

3. THIS COURT HAS BROAD POWER TO FASHION AN EFFECTIVE REMEDY

This Court is empowered to fashion, and plaintiffs are entitled to, a remedy that effectively protects plaintiffs' rights under the anti-circumvention provisions of the DMCA. There is a critical "distinction between a statutory right and the equitable relief necessary to protect the right." Timothy R. Cahn & Joshua R. Floum, Applying The Safe Distance Rule In Counterfeiting Cases: A Call For The Use of Broad Equitable Power to Prevent Black and Gray Marketeering, 8 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 487, 490 (Winter 1998). Thus, "a court's equitable powers to secure rights created by statute may include the enjoining of conduct otherwise lawful under the statute when the injunction is tailored to vindicate the statutory rights." Id. (citing ES Development, Inc. v. RWM Enterp., Inc., 939 F.2d 547, 557-58 (8th Cir. 1991) (enjoining defendant automobile dealers from communicating with their manufacturers even though such communications constituted commercial speech protected under the First Amendment), cert. denied, 502 U.S. 1097 (1992)); 1 DAN B. DOBBS, DOBBS LAW OF REMEDIES 114 (2d ed. 1993) ("Because injunctions can provide many different means and terms, they may at times be tailored to forbid acts that are not themselves wrongs . . . .")).6 Here, for the injunction to have any meaning, and to vindicate plaintiffs' rights under the DMCA, the 2600 defendants must be precluded from engaging in activities which (a) are for all practical purposes identical to the activities which the Court has already enjoined, and (b) accomplish the same thing that the plaintiffs sought to, and the Court did, enjoin — the widespread proliferation of DeCSS. Indeed, the 2600 defendants' activities described above are part and parcel of what the Court aptly characterized as "frenzied efforts to mirror and otherwise disseminate the program in . . . an attempt . . . to get this so widely disseminated that the genie never could be put back into the bottle . . . ." (Hr'g. Tr. at 50; see also id. at 61-62; Mem. Op. at 22 (noting that defendants' "posting is part of a course of conduct the clear purpose of which is the violation of law").)

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6 See also Oral-B Laboratories, Inc. v. Mi-Lor Corp., 810 F.2d 20, 24 (2d Cir. 1987) (defendant who had already been enjoined from infringing plaintiff's trade dress was prohibited from engaging in activities which, if viewed in isolation, might not have been actionable); Supply Manufacturing Co. v. King Trimmings, Inc., 220 F. Supp. 947, 951 (S.D.N.Y. 1963) (although defendants' marks, when viewed in isolation, might not have been confusingly similar to plaintiffs' mark, use of those marks by defendant was "transparent attempt to circumvent the injunction against use of" plaintiff's mark and, in "light of the entire history of defendant's activities," was enjoined).

In Playboy Enterp., Inc. v. Chuckleberry Publ., Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996), the Court issued an injunction in 1981 which barred the defendant from, inter alia, publishing, printing, distributing or selling, in the United States, an English-language male sophisticate magazine which used the word "PLAYMEN" or any other word confusingly similar to plaintiff's ''PLAYBOY" mark. Fifteen years later, the defendant sought to take advantage of the new Internet technology to circumvent the injunction, by creating an Internet site featuring the "PLAYMEN" name. Defendant created the site by uploading the images onto a web server located in Italy. Recognizing that it had "neither the jurisdiction or the desire to prohibit the creation of Internet sites around the globe," the Court nevertheless held that although the offending activity occurred on a foreign web site, and although the 1981 injunction did not bar defendant from maintaining the foreign web site, the Court retained jurisdiction over the defendant for the purpose of enforcing the injunction, and it could therefore prohibit access to the sites in the U.S. by barring the defendant from accepting subscriptions from U.S. customers. Id. at 1036 n.4, 1046. Central to the Court's analysis was the recognition that "allowing the Defendant to contravene the clear intent of the Injunction by permitting it to distribute pictural images over the Internet [by virtue of the foreign web site] would emasculate the injunction." Id. at 1037.

Here, similarly, the preliminary injunction does not bar non-party sites from providing DeCSS (unless those non-parties are "doing so in active concert or participation with" the 2600 defendants, see Fed. R. Civ. P. 65(d)). Plaintiffs are aware that to prevent such third parties from posting DeCSS, they will have to take action against those third parties (which they have done, and will continue to do). But the Court does have jurisdiction over these defendants, and can prevent them from acting as a virtual "distribution center" for DeCSS through a linking scheme purposefully designed to emasculate the injunction.

B. THE 2600 DEFENDANTS' LINKING SCHEME IS NOT PROTECTED BY THE FIRST AMENDMENT

This Court has already concluded that "[a]pplication of the DMCA to prohibit production and dissemination of DeCSS . . . does not violate the First Amendment." (Mem. Op. at 23.) Plaintiffs respectfully submit that this premise holds true whether that dissemination occurs by reason of direct posting of downloadable DeCSS on one's own web site, or by deliberately linking to downloadable DeCSS on a third party web site — processes which, for the reasons described above, are effectively identical.

Indeed, if one engages in the balancing approach undertaken by the Court in granting the preliminary injunction (see Mem. Op. at 20-21), the scale tips just as decidedly in plaintiffs' favor when the defendants are linking to DeCSS as when they are posting the utility. The hyperlinks to DeCSS -- like DeCSS itself -- are computer code, with minimal, if any,7 expressive content (see id. at 20), while the interest served by prohibiting such hyperlinks -- maintaining the inviolability of copyrighted DVD motion picture content -- remains just as weighty on plaintiffs' side of the balance.

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7 For the reasons submitted in support of plaintiffs' original application for a preliminary injunction, under these circumstances providing a hyperlink to a site containing DeCSS is not "speech" within the purview of the First Amendment. (See Reply Mem. of Law in Further Support of Plaintiffs' App. for a Preliminary Injunction at 6-7.) As the Court pointed out, even if such links are considered "speech," that is merely the "beginning of the analysis." (Mem. Op. at 16.) Similarly, plaintiffs contend that even if linking to sites containing DeCSS involves some expressive content, such linking may be constitutionally enjoined. (See Mem. Op. at 22-23.)

Even if the Court were to find that the act of linking contained some expressive content, that would not shield such activities from the reach of this Court. As this Court noted, Congress may constitutionally proscribe certain activities -- even if those activities are imbued with some expressive content -- where they are "part of a course of conduct the clear purpose of which is the violation of law." (Mem. Op. at 22 citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (First Amendment did not prohibit injunction against peaceful picketing activities as picketing was integral to course of conduct in violation of a valid criminal statute).) Whether accomplished through posting or linking, the "principal object" of the 2600 defendants' dissemination of DeCSS is copyright infringement (id. at 23) and "[a]pplication of the DMCA to prohibit [such] dissemination of DeCSS therefore does not violate the First Amendment." (Id.)

Moreover, this case presents a unique situation where the regulation of the 2600 defendants' linking scheme will ultimately serve to foster other constitutional interests, namely, the plaintiffs' First Amendment right to speak (through their copyrighted motion pictures), and the protection of plaintiffs' constitutionally mandated copyright interests. As the Supreme Court has recognized, copyright protection reflects the notion that "encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' " Mazer v. Stein, 347 U.S. 201, 219 (1953). And, as this Court correctly noted, the widespread dissemination of DeCSS "would discourage artistic progress and undermine the goals of copyright" (Mem. Op. at 21), and would therefore undermine the values of free expression.

The 2600 defendants may argue, as they began to do at the preliminary injunction hearing, that by enjoining linking, the Court will be stifling expression which may or may not exist on the linked-to sites. Indeed, the 2600 defendants argued at the hearing that such linked-to sites may include the web sites of news institutions such as The San Pedro Mercury News. (See Hr'g. Tr. at 82-83.) This argument is a red herring for two reasons. First, it ignores the fact that the 2600 defendants are not incidentally or accidentally linking to sites which may or may not include expression and which may or may not include downloadable DeCSS. They are engaged in a deliberate scheme to encourage others to post DeCSS, request the URL Internet addresses of those postings, and then create hyperlinks to those postings to deliver DeCSS "virtually," and no less conveniently, through the 2600 site. Thus the 2600 defendants have full knowledge that the hyperlinks they are providing contain downloadable DeCSS. Second, to the extent that any linked-to sites contain expression along with DeCSS, the effect of enjoining the hyperlinks will not be to remove that expression. The linked-to sites will still exist, and any expression contained thereon will be available for anyone to read. The injunction will merely prevent these defendants from operating a DeCSS utility distribution center.

Conclusion

For the foregoing reasons, the Court should modify the January 20, 2000 preliminary injunction by prohibiting the 2600 defendants from "linking" to DeCSS or any other technological device primarily designed or produced for the purpose of circumventing, or circumventing the protection afforded by CSS, or any other technological measure adopted by plaintiffs that effectively controls access to plaintiffs' copyrighted works, or effectively protects plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works, or portions thereof. The Court should also grant plaintiffs leave to make largely conforming amendments to the complaint.



DATED: New York, New York
               April 4, 2000



   
                                                  PROSKAUER ROSE LLP

By: [Signed]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

- and -

Jon A. Baumgarten (pro hac vice admission
to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs


Source: http://www.2600.com/news/2000/0406-motions/propac.pdf (724K)

[11 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten (pro hac vice admission to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;
PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS INC.;
TRISTAR PICTURES, INC.; COLUMBIA
PICTURES INDUSTRIES, INC.; TIME WARNER
ENTERTAINMENT CO., L.P.; DISNEY
ENTERPRISES, INC.; AND TWENTIETH
CENTURY FOX FILM CORPORATION,

Plaintiffs,

v.

SHAWN C. REIMERDES; ERIC CORLEY A/K/A
"EMMANUEL GOLDSTEIN"; AND ROMAN
KAZAN,

Defendants.

___________________________________________

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00 Civ. 0277 (LAK)(RLE)



SECOND AMENDED COMPLAINT
FOR VIOLATION OF
PROVISIONS GOVERNING CIRCUMVENTION OF
COPYRIGHT PROTECTION
SYSTEMS, 17 U.S.C. § 1201, et seq.



Plaintiffs Universal City Studios, Inc.; Paramount Pictures Corporation; Metro-Goldwyn-Mayer Studios, Inc.; Columbia Pictures Industries, Inc.; Time Warner Entertainment Co., L.P.; Disney Enterprises, Inc.; and Twentieth Century Fox Film Corporation by their attorneys Proskauer Rose LLP, as and for their amended complaint, allege as follows:

Nature of Claims

1. This is a Second Amended Complaint for injunctive relief and related relief against Eric Corley a/k/a "Emmanuel Goldstein" ("Corley") and 2600 Enterprises, Inc. ("2600 Enterprises") (collectively, the "2600 Defendants"), an individual and/or entity responsible for proliferating a software device that unlawfully defeats the DVD copy protection and access control system -- the Content Scramble System ("CSS") -- so that individuals can unlawfully gain access to, and/or make, distribute, and/or otherwise electronically transmit or perform unauthorized copies of Plaintiffs' copyrighted motion pictures and other audiovisual works. The acts of the 2600 Defendants, which are described more fully below, violate the provisions of the United States Copyright Act governing circumvention of copyright protection systems, 17 U.S.C. § 1201, et seq.

The Parties

2. Plaintiff Universal City Studios, Inc., is a corporation duly incorporated under the laws of the State of Delaware.

3. Plaintiff Paramount Pictures Corporation is a corporation duly incorporated under the laws of the State of Delaware.

4. Plaintiff Metro-Goldwyn-Mayer Studios Inc., is a corporation duly incorporated under the laws of the State of Delaware.

5. Plaintiff TriStar Pictures, Inc., is a corporation duly incorporated under the laws of the State of Delaware.

6. Plaintiff Columbia Pictures Industries, Inc., is a corporation duly incorporated under the laws of the State of Delaware.

7. Plaintiff time Warner Entertainment Co., L.P., is a limited partnership organized under the laws of the State of Delaware.

8. Plaintiff Disney Enterprises, Inc., is a corporation duly incorporated under the laws of the State of Delaware.

9. Plaintiff Twentieth Century Fox Film Corporation is a corporation duly incorporated under the laws of the State of Delaware.

10. Plaintiffs are eight motion picture studios. Each plaintiff is engaged in the business of producing, manufacturing, and/or distribution of copyrightable and copyrighted material, including, specifically, motion pictures. Plaintiffs, either directly or through their affiliates, distribute motion pictures theatrically, via television broadcast, and on portable media such as videocassette tapes and digital versatile discs ("DVDs") for distribution in the home video market. In the course of its business, each plaintiff or its predecessor in interest obtained ownership of the United States copyrights, the exclusive reproduction, adaptation, and/or distribution rights under United States copyrights, and/or state statutory and common law rights, in various motion pictures in such DVDs. Plaintiffs are the leading producers and distributors of motion pictures in DVD format in the United States, including such recent blockbusters as "Titanic" and "The Matrix," and approximately 4,000 titles which have been released in the United States on DVD to date. Current industry estimates place DVD sales at over 1,000,000 units per week.

11. On information and belief, defendant Corley, who, on information and belief, uses nom de net "Emmanuel Goldstein, either resides or has his principal place of business at xxxxxx, New York. [Address omitted by Cryptome.]

12. On information and belief, defendant 2600 Enterprises is a not-for=profit corporation duly incorporated unde the laws of the State of New York, with an address for service of process at Box 752, Middle Island, NY 11953.

13. On information and belief, defendant Corley a/k/a Emmanuel Goldstein and/or defendant 2600 enterprises operate and Internet web site at www.2600.com.

Jurisdiction and Venue

14. The Court has jurisdiction of this action under 17 U.S.C. §§ 101 et seq., 28 U.S.C. §§1331 (federal question) and 1338(a) (copyright).

15. This court has personal jurisdiction over the Defendants in that each Defendant resides or has his principal place of business, or is duly incorporated in the State of New York.

16. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 1301(c) and 28 U.S.C. § 1400(a) as (a) this is a judicial district in which a substantial part of the events giving rise to the claims occurred, and/or (b) all of the defendants reside in the State of New York and this is a judicial district in which some of the defendants reside, and/or (c) this is a judicial district in which some of the defendants may be found, and there is no judicial district in which the action may otherwise be brought, and/or this is a judicial district in which the corporate defendants are subject to personal jurisdiciton.

Background Facts

DVD Technology

17. With the advent of the VCR and videocassette tapes, home viewing of motion pictures became a convenient, inexpensive way to enjoy motion pictures. DVDs are 5-inch-wide discs that hold full-length motion pictures and are the most current technological advancement for private home viewing of motion pictures. This technology significantly improves the clarity and the overall quality of the motion picture when played on a television screen or computer monitor.

18. DVDs incorporating full-length motion pictures, together with additional and ancillary features such as interviews and alternative sound tracks, can be played back for viewing in the home by dedicated, free standing "DVD players" and by personal computers configured with a DVD "drive" and additional hardware or software modules, sometimes referred to as "media players."

19. DVDs contain digital information. When motion pictures in form are digital copied or transmitted, the clarity and overall quality of the motion pictures do not suffer (as they do when a copy is made from an analog source, such as a videocassette). Moreover, the fact that the motion pictures contained on DVDs are in digital format allows any unauthorized copies of those motion pictures from DVDs to be transmitted over the Internet, stored in computer memory, and duplicated for unlawful sale, transfer and exchange. Once these copies are in the hands of another user, the unlawful process can begin once again because the copies have the clarity and quality of the original DVDs containing the motion picture.

Contents Scramble Systems ("CSS")

20. Because motion pictures in unprotected digital format on DVDs would be subject to ready unlimited copying and create a threat to the market viability of DVD technology, the plaintiffs were reluctant to release valuable film libraries and new film releases without the implementation of a copy protection and access control system. Plaintiffs therefore ultimately accepted  a copy protection and access control system developed by Matshusita Electric Industrial Co., Ltd. and Toshiba Corporation -- the Contents Scramble System ("CSS") -- in order to provide security to the copyrighted contents of DVDs and thereby provide protection for the copyrighted content against unauthorized copying. CSS includes elements of encryption and other security and authentication measures that require DVD playback devices, including appropriately configured personal computers, to operate with certain keys in order to descramble and intelligibly play back copies of motion pictures from DVDs. All members of the DVD industry, including software and hardware manufacturers of DVD players, DVD replicators and the content providers -- the motion picture studios -- adopted CSS as direct licensees or by contracting through CSS licensees.

21. Each of the plaintiffs relied upon the security provided by CSS in manufacturing, protecting and distributing to the public copyrighted motion pictures in DVD format. Those motion pictures, may of which involved investments of tens and even hundreds of millions of dollars, were distributed on CSS-protected DVDs.

The Descrambling of CSS and the Creation and Proliferation of the "DeCSS" Utility

22. On information and belief, hackers in Europe were able to descramble the encryption on DVDs and create -- and post on the World Wide Web -- an unauthorized utility commonly referred to as "DeCSS," which allows motion pictures in DVD format to be decrypted and illegally accessed and copied.

23. Subsequently, defendant Eric Corley a/k/a Emmanuel Goldstein and/or defendant 2600 Enterprises posted DeCSS on his/its Internet Web site, www.2600.com/news/1999/1112-files. In addition, Corley and/or 2600 Enterprises has designed and incorporated in that site "hyper links" to DeCSS. Corley's amd/or 2600 Enterprises' site states that DeCSS is a "free DVD decoder" that allows "people to copy DVDs." Corley's and/or 2600 Enterprises' site also exhorts others ("as many of you as possible all throughout the world") to "take and mirror [the DeCSS] files. . . ."

Claim for Relief
(Violation of Provisions Governing Circumvention
of Copyright Protection Systems,
17 U.S.C. § 1201 et seq.)

24. Plaintiffs incorporate by this reference the allegations contained in paragraphs 1 through 25 [sic], inclusive.

25. The Copyright Act, Title 17 U.S.C. § 1201(a)(2), provides that:

[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

The Copyright Act, Title 17 U.S.C. § 1201(b) provides similar prohibitions against the manufacture, importation or provision of any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of cricumventing a technological measure that effectively protgects the rights of copyright owners.

26. The 2600 Defendants, and each of them, offers to the public, provides, or otherwise traffic in, DeCSS through his/its Internet website.

27. CSS is a technological measure that (a) effectively controls access to works protected by the Copyright Act, and (b) effectively protects rights of copyright owners to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyright works or portions thereof.

28. DeCSS (a) is primarily designed or produced for the purpose of circumventing the protection afforded by CSS, (b) has only limited commercially significant purpose or use other than to circumvent CSS or the protection afforded by CSS, and/or (c) is marketed by Defendants and/or others acting in concert with them with the knowledge of its use in circumventing CSS or the protection afforded by CSS.

29. By offering to the public, providing, or otherwise trafficking in DeCSS, the 2600 defendants, and each of them, have violated the provisions governing Circumvention of Copyright Protection Systems set forth in the Copyright Act, 17 U.S.C. §§ 1201 et seq.

30. Unless enjoined by this Court, the 2600 defendants' violations will continue. Plaintiffs' remedy at law is not adequate. Protection of Plaintiffs' rights must include an injunction.

Prayer for Relief

WHEREFORE, Plaintiffs pray for judgment against the 2600 defendants, and each of them, jointly and severally, as follows:

1. For a grant of preliminary and permanent injunctive relief against the 2600 defendants, their officers, directors, agents, servants, employees, subsidiaries, affiliates, assigns, licensees, distributees, attorneys and all other persons in active concert or privity or in participation with them, enjoining them from:

(a) posting on or linking to any Internet web site, or in any other way manufacturing, importing, offering to the public, providing, or otherwise trafficking in DeCSS, and

(b) posting on or linking to any Internet web site, or in any other way manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that:

(i) is primarily designed or produced for the purpose of circumventing, or circumventing the protection afforded by, CSS, or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof,

(ii) has only limited commercially significant purpose or use other than to circumvent, or to circumvent the protection afforded by, CSS, or any other technological measure adopted by the Plaintiffs' that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof, or

(iii) is marketed by Defendants and/or others acting in concert with them with the knowledge of its use in circumventing, or circumventing the protection afforded by, CSS, or any other technological measure adopted by Plaintiffs that effectively controls access to Plaintiffs' copyrighted works or effectively protects the Plaintiffs' rights to control whether an end user can reproduce, manufacture, adapt, publicly perform and/or distribute unauthorized copies of their copyrighted works or portions thereof.

2.  Certain terms used in this prayer for relief are defined as follows:

(a) "DVD" means digital versatile disc.

(b) "CSS" means the Contents Scramble System used to encrypt, scramble or otherwise protect the contents of certain DVDs from unauthorized access or copying.

(c) "DeCSS" means any computer program, file or other device that may be used to decrypt or unscramble the contents of DVDs that are protected, or otherwise to circumvent the protection afforded, by CSS and that permits the unauthorized access or copying of the contents or any portion thereof.

(d) A "hyperlink" means software instructions which, when executed, cause a signal to be sent to another location where data or material can be retrieved for viewing, copying or further transmission.

(e) "Linking" means provision by the defendants, at their respective websites, of hyperlinks to other websites which are offering to the public, providing, providing hyperlinks to, or othervvise trafficking in DeCSS or any technology, product, service, device, component, or part thereof described in paragraph 2(b).

3. For such other and further relief as the Court deems just and proper.

DATED: New York, New York
               April 4, 2000



   
                                                  PROSKAUER ROSE LLP

By: ______________________

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

- and -

Jon A. Baumgarten (pro hac vice admission
to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs


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