Roseann B. MacKechnie, Clerk of Court
United States Court of Appeals for the Second Circuit
40 Centre Street, Room 1702
New York, New York 10007
Re: Universal City Studios Inc. v. Corley, No. 00-9185 (2d Cir.)
Dear Ms. MacKechnie:
We represent the appellees (the "Studios") in the above-captioned matter. We write at the invitation of the Panel that heard the appeal on May 1 (Newman and Cabranes, C.J., and Thompson, D.J.) to address certain issues raised at oral argument and others contained in an Order dated May 8. Please submit this letter brief to the Panel for its consideration.
At oral argument, appellants ignored defendant Eric Corley's conduct and the facts found at trial, and attempted to shift the Court's attention from what Corley did (multiplying copies of DeCSS and offering them to the public in admitted violation of the law) to what a parade of hypothetical persons (from fifth graders to the parents of autistic children) might somehow, some day be impeded from doing with DVDs as a result of the DMCA or the injunction entered against Corley. Nothing in appellants' positions warrants reversing, vacating, or modifying the judgment entered below. We address first four issues raised at argument, and then turn to the questions identified in the May 8 Order.
I. CSS Provides Security Against - and DeCSS Facilitates - Infringing Copying.
Surprisingly, appellants contended on rebuttal that the CSS encryption technology is concerned solely with access and has nothing to do with protecting copyright owners from the risks of unauthorized, uncontrolled copying on the Internet. Judge Kaplan, however, expressly found that DeCSS, which circumvents the technological protection afforded by CSS, "is a free, effective and fast means of decrypting plaintiffs' DVDs and copying them to computer hard drives." (A2627.) The trial testimony was unanimous (from both sides) that DeCSS performs two functions: it decrypts an encrypted DVD movie file and then copies it to the user's computer hard drive or other storage device. (Tr. 245:11-248:5, 619:12-18; 821:21-822:8, 896:25-897:4). Under the CSS license, authorized DVD players must be designed only to decrypt, unscramble and play back the DVD movie content while preventing users from storing or transmitting that decrypted content and from making and transmitting decrypted digital copies of the copyrighted content. (Tr. 409:20-24; 505:4-6). The trial testimony focused extensively on how DeCSS circumvents CSS — a technological measure that provides security against making infringing copies — and thereby facilitates infringement, and Judge Kaplan found that "the application of DeCSS to copy and distribute motion pictures . . . threatens" the Studios with substantial harm. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 315 (S.D.N.Y. 2000).
II. Appellants' Reliance On The Audio Home Recording Act of 1992 ("AHRA") As A Purportedly "Less Restrictive Alternative" Than The DMCA Is Misplaced.
Appellants' argument that the Audio Home Recording Act compels a finding that the trafficking proscriptions are not narrowly tailored misunderstands the controlling legal standard and ignores the fact that the AHRA cannot serve as a model because it has no application whatever to computers or to computer-based copying.
The "least restrictive alternative" test that appellants invoke applies only to content-based laws. Under intermediate scrutiny, the requirement of narrow tailoring is satisfied "'so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994) (emphasis added, quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)); see City of Erie v. Paps A.M., 529 U.S. 277, 301 (1999) ("since this is a content-neutral restriction, least restrictive means analysis is not required."); Studio Br. 40-44. As Dean Sullivan has written,
Speaker exemptions from general laws are not compelled. I may not park my car in a non-parking zone just because I cover it with bumper stickers advocating various candidates . . . . The no-parking law is not aimed at my political slogans, but rather at my car. Government's benign purpose here is enough to immunize it from serious First Amendment review.
Kathleen Sullivan, Discrimination, Distribution and Free Speech, 37 Ariz. L Rev. 439, 443 (1995).
Appellants did not seriously contend that strict scrutiny is required, nor could they, and the AHRA is irrelevant under intermediate review. Courts undertaking intermediate review look to whether Congress's goals would be achieved less effectively absent the regulation, not to what else Congress might or could have done, much less to not-yet-implemented new technologies suggested as less restrictive alternatives by serial violators of existing conduct regulations. Studio Br. 40 (citing Turner II, 520 U.S. at 213-14). The First Amendment does not mandate, over a contrary legislative judgment, a right to distribute decryption devices that would enable every person in the nation (and millions more around the world) to make a complete, decrypted copy of pre-recorded DVDs, which would then be available for further copying or transmission over the Internet. See, e.g., Ward, 491 U.S. at 797 (citation omitted) (incidental restrictions on speech "are not invalid 'simply because there is some imaginable alternative that might be less burdensome on speech'"). To the contrary, Congress's effort to secure the rights of copyright holders, and thereby the public interest in having more copyrighted works available, is entitled to substantial deference: "Sound policy, as well as history, supports [the courts'] consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984); see also Turner, 512 U.S. at 665.
Appellants do not dispute Judge Kaplan's holding that the goals underlying the DMCA (protecting copyright's creation- and dissemination-inducing functions, deterring piracy, and complying with the WIPO treaties) are achieved more effectively with the trafficking proscriptions. 111 F. Supp. 2d at 331-33. The legislative history is replete with evidence supporting Congress's assessment that a law barring circumvention and trafficking in circumvention devices was necessary to guard against infringement effectively and to induce the broader dissemination of works in digital form to the public, and the record at trial supported those findings as well.
No case cited suggests that intermediate scrutiny, or even strict scrutiny, arms courts with the power to displace laws regulating conduct because of the theoretical availability of alternative, complex, less effective options that legislatures might devise. Even if that were the law, the AHRA would afford no basis for reversing the decision below. The AHRA is not an alternative approach adopted by Congress to address the problem addressed by the DMCA, but an outmoded solution for a different problem altogether.
The AHRA was enacted in 1992, well before Congress undertook to address the problem of instantaneous, widespread proliferation of infringing copies made possible through the Internet. It was compromise legislation (to settle a lawsuit that had prevented importation of digital audio tape players) proposed by the music industry and digital audio tape ("DAT") device manufacturers, which (a) imposed upon device manufacturers a technological mandate to adhere to a specified copy control system (the "Serial Copy Management System") for digital music works, and (b) imposed a royalty on manufacturers and importers of DAT recorders and tapes as some compensation to the copyright holders of those musical works for any loss of revenues occasioned by consumer copying. See generally Nimmer on Copyright, § 8B.01[C]. The AHRA expressly exempts computers from its definition of "digital audio recording devices" and was not designed, intended, or suited to regulate computers or copying by computer. Id., §8B.02[A][a][ii], at 8B-26 - 29 (2000) (discussing exclusion of computers from the AHRA's ambit); see generally RIAA v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999) and A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). As explained by a commentator:
Growing out of the consumer electronics market of the 1980's, [the AHRA] embodied an approach, as of its enactment in 1992, focusing on DAT recorders. Yet the failure of that technology to ever make much penetration into the consumer marketplace renders the AHRA's focus, in hindsight, misguided. By the time the 1990's ended, the Internet had become the primary battleground for copyright issues. Yet the AHRA's structure, whereby computers are excluded from its thrust, places the Internet essentially outside the statute's purview.
Nimmer, §8B.02[A][a], at 8B-29 (emphasis supplied). Thus, the computer exemption "bears every indication of relegating the AHRA largely to obscurity" (id.), and makes it wholly inappli cable to the problems Congress sought to redress in the DMCA.
Unlike the AHRA, the DMCA was enacted to address the risks to creators presented by the Internet, and to provide "the legal platform for launching the global digital on-line marketplace for copyrighted works." S. Rep. No. 105-190, at 2, 5 (1998) (Add-9, 12). As the United States correctly noted at argument, Congress's findings concerning the increasing risks of copyright infringement on a massive scale because of increasing Internet bandwidth, computer storage capacity, and network capabilities, and its acknowledgment of the need for increased protection in order to induce the wider release of copyrighted works in digital form, provide an overwhelming distinction between the DMCA and the AHRA. (Moreover, the AHRA has a prohibition on circumvention, 17 U.S.C. § 1002(c), and Corley's conduct would have violated that too.)
In sum, aimed at a different problem, inapplicable to computer copying (and therefore to an installed base of millions of computers that can be used for unlimited copying in the absence of the DMCA), and premised on an approach (mandating hardware manufacturers to incorporate particular technological measures) that Congress expressly rejected in the DMCA at the urging of the computer industry, the AHRA is irrelevant to the O'Brien-Ward-Turner narrow tailoring assessment undertaken by the district court and challenged on appeal, and in any event would advance the interests underlying the DMCA less effectively than the DMCA itself.
III. Appellants' Overbreadth Argument Ignores The Basis Upon Which The Injunction Against Their Linking Activities Was Sought And Entered.
Hiding appellant Corley behind the "Old Gray Lady's" skirts, his counsel warned that the injunction at issue somehow threatens journalism on new technology topics by The New York Times and other publications. That contention is baseless, and ignores the factual record on which the injunction was sought and entered.
The basis for the relief sought and imposed was that, once the Studios sought relief against Corley, his conduct — his trafficking in DeCSS, touting it as a way to obtain "free movies," and linking to newly-minted copies that were made at his pleading so as to continue his provision of DeCSS to the public — was an intentional, sustained distribution of an unlawful circumvention device, which Judge Kaplan found to be a deliberate effort to defeat the Court's already-issued preliminary injunction, thereby warranting further injunctive relief. See Studio Br. 10-12, 45-51; see also 111 F. Supp. 2d at 303, 313, 319, 325, and 341.
Federal courts have held consistently that such a record of abusive misconduct — the very opposite of a responsible effort to maintain a "safe distance" from previously-enjoined conduct that has been held violative of private rights — warrants appropriate injunctive relief, so as to ensure that ongoing violations of a plaintiffs' rights can be "prevented and restrained" consistent with the Court's remedial obligations. See Studio Br. 45-46 (citing cases). Given Judge Kaplan's factual findings, including that Corley "maintained the links to promote the dissemination of the program in an effort to defeat effective judicial relief" (111 F. Supp. 2d at 341), the effective relief to which the Studios were entitled under § 1203(b)(1) necessarily required an injunction against Corley's continued public distribution of DeCSS by his linking scheme (or by any other means).
On this record, the injunction is valid against Corley and threatens neither journalists nor journalism. Suffice it to say that the issue presented is the propriety of the injunction against Corley on a record which showed his abusive misconduct and admitted intent to provide DeCSS to the public in an act of "electronic civil disobedience" — not the lawfulness of linking at large. The Studios relied on such cases as United States v. Scott, 187 F.3d 282, 288-89 (2d Cir. 1999), see Studio Br. 46. There is a clear, dispositive difference between the conduct by which Corley "offered, provided . . . DeCSS, and continue[s] to do so to this day" (111 F. Supp. 2d at 325) and any reporting we have seen by The New York Times or its counterparts. Cf. 17 U.S.C § 1201(g) (among the factors to be considered in determining the availability of the encryption research exemption is "whether the information derived . . . was disseminated in a manner reasonably calculated to advance the state of knowledge of encryption technology, versus whether it was disseminated in a manner that facilitates infringement . . . ."). The DMCA makes, and the Studios and Judge Kaplan recognized, that distinction.
IV. The Purported Potential Impact on Use of Copyright-Expired Works Affords No Basis for Reversal.
Appellants suggested at argument that the DMCA could be used to obtain control over works in the public domain, but there was no evidence in the trial record to support any such claim. Corley has not been harmed by any purported inability to make use of any copyright- expired work and, for reasons previously addressed by the United States and the Studios, he cannot make an overbreadth challenge. See also Los Angeles Police Dep't v. United Reporting, 528 U.S. 32 (1999) (overbreadth challenge does not lie where party asserting it is complaining of impaired access to speech).
Even putting aside Corley's lack of standing to complain of hypothetical harms to third parties and the absence of any chilling effect, the unimpaired availability of all fair or non- infringing uses of such works except that small subset (if any) requiring perfect digital copies renders Congress's policy judgment unassailable. See Studio Br. 59-67. An incidental impact on speech affords no basis for invalidating a law aimed at conduct that is not content-based. More over, as both Judge Kaplan and the Register of Copyrights concluded, any adverse impact of the trafficking ban on fair or noninfringing uses to date is either "trivial" or non-existent. 111 F. Supp. 2d at 337 ("only to a trivial degree"); Recommendation of the Register of Copyrights, 65 Fed. Reg. 64568, Add-122 ("Thus far, no proponents of this argument . . . have come forward with any evidence of any substantial or concrete harm . . . The allegations of harm raised were generally hypothetical in nature"). The mechanism Congress provided in § 1201(a)(1)(C) for a renewed rulemaking every three years to assess whether adverse impacts on noninfringing uses have arisen or are likely makes appellants' "potential interference with noninfringing use of copyright-expired works" argument a particularly poor basis for invalidating either the DMCA or the injunction.
Responses to the Questions in the May 8 Order.
1. Are the anti-trafficking provisions of the DMCA content-neutral? See 111 F. Supp. 2d 294, 328-29 (S.D.N.Y. 2000)?
Yes, for the reasons given at Studio Br. 22-32. Like measures barring the provision of gambling devices, trafficking in satellite theft devices, and trafficking in cable signal theft devices, the trafficking provisions are not content-based, since they were adopted because of what decryption devices (which may be hardware or software) do, not because "of disagreement with the message" they convey. See also Hill v. Colorado, 530 U.S. 703, 719-20 (2000) (law regulating speech near medical facilities is content-neutral); United States v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998) (same).
Guns may be used to make political statements, but laws regulating gun distribution are not enacted because of disagreement with those messages, and those laws are therefore not subject to strict scrutiny, even when applied to a Sirhan Sirhan. Draft cards carried information, but the law prohibiting draft card destruction was not aimed at any messages by draft card destroyers, and so was subject only to intermediate scrutiny despite its incidental impact on O'Brien's speech. Similarly, the circumvention device trafficking proscriptions, like comparable proscriptions against distributing devices enabling theft of satellite signals or cable signals, or laws against posting computer viruses to web sites (from which they could be widely copied and disseminated), or laws against the unauthorized distribution of computer passwords or regulating defective or injury-causing software, are content-neutral. See Studio Br. 22-32; see also Brief for the RIAA et al., 18-24; Hill v. Colorado, 530 U.S. 703, 719-25 (2000).
The content-neutrality of the trafficking proscriptions is strongly supported by the Supreme Court's recent conclusion that laws barring disclosing the contents of illegally intercepted communications are content-neutral laws of general applicability. Bartnicki v. Vopper, 2001 U. S. Lexis 3815, ** 20-21 (U.S. May 21, 2001) (prohibition on disclosing wiretapped communications is content-neutral because the law is "justified without reference to the content of the regulated speech" and its purpose was "to protect the privacy of . . . communications"). Just as "protecting the privacy of communications" is content-neutral, so too is protecting the security of copyrighted works from infringement.
2. Does deCSS have both speech and non-speech elements?
No. See Studio Br. 19-22; see also U.S. Br. Point IA; RIAA Br. 15-24. DeCSS is a device (configured as a program, although it could as easily have been configured as a physical machine, i.e., a "black box") that accomplishes a mechanical task, namely descrambling and decrypting an encrypted, scrambled DVD and copying its content to a hard drive. It is no more "speech" than a key to a library or museum (or a crowbar that could force open their doors) is "speech."
DeCSS is not information within the meaning of the First Amendment, much less a message; it is, in the government's apt phrase, a "digital crowbar," a technical device for circumventing protection that copyright owners have installed on copies of their copyrighted works. Congress has made it unlawful to break that protection or to distribute the tools, whether hardware or software, that would enable hackers and others to do so. As a functional device whose only "purpose or use" was "to circumvent CSS" (111 F. Supp. 2d at 319), its public distribution can be proscribed, as similar computer programs or devices were held permissibly proscribed in United States v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990) (computer program used for gambling),Cable/Home Commun. Corp. v. Network Prods., Inc., 902 F.2d 829 (11th Cir. 1990), and California Satellite Sys. v. Seimon, 768 F.2d 1364 (9th Cir. 1985).
The reasoning that underlies the holding in CFTC v. Vartuli, 228 F.3d 94, 111 (2d Cir. 2000), that the instructions to investors issued by a computer program called "Recurrence" were not "'speech' of the sort thus protected" by the First Amendment, applies a fortiori to DeCSS:
Language was involved in conveying the Recurrence commands to traders, to be sure. But as Professor Kent Greenawalt has pointed out, "Language serves a variety of functions, only some of which are covered by the special reasons for freedom of speech." . . . None of the reasons for which speech is thought to require protection above and beyond that accorded to non-speech behavior — the pursuit of truth, the accommodation among interests, the achievement of social stability, the exposure and deterrence of abuses of authority, personal autonomy and personality development, or the functioning of a democracy . . . is implicated by the communications here in issue, and none counsels in favor of treating the Recurrence communications at issue as protected "speech."
The case against treating DeCSS as "speech" for First Amendment purposes is considerably stronger here than in Vartuli. Running the program held to be "not speech" in Vartuli resulted in "specific buy or sell recommendations" which were provided to the user; nothing actually happened, in the real world, unless the user then took the advice produced and called his broker. Here, by contrast, Corley was enjoined from distributing a program which, when run, accomplishes precisely and immediately the result Congress prohibited: DeCSS produces not recommendations but an unlawful result (decryption and copying) that violates two provisions of copyright law, 17 U.S.C. §§ 501 and 1201(a)(1). When run, DeCSS delivers instructions to a computer's central processing unit that immediately and directly accomplish the very "breaking and entering" that Congress made unlawful. DeCSS is therefore "situation-altering," in Professor Greenawalt's useful formulation, and accordingly outside the scope of the free speech principle altogether — like blackmail, or criminal solicitation, or forgery devices, or ATM access devices, or wiretapping equipment, all of which are regulable as conduct. Vartuli, supra; see also Greenawalt, Speech, Crime, and the Uses of Language, at 57 (Oxford U. Press, 1989); RIAA Br. 15-18. As a functional, situation-altering computer program, which operates a machine to strip technological protection applied by the copyright owner, DeCSS is subject to regulation. Studio Br. 19-22; see also U.S. Br. Point IA; RIAA Br. 15-24.
Even if DeCSS has "speech elements" at all, then, as Judge Kaplan found, they are very slight, and hugely overshadowed by its functional aspects. See 111 F. Supp. 2d at 328-33; Studio Br. 20-28.
Strict scrutiny for the trafficking proscriptions is unwarranted, however, regardless of whether DeCSS has both speech elements or not. The purpose and character of the trafficking proscriptions dictate no more than intermediate scrutiny for Corley's challenge to enforcement of the trafficking proscriptions regardless of whether DeCSS has "speech elements." (The only issue that turns on whether the conduct regulated, public distribution of DeCSS, has "speech elements" is whether even intermediate review applies. See Cohen v. Cowles Media Co., 501 U.S. 663 (1991); Studio Br. 19-22.)
3. Does the dissemination of DeCSS have both speech and non-speech elements?
No. Unlike Corley's criticism of the Studios, the DMCA, and Judge Kaplan, which is plainly "speech" (which the DMCA does not reach and the injunction does not prohibit), the provision of decryption devices to the public, including the provision of DeCSS, is the unlawful provision of a device, a "digital crowbar," not speech within the meaning of the First Amendment, for the reasons set out in the answer to question 2 above. See also U.S. Br. 15-23; Studio Br. 19-22.
Even if the answer were "yes", moreover, that would only occasion intermediate scrutiny. Studio Br. Point I.
4. Does the use of DeCSS to decrypt an encrypted DVD have both speech and non-speech elements?
This question is not presented on this appeal because Corley has not decrypted any DVDs, or sought to. Studio Br. 59-63; U.S. Br. Point III. But the answer is "no": the use of DeCSS to decrypt an encrypted DVD has no "speech elements," just as breaking into a museum or library — or using a computer to break an electronic lock on a library door — cannot properly be said to have "speech elements."
Moreover, when Congress enacts a measure aimed at deterring copyright infringement, analysis of whether what it has regulated or proscribed has "speech elements" is simply not a pertinent or useful inquiry. The "use of a copying machine to infringe a copyright" might perhaps be said to have "speech elements," but the constitutionality of the infringement cause of action, 17 U.S.C. § 501, on its face or as applied, does not depend on whether or not it does. Importation of books from abroad might be said to have "speech elements," but the constitutionality of the manufacturing clause of the 1909 Copyright Act did not depend on asking whether "speech elements" were present. Authors League v. Oman, 790 F.2d 220 (2d Cir. 1986). "Speech elements" are presumably always present when further copying or distribution of an infringing work is enjoined, but the constitutionality of injunctive relief to protect copyright holders from piracy has long been settled categorically, without the case-by-case application of strict or intermediate scrutiny. See the cases cited in the Brief for Law Professors Rodney Smolla et al., pp. 24-26; see also New York Times Co. v. United States, 403 U.S. 713, 726 n. (1971) (Brennan, J., concurring) (general availability of injunctions in copyright cases does not conflict with the rule against prior restraints, since copyright injunctions "protect only the form of expression and not the ideas expressed").
5. Does the existence of non-speech elements, along with speech elements, in an activity sought to be regulated alone justify intermediate level scrutiny?
Whether any First Amendment review is required at all depends on whether "it was conduct with a significant expressive element that drew the legal remedy in the first place." Arcara v. Cloud Books, Inc., 478 U.S. 697, 704-06 (1986); Cohen v. Cowles Media Co., 501 U.S. 663, 669- 70 (1991); Studio Br. Point I. If speech interests are implicated, then whether strict scrutiny is required depends on whether the challenged regulations were enacted because of disagreement with speech or concern over its communicative impact — that is, on whether the law is justified by the content of the regulated speech — regardless of whether those regulations as applied in the particular case have some impact on speech. See Point II, supra at page 3; Studio Br. Point I; United States v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998) ("It would be wrong to say that those activities [boycotts, political assassination, nude dancing, and other kinds of conduct] are not or cannot be forms of expression. But the fact that they have expressive aspects does not exempt them from governmental prohibition").
Accordingly, inquiry concerning what level of scrutiny to apply depends on the activity that Congress was aiming at and sought to regulate, not the activity of the defendant in a given case to which the regulation happens to have been applied. The existence of "speech elements" in the sleeping on the Mall at issue in Clark v. CCNV, 468 U.S. 288 (1984), or in O'Brien's burning of his draft card, or in the operation of cable television systems, see Turner I, supra, or in the publication of identifying information which was held actionable in Cohen v. Cowles, did not result in strict scrutiny (or in even intermediate scrutiny, in Cohen). To the contrary, any "speech elements" served only to trigger intermediate scrutiny for laws that, because they were not content- based, otherwise would not have been subject to any at all.
6. If DeCSS or its dissemination or its use to decrypt has both speech and non-speech elements and is not subject to intermediate level scrutiny simply because of the non-speech elements, is intermediate level scrutiny appropriate because of the close causal link between dissemination of DeCSS and its improper use? See 111 F. Supp. 2d at 331-32.
If the question is meant to suggest that strict scrutiny might be required because of the presence of speech elements in DeCSS or in its use or dissemination, we respectfully disagree. See Studio Br. Point I.
We agree, however, that the close causal link between dissemination of circumvention de vices and infringement led dozens of nations to promulgate the WIPO copyright treaties and Congress to enact the DMCA, and supports the conclusion that the DMCA is a proper exercise of Congress's power under the Copyright Clause to secure authors' exclusive rights. The Constitution empowers Congress to secure exclusive rights to authors, and both the infringement and the trafficking causes of action codified in Title 17 are proper exercises of that power. Moreover, when Congress determines that a course of conduct, even one carried out by words, is harmful, and prohibits it on that basis through non-content based means, the First Amendment generally does not prohibit the regulation. RIAA Br. 15-24; U.S. Br. 19-23; Studio Br. 34-37. And that general rule has strengthened application for statutes enacted to secure exclusive rights for copy right holders. Studio Br. 34-35; RIAA Br. 16-18; and page 17, supra.
7. If the District Court is correct that the dissemination of DeCSS "carries very substantial risk of imminent harm," 111 F. Supp. 2d at 332, does that risk alone justify the injunction? In other words, does that risk satisfy the requirements for regulating speech under Brandenburg v. Ohio, 395 U.S. 444 (1969), thereby rendering unnecessary an inquiry as to whether non-speech elements of DeCSS or its dissemination or its use (if such exists) may be regulated under United States v. O'Brien, 391 U.S. 367 (1968)?
The Brandenburg test measures only whether advocacy of or incitement to unlawful action can be punished consistent with the First Amendment; it does not apply to the provision to the public of unlawful circumvention devices or components, or indeed to any conduct as distinguished from incitement to or advocacy of unlawful action. RIAA Br. 24 n. 12; Smolla Br. 8.
The Brandenburg test was not applied in any of the cases evaluating conduct regulations incidentally impacting speech, such as O'Brien, or Clark v. CCNV, or United States v. Albertini, or Hill v. Colorado, or Madsen, or United States v. Scott, or Mendelsohn, or dozens of other cases previously cited by the Studios, their amici, and the United States, upholding the constitutionality of the application of content-neutral statutes to allegedly expressive conduct.
If Congress had enacted a statute barring advocacy of circumvention, or if Corley had been enjoined from advocating circumvention, then Brandenburg would be pertinent. But the injunction against Corley does not extend to his advocacy, which has been and continues to be extensive. It is aimed instead, with laser-like precision, at his unlawful provision of DeCSS to the public; only that is restrained. Studio Br. 40-42; see also Cable/Home, 902 F.2d at 849 (noting that injunction was limited to unlawful devices); California Satellite Sys., 767 F.2d at 1368 (same). Corley has not been enjoined from asking others to "mirror these [DeCSS] files"; he was enjoined, once they did so, from continuing to provide to the public the copies created through his purposeful and intentional linking scheme, because the DMCA prohibits that trafficking in circumvention devices. If Corley's challenge to the injunction is subject to First Amendment review at all, therefore, it is subject not to Brandenburg but to intermediate review, or, at most, to the slightly adjusted review for at least some injunctions applied in Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 764 (1994). Studio Br. 43 n. 29 (arguing that because the injunction entered against Corley merely applies the statutory prohibition essentially in haec verba and involves no further judicial interstitial rulemaking, the usual intermediate review standard applies).
8. Are the three criteria identified at 111 F. Supp. 2d at 333 the correct criteria for determining the validity, under intermediate level scrutiny, of the use of DeCSS that has been enjoined?
The "three criteria" identified in the question are not criteria for any "test" but simply three true facts that explain Judge Kaplan's holding. They do not purport to be criteria necessary for application of conduct regulation to computer programs, although they happen to be an accurate description of the limited conduct regulated by the DMCA and why it was enacted. (We suspect that the sentence of the district court's opinion cited was added in an attempt to further clarify that the decision against Corley was not deciding the constitutionality of every conceivable regulation of every conceivable computer program — a reminder that should not even have been necessary, except that Corley and some of his allies and supporters have consistently, for reasons that are not clear, over-read the DMCA and the injunctions entered by the district court.)
In addition, it is worth noting that the injunction did not enjoin "use" of DeCSS; Corley never used or threatened to use it. The injunction enjoins defendants only from offering to the public and providing DeCSS, in light of their past and threatened trafficking violations.
9. If not, what modifications or supplementation would be required to conform to First Amendment requirements?
None. "First Amendment requirements" applicable to this case are those marked out by the intermediate review cases cited earlier or, if applicable to the injunction, Madsen. There is no basis for adding "modifications or supplementation" here, any more than the courts in such cases as Mendelsohn, California Satellite, or Cable Home Systems added "modifications or supplementation" to the applicable standard of review.
10. Are the three criteria identified at 111 F. Supp. 2d 341 and the "clear and convincing evidence" standard the correct criteria and the correct standard of proof for testing the validity of the injunction's prohibition of posting on the defendant's website and of linking?
The Studios' position on this point is set out in Point III supra, at pages 8-10.
This Court's consideration of the injunction against an anti-abortion protestor in United States v. Scott, 187 F.3d 282 (2d Cir. 1999), did not attempt to devise a new test for when the pro visions of the injunction might generally be imposed against others in the first instance; instead, the Court reviewed the injunction crafted by the district court by considering all the facts and circumstances, including the defendant's own repeated violation of private rights, and measuring it under the test of Madsen v. Women's Health Center, 512 U.S. 753. Here too, the validity of the injunction depends on the facts and circumstances and the intermediate scrutiny applied in Hill (or in Madsen, see Studio Br. 43 n. 29). The injunction easily meets that test. Studio Br. Points IIB and IIC, and pp. 8-10 supra.
A further effort to capture in a "test" all the hypothetical facts, circumstances, and considerations that might arise in future cases is premature, unnecessary, and, given the speed of technological change, unwise. See Denver Area, 518 U.S. at 740-43, 748; see also Ashwander v. TVA, 297 U.S. 727 (1938).
We are confident that the injunction is valid for the reasons given by Judge Kaplan (and advanced in the Studios' submissions), and that the factors he identified are highly relevant. We are less certain, given that this is the first case presenting these precise issues and that there may be other fact-patterns not yet evident, that the three-factor test identified in dicta fully accounts for all of the relevant factors and issues that may arise in the future. In our view, therefore, a decision upholding the injunction should avoid conclusively framing a test for hypothetical cases not presented here, and, instead, should stress (1) that the statutory provision bars offering circumvention devices to the public, which the district court properly found Corley was doing, not informational reporting or advocacy, and (2) that Corley's proven record of committing "electronic civil disobedience" by a sustained, concerted, protracted, intentional provision of DeCSS to the public warranted injunctive relief, just as the defendant's conduct warranted the injunction upheld in United States v. Scott, supra.
11. If not, what modification or supplementation would be required to conform to First Amendment requirements?
None. See Point III and the response to question 10, supra.
Charles S. Sims
Counsel for Appellees