May 17, 2002
United States Court of Appeals for the Second Circuit
SYNOPSIS OF JUDGE NEWMAN IN UNIVERSAL CITY STUDIOS V. CORLEY
The original opinion by Judge Newman for a unanimous 3-judge panel rejected every constitutional and fair use argument defendants made. Highlights:
CSS "is like a lock on a homeowner's door, a combination of a safe, or a security device attached to a store's products." The DMCA bars decryption code "because of its capacity to instruct a computer to decrypt CSS. That functional capability is not speech within the meaning of the First Amendment." p. 56.
The DMCA is not subject to demanding First Amendment review because it is "content-neutral, just as would be a restriction on trafficking in skeleton keys . . . even though some of the keys happened to bear a slogan or other legend that qualified as a speech component." p. 52, 56.
The Second Circuit upheld the injunction against Corley's provision of DeCSS by linking. "The injunction's linking prohibition . . . validly regulates the Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs." p. 63-64.
Congress has the authority to craft new laws that respond to new possibilities of harm. Defendants and their supporters consistently ignored "the reality of the functional capacity of decryption computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted materials by anyone anywhere in the world." p. 65-66.
The Court rejected the "extravagant" claim that the DMCA "eliminates fair use," and held that the application of the DMCA to Corley did not violate his First Amendment or fair use rights. p. 66-70.
Preventing hackers from making perfect digital copies "provides no basis for a claim of unconstitutional limitation of fair use." p. 70-71.
"Copyright infringers who want to acquire copyright material (for personal use or resale) without paying for it" are properly characterized as "thieves". p. 7
The Court recognized the global misuse problem with Internet infringement. p. 53 ("potential for instantaneous worldwide distribution of the copied material"), 63- 64 (the Internet can "facilitate instantaneous unauthorized access to copyrighted materials by anyone anywhere in the world."), 65 ("instantaneous worldwide distribution before any preventative measures can be effectively taken.")
The Court rejected the central premise of the defendants, noting "that the Supreme Court has never held that fair use is Constitutionally required." p. 67.
SYNOPSIS OF SECOND CIRCUIT OPINION IN UNIVERSAL CITY STUDIOS V. CORLEY
Affirmed Judge Kaplan's opinion in all relevant respects
Specific holdings:
1) Appellants' statutory arguments were all rejected:
a
Provision that nothing in the statute will affect rights, remedies, limitations or defenses to copyright infringement liability, including fair use, simply clarifies that DMCA targets circumvention, not infringement;
b
Appellants' argument that DVD buyers have "authority of the copyright owner" to view the DVD was resoundingly rejected because Appellants offered no evidence that studios authorized DVD buyers to circumvent encryption technology to support use on multiple platforms
2) Appellants’ First Amendment challenges were rejected on the grounds Judge Kaplan had relied on:
a
Computer code has both speech and non-speech elements, but the scope of First Amendment protection for code depends on whether the restriction at issue is imposed because of the content of the speech elements;
b
DMCA's anti-trafficking provisions are content-neutral, because they are aimed at the functionality of the code, not its ideas. The DMCA easily passes intermediate First Amendment review because government's interest in preventing unauthorized access to encrypted copyrighted works "is unquestionably substantial," and the regulation of DeCSS by Judge Kaplan's posting injunction served that interest;
c
Court also held that Judge Kaplan applied the right test for a content-neutral regulation to Corley's linking scheme, and agreed that the linking injunction served the same important governmental interest.
3) Appellants' fair use arguments were rejected:
Court resoundingly rejected Appellants' "extravagant claim" that the DMCA unconstitutionally eliminated fair use on three grounds:
i
Appellants never claimed to be making fair use of copyrighted materials;
ii
Appellants presented no evidence at trial concerning the impact of the DMCA's anti-trafficking provisions on prospective fair users;
iii
Appellants provided no support for the premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format.
