Motion Picture Association of America

A.	The DMCA Is a Generally Applicable Regulation of Conduct, Not Speech .
	As the Supreme Court repeatedly has held since United States v. O'Brien, 391 U.S. 367, 377 (1968), the enforcement of a law aimed at conduct is generally subjected, at most, to intermediate scrutiny. Such laws "pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue." Turner I, 512 U.S. at 642. "The distinction between regulating speech and regulating conduct that has expressive components is fundamental," this Court held in United States v. Weslin , 156 F.3d 292, 297 (2d Cir. 1998), cert. denied , 525 U.S. 1071 (1999) (citations omitted): It is why government can validly prohibit a range of activities ranging from secondary boycotts . . . through public nudity . . . to political assassinations . . . It would be wrong to say that those activities are not or cannot be forms of expression. But the fact that they have expressive aspects does not exempt them from governmental prohibition. Intermediate scrutiny does not presume that the speech at issue is of lesser value, or less than "fully protected." To the contrary, courts apply intermediate scrutiny on the assumption (or determination) that the speech at issue is fully protected. The Court in O'Brien assumed that "the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment," id. at 376, but held, nevertheless, that intermediate scrutiny was appropriate because "the law punished him for the 'noncommunicative impact of his conduct, and for nothing else.'" See also Albertini, supra; City of Erie v. Pap's A.M., 529 U.S. 277, 291 (2000) (plurality opinion) (quoting O'Brien, 391 U.S. at 382). Distilled to its essence, Corley's argument for strict scrutiny stems from his contention that all computer software is "speech" deserving of the highest order of First Amendment protection, regardless of the character of the statute regulating or even incidentally impacting it. But even assuming arguendo that Corley's provision of DeCSS has a "significant expressive element" because it is a software tool or was "published" on a website, no more than intermediate review is required because application of the DMCA in this case involves simply the enforcement of a law regulating conduct, and a defense by a party that his expression has been thereby infringed. See, e.g., City of Erie, supra; Albertini, supra; Clark, supra. The DMCA's trafficking proscriptions are generally applicable conduct regulations and reflect Congress's concern with conduct, not speech. They do not set out to regulate speech, and a fortiori do not single out particular categories of speech or viewpoint. Contrary to the assumption made by Corley and his amici - who contend without authority or justification that the trafficking proscriptions are subject to strict scrutiny - the trafficking proscriptions are conduct regulations, like the statutes upheld in O'Brien, Albertini, CCNV, and City of Erie, and are significantly less problematic than the statute at issue in Turner I and Turner II, which was a direct regulation of the media, yet, nonetheless, was subjected only to intermediate review because it was justified by reasons unrelated to the communicative impact of the speech affected. See Turner I, 512 U.S. at 642. Unlike the statutes challenged in the cases on which Corley and his amici rely, which drew strict scrutiny because they directly prohibited or restricted "communications" or "disclosures" or other speech, the DMCA's trafficking proscriptions are aimed at "products" and "devices" that circumvent technological measures protecting the Studio's digital copyrighted works. Although framed with sufficient generality to encompass such devices whether embodied in hardware or software, the statutory text restricts only the conduct of publicly distributing tools that accomplish the circumvention that Congress sought to deter. In comparable circumstances, courts have upheld anti-trafficking statutes like 18 U.S.C. § 2512, which bars the distribution of "wire, oral or electronic communication intercepting devices," even though such devices arguably may have lawful uses that may further speech interests. See, e.g., United States v. Spy Factory, 951 F. Supp. 450, 474-75 (S.D.N.Y. 1997) (Sotomayor, J.); Mendelsohn, 896 F.2d at 1185-86. The DMCA's legislative history confirms that Congress sought to regulate conduct, the provision of decryption devices, using the express analogy of laws barring the provision of burglary tools. See, e.g., S. Rep. No. 105-190, at 11 (1998) (Add-18). Congress's purpose, revealed with indisputable clarity, was to facilitate the wider distribution of creative speech, not to eliminate or reduce harm from particular viewpoints, messages, or ideas. The trafficking proscriptions were enacted to comply with the nation's obligation, under the WIPO Copyright Treaties, to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights," and thereby 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). Concerned that copyright owners were hesitating "to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy" (id. at 8) (Add-15), Congress sought (id. at 11) (Add-18) to encourage technological solutions, in general, by enforcing private parties' use of technological protection measures with legal sanctions for . . . producing and distributing products or providing services that are aimed at circumventing technological protection measures that effectively protect copyrighted works. For example, if unauthorized access to a copyrighted work is effectively prevented through use of a password, it would be a violation of this section to defeat or bypass the password and to make the means to do so, as long as the primary purpose of the means was to perform this kind of act. This is roughly analogous to making it illegal to break into a house using a tool, the primary purpose of which is to break into houses. Legislation prohibiting circumvention devices is not unprecedented. The Copyright Act in section 1002(c) already protects sound recordings and musical works by prohibiting devices which circumvent any program or circuit that implements a serial copy management system. . . . The Communications Act in section 605(e)(4) prohibits devices that are 'primarily of assistance in the unauthorized decryption of satellite programming . . . .' Corley's attack on the trafficking proscriptions as a violation of free speech is perverse, because the DMCA was enacted to increase the amount and variety of digital speech available to the public, not to suppress speech or speakers. Even assuming arguendo that any speech interests of Corley are implicated at all, "[w]here constitutionally protected interests lie on both sides of the legal equation[,] . . . there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words 'strict scrutiny.'" Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring); see also, e.g., Turner I, 512 U.S. at 647 (even where statute assisted some speakers at expense of other speakers, only intermediate scrutiny was warranted because the statutory purpose was to "guarantee the survival of a medium that has become a vital part of the Nation's communication system").
B	The DMCA’s Trafficking Proscriptions Are Not Content-Based and Do Not Single Out Speech or the Media for Differential Treatment .
	The trafficking proscriptions on conduct are not content- or viewpoint-based, and leave Corley and his supporters entirely free to criticize the DMCA, Congress, the judiciary, or Hollywood. Like the law barring newspapers' publication of discriminatory help-wanted ads upheld in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 388 (1973), or laws barring breaking and entering into bookstores or libraries without permission, their justification lies in the "noncommunicative impact" of the regulated activity. O'Brien, 391 U.S. at 382. The trafficking proscriptions further legitimate and substantial interests in treaty compliance and preserving the incentives created by copyright protection to create and disseminate original works. Any burden on the exchange of ideas and information is incidental to, and a necessary byproduct of, the government's pursuit of "a legitimate regulatory goal" unrelated to the suppression of speech or the content of the speaker's message. Turner I, 512 U.S. at 641. "[T]he principal inquiry in determining content-neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." Turner I, 512 U.S. at 642 (internal quotation marks and citation omitted). The "purpose, or justification" of the law is, thus, the touchstone in ascertaining content neutrality. Id. "Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech." Ward, 491 U.S. at 791. The text and history of the DMCA's trafficking proscriptions do not single out a particular message, speaker, subject, or viewpoint for disfavored treatment, nor even single out speech. In contrast to the statute struck down in United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1885 (2000), which singled out particular content and particular speakers, the DMCA's trafficking proscriptions apply regardless of the content, subject matter, or identity of speakers, and can be used to protect any film, any book, or any musical recording. Far from reflecting any effort to "suppress, disadvantage, or impose differential burdens upon speech because of its content," Turner I, 512 U.S. at 642, they reflect a legislative judgment that all copyright owners should be able to protect their digital works from virtually instantaneous, unauthorized worldwide dissemination in an age when technological advances diminish the deterrent effect and remedial efficacy of the infringement cause of action. The restrictions are thus "justified without reference to the content" of speech. Ward, 491 U.S. at 791; see also Hill v. Colorado, supra; United States v. Weslin, supra. Corley's contention (Br. 19) that § 1201(a)(2) "plainly categorizes banned 'technologies' including computer programs, based upon their subject matter and ideas" is frivolous. The DMCA bars trafficking in circumvention devices (regardless of how configured) because of what they do and are suited to do, not because of their ideas; indeed, like the "black boxes," "passwords," and keys which Congress envisioned, decryption devices express no "ideas." Public provision of decryption tools is actionable regardless of purpose, just as legislatures have made it unlawful, or could, to publicly distribute wiretapping tools, burglar tools, master keys to new vehicle fleets, and combinations to identified bank vaults or safes. Even if application of the statute, on occasion, may prevent persons, including the news media, from providing specific strings of numbers or software devices to the public in particular instances, that is simply a consequence of the fact that "keys" to unlock encrypted copyrighted works can be embodied not only in hardware but in software as well, and that Congress has prohibited their distribution in either form. Cf. Pittsburgh Press, supra. "[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." Cohen, 501 U.S. at 669. Cohen's holding that the First Amendment did not bar an anonymous source's claim for damages flowing from breach of a newspaper's promise of confidentiality demonstrates that strict scrutiny does not apply even when, in particular cases, generally applicable laws attach liability to the public disclosure of truthful, newsworthy information. Id. at 668-72; see also Konigsberg v. State Bar, 366 U.S. 36, 50-51 (1961). Cohen also reflects the broader principle that "the comprehensiveness of [a] statute is a virtue, not a vice, because it is evidence against there being a discriminatory governmental motive." Hill, 120 S. Ct. at 2497; cf. Turner I, 512 U.S. at 661 ("broad based" regulations "do not pose the same dangers of suppression and manipulation that [are] posed by . . . more narrowly targeted regulations [aimed at particular speakers]"); Cincinnati v. Discovery Network Inc., 507 U.S. 410, 424-26 (1993). That reasoning is equally applicable here, on both sides of the DMCA: it protects copyright owners generally and prohibits public distribution of circumvention devices regardless of how or by whom it might be effected, and is not confined to hackers, the media or to anti-Hollywood websites. That two-fold generality confirms that Congress was motivated not by hostility toward the dissemination of information generally or a particular category of information, but instead by the "noncommunicative impact," O'Brien, 391 U.S. at 382, of the public distribution of circumvention tools.
C	Corley’s Remaining Arguments for Strict Scrutiny Are Meritless .
	Corley's argument that strict scrutiny is required by the line of cases culminating in Florida Star v. B.J.F., 491 U.S. 524, 533 (1989), reversing criminal punishment of or damage awards against the press for publishing "truthful information about a matter of public significance," is baseless. First, unlike the DMCA's trafficking proscriptions, the statutes involved in those cases were content-based and squarely aimed at speech. That difference is dispositive: the Supreme Court squarely has held that a generally applicable law that does not single out expression is not governed by Florida Star even when in a particular case it is applied to a purported media defendant and sanctions the disclosure of truthful information about a matter of public significance. Cohen, 501 U.S. at 668-69. Second, even ignoring (as the cases do not) the character of the regulation and focusing instead on the consequence of its application, DeCSS is not "truthful information," much less "truthful information about a matter of public significance," but a piece of functional software, accord Mendelsohn, 896 F.2d at 1185, whose sole purpose is to do what Congress has rendered unlawful - namely, to decrypt without authorization DVDs that have been encrypted with CSS to protect the Studios' copyrighted films from piracy. Corley was not sued for reporting that DeCSS had been developed and that it decrypts DVDs; he was sued for providing to the public on a sustained and continuous basis, in violation of the DMCA, the actual decryption device whose distribution Congress prohibited. The DMCA does not target disclosure of information, but the distribution of unlawful circumvention devices. The case is therefore governed not by Florida Star but rather by the rule underlying Pittsburgh Press, which upheld the constitutionality of an order enforcing a law prohibiting employers from publishing, or any other person from aiding the publication of, any "notice or advertisement relating to 'employment' or membership which indicates any discrimination because of . . . sex." Rejecting the newspaper's First Amendment challenge, the Supreme Court held that "[t]he present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication . . . . Moreover, the order is clear and sweeps no more broadly than necessary . . . ." 413 U.S. at 390 (citations omitted). As Pittsburgh Press makes plain, the First Amendment does not bar the proscription of speech which is itself unlawful conduct that Congress may prohibit. See also Jews for Jesus, Inc. v. Jewish Community Relations Council, Inc., 968 F.2d 286, 295-96 (2d Cir. 1992) (citing various laws that "can be violated by speech or other expressive conduct" without First Amendment difficulty); Mendelsohn, 896 F.2d at 1185-86. Corley's reliance on Florida Star also ignores the well-settled rule that the First Amendment does not prohibit the enforcement of laws protecting intellectual property - even against a media defendant. See Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539, 555-60 (1985); Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (rejecting First Amendment challenge to damage award against broadcasting company that violated plaintiff's rights of publicity); San Francisco Arts & Athletics, supra; Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 849 (11th Cir. 1990). To hold that the DMCA's trafficking proscriptions cannot be applied to software devices distributed over the Internet because any form of software is "truthful information" would turn First Amendment jurisprudence on its head, and eviscerate the conduct-targeted trafficking proscriptions. The trafficking proscriptions are no more subject to strict scrutiny than the analogous laws, some of which were expressly cited by Congress as models for the DMCA, prohibiting the manufacture, distribution and sale of cable and satellite television "descramblers," which also defeat access control systems. See, e.g., 47 U.S.C. § 553(a)(2) (2000), 47 U.S.C. § 605(e)(4) (2000), and 18 U.S.C. § 2512 (2000). See, e.g., Cable/Home Communication Corp., 902 F.2d at 850 (promotion of statutorily-prohibited "descrambling devices" for subscription cable television programming, and sale of pirated computer chips to compromise the encryption of plaintiffs' transmissions, were not protected by the First Amendment; because defendants' "speech" "not only violated the copyright and communications laws, but also encouraged third parties to do so, . . . defendants-appellants have no protection within the First Amendment for their unlawful expression"); California Satellite Sys. v. Seimon, 767 F.2d 1364, 1367-68 (9th Cir. 1985) (no First Amendment right to pirate scrambled satellite broadcast signals); Spy Factory, supra. Corley's argument that there is no First Amendment justification for downgrading the protection for "functional expression" (Br. 33-40) misstates what Judge Kaplan did and attempts to raise an issue not decided below or at issue here. Judge Kaplan did not "create a new category of lesser protected speech" (Br. 33) or hold that DeCSS was "unworthy of full First Amendment protection because DeCSS is written in a computer language rather than the English language (or mathematics or iambic pentameter) allowing it to 'function'" (Br. 33). To the contrary, he agreed with Corley that "DeCSS is expressive" (Universal at 328), but concluded that because the trafficking proscriptions are aimed at conduct, and are not content-based, only intermediate review is applicable. Universal at 329-30. The decision to apply intermediate scrutiny always reflects a decision (or assumption) that there is some impact on "speech," and presents the question whether that impact is nonetheless permissible. Turner I, supra; Procunier v. Martinez, supra. As Judge Kaplan correctly recognized, it is the character of the regulation, not whether as applied it impacts "speech" in a given instance (or speech of greater or lesser value), that determines whether intermediate or strict scrutiny applies. Universal at 327-28. Because Judge Kaplan undertook O'Brien analysis on the assumption that Corley's speech interests were at issue, and that protected speech was being impacted, the arguments Corley and his amici make concerning "functional" speech are simply not germane to any issue on appeal. FCC v. Pacifica Found., 438 U.S. 726, 735 (1978). Finally, Corley's effort to root strict scrutiny in 17 U.S.C. § 1201(c)(4) is also meritless. That subsection's assurance that nothing in § 1201 "shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products" does not support Corley's claimed right to provide decryption devices to the public, much less suggest the standard of review to be applied in assessing the First Amendment defense he offers. Such provisions are used by Congress to reassure bill opponents that Congress considered the relevant interests, and intended no violation of the First Amendment. No court has held that such savings clauses require any different analysis than would otherwise obtain.
II. THE APPLICATION OF THE TRAFFICKING PROSCRIPTIONS TO CORLEY’S CONDUCT SATISFIES INTERMEDIATE SCRUTINY. Intermediate scrutiny entails a two-fold inquiry. First, does the law "further[] an important or substantial governmental interest" that is "unrelated to the suppression of free expression." Second, is the "the incidental restriction on alleged First Amendment freedoms . . . no greater than is essential to the furtherance of that interest." O’Brien, 391 U.S. at 377; United States v. Weslin, 156 F.3d at 297. The DMCA’s trafficking proscriptions and Judge Kaplan’s injunction against Corley’s admitted trafficking in DeCSS easily meet both requirements.
A	The Trafficking Proscriptions Further Significant Interests Unrelated to the Suppression of Expression .
	Corley contends (Br. 25) that the DMCA and injunction are insufficiently tailored, but accepts (Br. 22) Judge Kaplan's holding that the trafficking proscriptions further significant interests unrelated to the suppression of expression. The first part of the O'Brien standard (whether the law furthers a substantial governmental interest) is, therefore, not at issue. See Universal at 330 ("The anti-trafficking provision of the DMCA furthers an important governmental interest - the protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in this electronic age. The substantiality of that interest is evident both from the fact that the Constitution specifically empowers Congress to provide for copyright protection and from the significance to our economy of trade in copyrighted materials.").
B	The Injunction Against Providing DeCSS Does Not Unnecessarily Restrict Expressive Activities .
	To satisfy O'Brien's narrow tailoring requirement, a regulation need not be the least speech-restrictive means of advancing the government's interests. Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation," and does not "burden substantially more speech than is necessary to further" that interest. Turner II, 520 U.S. at 213-14; see also id. at 215. The standard is satisfied if the "burden . . . . is congruent to the benefits it affords." Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). "'The essence of narrow tailoring is 'focusing on the evils the [government] seeks to eliminate . . . [without] significantly restricting a substantial quantity of speech that does not create the same evils.'" Turner II, 520 U.S. at 216 (citation omitted). The trafficking proscriptions easily meet that test. Congress's purposes plainly would be achieved "less effectively absent the regulation." The risks of widespread digital dissemination of infringing copies of digital copyrighted works are reduced if the means for circumventing the technological protections that prevent access to and copying of the unencrypted digital content on DVDs cannot be indiscriminately provided to the public. Moreover, the WIPO treaties require "legal protection and effective legal remedies," which § 1201 affords. Indeed, as Congress expected, it took the DMCA and the technological access control measures and other protections it fosters and protects to induce various copyright owners to make their works available digitally. Moreover, the trafficking proscriptions are "congruent to the benefits" they afford and do not "restrict a substantial quantity of speech" because all that they prohibit is the provision of actual decryption devices to the public. They do not restrict academic research, or protest against the DMCA. Most of what they were intended to reach, and do reach, is not speech at all; and if they do reach any "speech," the trafficking proscriptions only prohibit disseminating to the public the very circumvention devices that Congress decreed may not be distributed. The trafficking proscriptions thus advance precisely the interest that the nations ratifying and implementing WIPO, including the United States, have sought to advance. In comparable circumstances, in United States v. Weslin, this Court easily held the Federal Access to Clinic Entrances Act ("FACE") "valid under O'Brien," noting that FACE advanced the interests underlying it more effectively than would be possible without it, while leaving "anti-abortion protestors and all other persons wishing to exercise free speech rights under the First Amendment at liberty to hold signs, pass out handbills, speak conversationally, and so forth, anywhere and anytime they choose." 156 F.3d at 298. Corley and his allies are similarly free to criticize the DMCA or Hollywood, discuss and teach cryptography, and so forth, anywhere and anytime they choose. All that they may not do is provide to the public the particular circumvention device, DeCSS, that would defeat the access and copy controls with which the Studios have protected their works. As in Pittsburgh Press, the burden (if any) imposed by the DMCA's trafficking proscriptions is exactly "congruent to the benefits" it affords. Indeed, the "speech" burdened by the DMCA is limited to any decryption utility that may itself not be distributed (just as in Pittsburgh Press the burden fell only on publishing discriminatory employment advertisements). The DMCA and Judge Kaplan's permanent injunction prohibit precisely the conduct that Congress found would be harmful and, thus, defined as unlawful: the offering to the public of decryption devices. Throughout its range, the restriction produces the precise benefit Congress sought to obtain. See Albertini, supra; Ward, supra. The only case Corley cites in which a law subject to O'Brien review was invalidated, Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996), is inapposite, since it involves protected activity, not conduct that may be prohibited. Review of "time, place, and manner" regulations always has entailed consideration of whether such regulations "leave open ample alternative channels for communication." See, e.g., Clark, 468 U.S. at 293. Accordingly, the Bery court, after concluding that the City's licensing regime for street artists was effectively "a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York," held that "[t]he sidewalks of the City must be available for appellants to reach their public audience," and that the "City has thus failed to meet the requirement of demonstrating alternative channels for appellants' expression." Bery, 97 F.3d at 697-98. But when O'Brien review is aimed at conduct regulations, and speech impacts are incidental (if they exist at all), the question is less pertinent, or at least different, and the touchstone, as identified in Turner and Albertini, is simply whether the governmental interest would be advanced less effectively absent the regulation. See Albertini, 472 U.S. at 688-689, see also Turner I and II, supra. Corley complains (Br. 25) that Judge Kaplan failed "entirely to consider the availability of alternative channels of expression for DeCSS." However, "alternative channels" analysis does not apply where what is regulated is itself unlawful, such as the discriminatory help-wanted notices in Pittsburgh Press, the software program in Mendelsohn, and the trafficking in decryption devices here. Defendants in fraud cases, for example, may not challenge the application of fraud statutes to their speech because "alternative channels of expression" for their fraud are unavailable. In any event, the DMCA leaves untouched channels of communication for persons engaged in protest, encryption research, reverse engineering, and security testing. See 17 U.S.C. §§ 1201(f)(3), 1201(g)(4)(B) & 1201(j)(4). All it proscribes, and properly so, is provision of decryption devices like DeCSS to the public at large (where they would lead to great harm). See also Albertini, 472 U.S. at 688-89.
C	Given Corley’s "Studied Effort to Defeat" the Preliminary Injunction, the Injunction Barring Him from Knowingly and Purposely Providing DeCSS by Linking Does Not Unnecessarily Restrict His Expressive Activities and Satisfies Intermediate Scrutiny .
	Having found that Corley violated the trafficking proscriptions and made "a studied effort to defeat the purpose of the preliminary injunction," and that there was a "substantial likelihood of future violations absent injunctive relief," Universal at 343, Judge Kaplan correctly formulated a decree to prevent and restrain further violation of the Studios' rights. Accordingly, in paragraphs 1(a) and 1(b) of the Final Judgment (A2690), Judge Kaplan enjoined Corley from "offering to the public, providing, or otherwise trafficking in DeCSS" - by any means, including the means he had been using during the six months that the preliminary injunction was in effect (i.e. providing hyperlinks to DeCSS) in a flagrant challenge to the district court's authority. To satisfy Rule 65(d) and eliminate any contention that the prohibition against "providing" DeCSS was insufficiently specific or left Corley free to find other indirect ways of providing DeCSS to the public, Judge Kaplan, adding belt to suspenders, also expressly enjoined Corley from further distribution of DeCSS to persons accessing his site by "knowingly linking any Internet web site operated by them to any other web site containing DeCSS or knowingly maintaining any such link for the purpose of disseminating DeCSS." (A2692, paragraph 1(c)) The core of the Studios' position on Corley's linking scheme was that Corley's behavior once legal action commenced (e.g., his brazen attempts to frustrate the Studios' ability to obtain effective relief by encouraging additional DeCSS postings, and then to evade the preliminary injunction by setting up hundreds of links to DeCSS on the Site instead of keeping a "safe distance" from his enjoined conduct) was an intentional, sustained distribution of DeCSS to the public, thereby warranting further injunctive relief. That was the basis on which the permanent injunction against Corley's linking scheme was sought and imposed. Federal courts have held consistently that a defendant's failure to keep a "safe distance" from previously-enjoined conduct sufficiently warrants broader injunctive relief. See, e.g., Scott, 187 F.3d at 288-89 ("in certain situations, 'a record of abusive conduct makes a prohibition' permissible where it would not otherwise have been"); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 390 (5th Cir. 1977) (in fashioning equitable relief against a party "who has transgressed the governing standards, a court of equity is free to proscribe activities that, standing alone, would have been unassailable"); Oral-B Labs., Inc. v. Mi-Lor Corp., 810 F.2d 20, 24 (2d Cir. 1987) ("Furthermore, a party who has once infringed a trademark may be required to suffer a position less advantageous than that of an innocent party"). Contrary to the protestations of some of Corley's amici, see, e.g., Online News Association Br. at 13, Judge Kaplan made plain that he was not broadly holding "linking" unlawful. Universal at 340-41. Rather, the injunction was based soundly on the particular facts of Corley's "studied effort to defeat the purpose of the preliminary injunction" (A2684) and his admitted purpose of disseminating DeCSS. Corley's 500 links to DeCSS were not merely a by-product of an article describing a controversy, or an effort to make such an article more complete; rather, he admittedly set out to distribute DeCSS to the public, and engaged in repeated efforts to do so, providing it continuously for many months. Barring Corley from "knowingly linking any Internet web site operated by [him] to any other web site containing DeCSS or knowingly maintaining any such link for the purpose of disseminating DeCSS" was necessary if the governmental interest underlying the trafficking proscriptions was to be served, as Judge Kaplan recognized. Unless Judge Kaplan framed the injunction to make plain to Corley that it prohibited his provision of DeCSS by any method, including by linking, its remaining provisions could not achieve the purpose for which Congress authorized injunctive relief. Corley and his amici ignore this history against which the permanent injunction was crafted and, misguidedly, complain that this appeal presents broad questions about the constitutional status of linking generally. But as the Supreme Court held in FCC v. Pacifica Foundation, 438 U.S. 726, 734 (1978), appellate courts "review[] judgments, not statements in opinions . . . [and that rule] has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues." Accordingly, the focus of review here is properly on the injunction entered against Corley, not on the issues that Corley and his amici - by grossly overreading the permanent injunction, misreading the opinion and studiously ignoring the findings and record on which it was entered - would rather address (such as whether the district court's "test for linking liability is inadequate" or whether it "will chill significantly more speech than the defamation standard"). This case, after all, like Pacifica, is an enforcement action, not an affirmative facial challenge, much less an affirmative facial challenge to a law directed at speech. See also Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973) ("particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep"). It is also important to note that Corley's linking is already proscribed (although not with the same unmistakable clarity) by paragraphs 1(a) and (b) of the Final Judgment. Those restrictions in the permanent injunction prohibit Corley from providing DeCSS to the public by any means. Thus, the simplest basis for upholding paragraph 1(c) - which eliminated any doubt that the injunction barred Corley from providing DeCSS in any manner whatever, including linking - is that it reaches no conduct (or speech) not already barred by paragraphs 1(a) and 1(b) and, therefore, satisfies the First Amendment if they do. Because paragraphs 1(a) and (b) survive O'Brien review, so too does paragraph 1(c). See supra n.29 and Point IIA. Even if the Madsen-Schenck test were applied to the injunction, every part of it is valid, including the clarification in paragraph 1(c) that Corley's knowing, intentional provision of DeCSS by linking is prohibited. Under Madsen and Schenck, an injunction directed at expressive activity is valid if it "burdens [no] more speech than necessary to serve a significant governmental interest." See Schenck, 519 U.S. at 374; Scott, 187 F.3d at 287. Enjoining Corley from knowingly providing the public with links on his Site to DeCSS "for the purpose of disseminating DeCSS" serves precisely the interests underlying the DMCA, which are not challenged here, and, accordingly, burdens "no more speech than necessary." Determining whether an injunction burdens more speech than necessary requires assessing how much speech is likely to be burdened and whether that burden is necessary in light of the circumstances presented. On the facts adduced at trial - which proved that Corley engaged in a campaign of "electronic civil disobedience" by soliciting others to copy DeCSS onto their own web sites and then return to him their URLs so that he could, after carefully verifying that those sites contained the DeCSS, create a link back to DeCSS, whose presence he had induced - it is plain that very little, if any, "speech" of Corley's was burdened by paragraph 1(c), and that any such burden is "necessary" within the meaning of Madsen and Scott. No speech of Corley's is prohibited by the restriction in paragraph 1(c) against Corley's provision of DeCSS by linking. He evidenced no interest in linking to those sites other than to further distribute DeCSS to the public. Corley's testimony that he did not link to the sites whose addresses were returned to him unless they contained DeCSS (Tr. 847:28-848:7, 851:20-852:12) indisputably confirms that his interest was limited to providing DeCSS and did not extend to republishing any non-DeCSS content on those sites. (Given his plea to hackers to copy DeCSS and practice of linking back to their sites only after he ensured that they had done so, it is fair to say that any claim that he has an interest in "sharing" the speech of others would be based on smoke and mirrors.) That the injunction is narrowly tailored to Corley's provision of DeCSS (by whatever means), without burdening more speech than necessary, is also confirmed by the fact that the injunction prohibits Corley from providing DeCSS by linking to sites containing it, but does not eliminate those sites or purport to reach them (unless they are acting "in concert" with him, in which case their provision of DeCSS is already prohibited by paragraphs 1(a) and 1(b)). Nor is any burden produced by "uncertainty" and resulting chilling effect; the injunction against linking makes entirely clear what Corley may not do. Cf. Scott, 187 F.3d at 287-88 (discussing the uncertainty problem in Schenck that it found not present in the order under review). Corley's own conduct brings the Scott justification squarely into play and makes plain that, under the circumstances, any marginal burden on Corley's "speech" imposed by paragraph 1(c) is no greater than necessary.
III. THE INJUNCTION AGAINST CORLEY’S INDISCRIMINATE TRAFFICKING IN DeCSS DOES NOT UNCONSTITUTIONALLY ELIMINATE FAIR USE. Corley's argument (Br. 41-66) that the injunction "unconstitutionally eliminates fair use" and that the anti-circumvention and trafficking proscriptions of the DMCA should be construed to avert this purported constitutional difficulty is wrong for multiple reasons. First, Congress deliberately declined to enact a fair use defense for either the circumvention (§ 1201(a)(1)) or trafficking causes of action (§ 1201(a)(2),(b)), providing, instead, an assortment of defenses and exemptions better-tailored to the statutory plan. Second, because Corley did not seek to use DeCSS himself and distributed DeCSS to the world at large without making the slightest attempt to limit distribution to persons seeking to make what he contends would be "fair use decryption," Corley cannot defend his trafficking in DeCSS on the theory that it would facilitate fair use by others. As Judge Kaplan recognized, Corley raises the purported "right to fair use" solely on the basis of third-party hypothetical uses, none of them serious, imminent or prevalent enough to justify striking down a statute whose application in most instances (preventing the "Napster-ization" of the Studio's copyrighted films) is constitutional. See Universal at 337-39. Such a third-party fair use defense to public trafficking in unlawful decryption devices, abstracted from the use of specific copyrighted works, is conceptually unintelligible, and even if it were not, Corley's indiscriminate dissemination of DeCSS to the general public renders him ineligible for any such defense. Further, given technological advances, there is today, under the DMCA, a far greater opportunity for fair use of the Studio's motion pictures and the supplementary materials distributed with them on DVDs than was available either before commercial distribution of VCRs or since. The First Amendment surely does not require a fair use defense for the indiscriminate public provision of decryption devices, least of all now, while the dystopian scenarios that so alarm amici are nowhere near becoming reality and wholly unsupported by the record. This Court should affirm Judge Kaplan's decision and reject Corley's attempt at an unnecessary "saving" construction of the statute, a construction that would nullify the protection Congress afforded in the DMCA.
A	Congress Expressly Rejected a Fair Use Defense to the Ban on Providing Circumvention Devices to the Public.
	Rejecting a general fair use defense for § 1201(a) and (b), which Corley's attorneys and many of his amici urged Congress to enact, Congress instead provided seven narrower exemptions and defenses where it was possible to do so consistent with the overall purpose of the anti-circumvention and anti-trafficking statutory mandates. See 17 U.S.C. § 1201(d)-(j) (2000). This statutory scheme reflects a conscientious effort to balance the interests of copyright holders and others and to articulate this balance in terms appropriate to the distinctive purpose of the DMCA. Corley asserted several of these statutory exceptions, and Judge Kaplan's rejection of these defenses by Corley is unchallenged. See Universal at 319-21. But § 1201 conspicuously does not provide a "fair use" defense to trafficking in circumvention devices. The legislative history confirms that Congress intended that the DMCA should not detract from the fair use defense already available to copyright infringement actions, and equally that "fair use principles certainly should not be extended beyond their current formulation." H.R. Rep. No. 105-551, pt. 2, at 25 (1998) (Add-91); see also S. Rep. No. 105-190, at 23-24, 30 (1998) (Add-30-31, 37). Advocates of a general fair use defense to a violation of § 1201, including representatives of amici, presented their concerns to Congress, and the House Commerce Committee was particularly "concerned that marketplace realities" could lead to "less access, rather than more, to copyrighted materials," and in a worst-case scenario "the permanent encryption of all electronic copies." H.R. Rep. No., pt. 2, at 36 (Add-96). Indeed, an amendment "legislating an equivalent fair use defense for the new right to control access" was proposed. H.R. Rep. No. 105-551, pt. 2, Additional Views of Scott Klug and Rick Boucher, at 85-86 (Add-106-07). But, as the amendment's advocates acknowledge, id., Congress rejected the pleas of 62 law professors to forego the trafficking proscriptions, H.R. Rep. No. 105-551, pt. 2, at 24 (Add-90), and also declined to enact a fair use defense. Instead, Congress adopted, inter alia, a two-year moratorium on circumvention liability under § 1201(a)(1)(A) - but, importantly, not on trafficking liability - and narrowly tailored exemptions from trafficking liability that would not destroy the village in order to save it. See 17 U.S.C. § 1201(a)(1)(A-D), § 1201(f-j). Notably, the DMCA makes a firm distinction between circumvention liability - for which Congress provided in § 1201(a)(1) the possibility of regulatory exemption of classes of works in furtherance of the interests that underlie the fair use defense to infringement actions - and trafficking liability under §§ 1201(a)(2) and (b), as to which no such exemption was afforded or conceptually possible. Indeed, as Congress recognized, public provision of decryption devices would eliminate precisely the security for technologically protected copyrighted works that Congress sought to foster. See 17 U.S.C. § 1201(a)(1)(E); Staff of House Comm. on the Judiciary, 105th Cong., 2d Sess., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, (Comm. Print 1998) ("Committee Print"), at 8 (Add-66). Congress's rejection of a general fair use defense to trafficking liability is reflected in three narrow exemptions to § 1201(a)(2) for persons who develop and provide circumvention technologies for the limited purposes of reverse engineering, encryption research, and security testing. See 17 U.S.C. § 1201(f)(2), (f)(3), (g)(4), (j)(4). Congress was mindful of potentially legitimate needs to circumvent technological protections limiting access and copying, and chose to craft exemptions narrowly tailored to those needs so as to advance the DMCA's goal of inducing copyright owners to make their works available in digital form. See Committee Print at 15 (Add-73-74) (Section 1201(f)(3) accommodates sharing of circumvention tools to facilitate interoperability of newly-developed computer programs, but "[r]ecognizing . . . that making circumvention information or tools generally available would undermine the objectives of this Act, the provision imposes strict limitations."). The Supreme Court consistently has deferred to Congress's ability to balance competing interests when technological innovations threaten to diminish the incentives fostered by the Copyright Act. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984) ("Sound policy, as well as history, supports our 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."). Congress deliberately omitted a fair use defense for trafficking in circumvention devices, and the targeted exemptions that it did craft would be rendered superfluous - in violation of basic rules of statutory construction - by the fair use defense Corley and his amici ask the Court to enact. See, e.g., Commissioner v. Clark, 489 U.S. 726, 739 (1989) (statutory exceptions are construed narrowly to preserve the primary operation of the statute); Patsy v. Board of Regents, 457 U.S. 496, 507-12 (1982) (rejecting proposed construction that would render other statutory provisions superfluous); United States v. Tappin, 205 F.3d 536, 540 (2d Cir.) (same), cert. denied, 121 S. Ct. 260 (2000). The statutory text, structure, and legislative history all confirm that the reference to "fair use" in § 1201(c)(1) is to keep causes of action for circumvention and trafficking, and defenses thereto, separate from infringement actions and defenses. By its very nature, fair use cannot be wrenched from the infringement context and wedged into the DMCA's statutory framework: fair use is the "use of a copyrighted work," 17 U.S.C. § 107, permissible only under a "case-by-case analysis" of the use in relation to the work, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 n.8 (1994); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). A defendant establishes a fair use affirmative defense by proving, Campbell, 510 U.S. at 590, that his use of a particular work will be limited and unlikely to cause market harm. By contrast, the DMCA is concerned not with the copying of specific works but with the public dissemination of devices that facilitate infringement and thereby risk harm to all copyrighted works protected by a given technology. A fair use defense to trafficking in circumvention devices - which Congress refused to enact, despite pleas to do so by, among others, Corley's attorneys and many of his amici - would render the proscription meaningless and eviscerate the technological protections against digital copying that Congress sought to foster.
B	Even If Congress Had Not Expressly Rejected a Fair Use Defense to a Trafficking Claim, Corley Could Not Prevail on Any Such Defense and His "Overbreadth" Argument Is Equally Unavailing
	Judge Kaplan's permanent injunction against Corley's trafficking in DeCSS cannot be overturned on fair use grounds not only because Congress provided no such defense, but also because, by Corley's own admission, he would not be entitled to it in any event. During the course of the proceedings below, Corley admitted that: (a) he did not own any DVDs or a DVD player; (b) he personally never used, nor sought to use, DeCSS; and (c) he never wanted or needed to decrypt any work protected with CSS. (A337-38) The only "use" Corley made of DeCSS was his sustained trafficking in the device on the Site, with no attempt to limit distribution to persons with some particularized need to use it for a non-infringing, or any other arguably permissible purpose. On this record, Corley cannot possibly be entitled to rely on fair use because he personally is not making any "use" of either DVDs or DeCSS. Corley's fair use mantra is an impermissible attempt to raise the purported fair use rights of a host of third-party, hypothetical users of DeCSS, in defiance of Congress's decision that consideration of such purported uses - i.e., the doctrine of Sony, 464 U.S. at 440-42 - "is not part of this legislation." See supra n.16. In fact, Dr. Peter Ramadge's testimony showed that digital audiovisual content can be licensed for his research purposes, and that DeCSS is, at most, a means to obtain better quality content at a better price - i.e., free. See A388-90. He had no knowledge of whether his corporate research sponsors approached copyright owners to obtain licenses to use digital content. A398. Federal courts routinely have rejected defendants' attempts to assert the fair use rights (whether real or hypothetical) of third parties to excuse their unlawful conduct. See, e.g., Napster, Inc., 2001 WL 115033, at 6-12 (rejecting defendant MP3 music file sharing service's argument that its users engaged in fair use); Infinity Broad. Corp., v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (rejecting defense despite argument by defendant which retransmitted copyrighted radio broadcasts over telephone lines that end listeners engaged in transformative fair use of broadcasts); Princeton Univ. Press v. Michigan Document Servs., 99 F.3d 1381, 1386 & n.2 (6th Cir. 1996) (rejecting fair use defense to college campus "copy shop" operator's unauthorized copying of "coursepacks" despite assertion that "it would be fair use for the students or professors to make their own copies"), cert. denied, 520 U.S. 1156 (1997); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1530-31 (S.D.N.Y. 1991) (same); UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351-53 (S.D.N.Y. 2000) (rejecting fair use defense to website operator's unauthorized copying of copyrighted CDs despite defendant's attempt to portray service as "functional equivalent" of its subscribers' fair use). For this same reason, this Court also should reject any attempt to argue that by impairing fair use of DVDs generally the DMCA's trafficking proscriptions are unconstitutionally overbroad (which Corley seems to have abandoned in any event, see Br. at 52, but which some of his amici press). Generally, a litigant has standing only to vindicate his own rights. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). Accordingly, Corley may assert hypothetical fair uses by others only if the overbreadth doctrine were applicable here. It is not. As the Supreme Court repeatedly has cautioned, overbreadth is "strong medicine" that should be applied only "with hesitation" and as a "last resort." Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39 (1999); New York v. Ferber, 458 U.S. 747, 769 (1982); Broadrick, 413 U.S. at 613. Where statutes aimed solely at conduct - as are § 1201(a)(2) and (b), see Point IA, supra - are concerned, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," before the statute can be invalidated. Hill, 120 S. Ct. at 2498; Ferber, 458 U.S. at 770; Broadrick, 413 U.S. at 615. Here, as in United Reporting, Ferber, and Authors League of Am., Inc. v. Oman, 790 F.2d 220, 225-26 (2d Cir. 1986) (Oakes, J., concurring), Congress's stated, legitimate purpose in enacting, and the permissible applications of, the DMCA's trafficking proscriptions dwarf whatever marginal applications might be imagined to impair expressive interests, and Judge Kaplan properly rejected Corley's argument that application of the DMCA to his trafficking activities is unconstitutional because of its supposed chilling effect on some theoretically permissible conduct or speech of others. Universal at 337-39.
C.	The Trafficking Proscriptions Do Not Eliminate Fair Use of Films Delivered on DVD .
	Corley and his amici erroneously assert that the permanent injunction, and the DMCA's trafficking proscriptions in general, sound the death knell for fair use of copyrighted works delivered on DVDs. Contrary to those claims, however, the public now has a far greater body of commercially-released films from which to make fair use, and a greater scope for fair use of each of those films, than was ever available prior to the commercial launch of VCRs in the 1970s. In the pre-VCR era and since, the First Amendment has not been violated by the fact that the fair uses that could have been made of films always have been necessarily impacted by the Studios' decisions about how frequently, and in what cities and theaters, to release their films. The property rights that have, for example, permitted Disney to release Snow White only periodically and for limited times, and that permit both live stage and motion picture theaters to refuse to allow ticketholders to film or videotape plays and films, do not violate the First Amendment, and neither do the state law rights that, together with 17 U.S.C. § 202, permit purchasers of art objects or literary manuscripts (whether or not copyrighted) to keep them out of public view. The Studios are free to release their films exclusively for display in movie theaters, or not to release them at all. See, e.g., Stewart v. Abend, 495 U.S. 207, 228-29 (1990) ("nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright"). Studios distributed their works for decades in this manner before the advent of DVDs, or even of videocassettes, and fair uses for film criticism, comment, teaching, scholarship, and research were as common as crabgrass. Contrary to Corley's assertion (Br. 41) that the permanent injunction is "unconstitutional because it eliminates fair use of DVD movies," neither the injunction nor the DMCA "eliminate fair use" of anything, much less of any copyrighted work at issue in this action.65 Fed. Reg. 64555, 64567. A movie released on DVD and in no other format could be the subject of innumerable uses potentially qualifying as fair use. Its plot and characters can be imitated or spoofed; its language can be quoted; and it can be shown on a DVD player in a classroom. Further, nothing in the DMCA, for example, would prohibit taking a brief snapshot from a TV or video display, that otherwise meets the statutory fair use criteria, of the content on a DVD (which would not, to be sure, be a perfect digital copy, but that is precisely the point of the trafficking proscriptions). In short, rigorous enforcement of the anti-circumvention provisions would impair, at most, the marginal quality of the image available for certain kinds of exotic fair uses. However, § 107 of the Copyright Act does not afford a "privilege" to make perfect digital copies of DVD movies; it merely provides a defense in infringement actions for certain permissible uses. Nothing in the DMCA or the First Amendment gives courts the duty or power, in the abstract, to create a new fair use "right" to optimal copies of a copyright owner's works, when Congress already has weighed the competing interests and come to a different balance. Yet, it is only in this diminished ease of access to such optimal copies - anecdotally suggested here and there in the record, with no reference to specific users or specific works - that Corley grounds his sweeping assertion that fair use is being "eliminated." Even if his constitutional arguments were not otherwise defective, Corley's claims about fair use should be rejected because of their sheer factual inaccuracy and his failure of proof.
	CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the district court in all respects.
Leon P. Gold, Esq. Charles S. Sims, Esq. Jon A. Baumgarten, Esq. Carla M. Miller, Esq Matthew J. Morris, Esq. Proskauer Rose LLP 1585 Broadway New York, New York 10036 (212) 969-3000 Attorneys for Plaintiffs-Appellees
CERTIFICATION
The undersigned attorney for appellees certifies that the foregoing brief complies with the type-volume limitation set forth in Federal Rule of Appellate Procedure 32(a)(7). The total number of words in the foregoing brief is 16,949.
Leon P. Gold, Esq. Charles S. Sims, Esq. Jon A. Baumgarten, Esq. Carla M. Miller, Esq Matthew J. Morris, Esq. Proskauer Rose LLP 1585 Broadway New York, New York 10036 (212) 969-3000 Attorneys for Plaintiffs-Appellees 00-9185 To Be Argued By: Charles S. Sims
United States Court Of Appeals for the Second Circuit UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT COMPANY, L.P., DISNEY ENTERPRISES INC., TWENTIETH CENTURY FOX FILM CORPORATION, Plaintiffs-Appellees , -against- ERIC CORLEY, also known as Emmanuel Goldstein and 2600 ENTERPRISES INC., Defendants-Appellants , -and- SHAWN C. REIMERDES and ROMAN KAZAN, Defendants . ___________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________________________________________ BRIEF FOR PLAINTIFFS-APPELLEES ____________________________________________________________________ _
Leon P. Gold, Esq. Charles S. Sims, Esq. Jon A. Baumgarten, Esq. Carla M. Miller, Esq Matthew J. Morris, Esq. Proskauer Rose LLP 1585 Broadway New York, New York 10036 (212) 969-3000 Attorneys for Plaintiffs-Appellees
FRAP 26.1 STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and to enable judges of the Court to evaluate possible disqualification or recusal, plaintiffs-appellees — Universal City Studios, Inc.; Paramount Pictures Corporation; Metro-Goldwyn-Mayer Studios Inc.; TriStar Pictures, Inc.; Columbia Pictures Industries, Inc.; Time Warner Entertainment Company, L.P.; Disney Enterprises, Inc.; and Twentieth Century Fox Film Corporation (each a private, non-governmental party) — certify that the following are all of the corporate parents, and other publicly held companies owning 10% or more of any plaintiff-appellee’s stock: AOL Time Warner Inc. AT&T Corp. Bombay Hook Limited Fox Entertainment Group, Inc. French Street Management Inc. Metro-Goldwyn-Mayer, Inc. News America, Incorporated The News Corporation Limited Sony Corporation Viacom, Inc. Viacom International, Inc. Vivendi Universal S.A. The Walt Disney Company
TABLE OF CONTENTS
TABLE OF AUTHORITIES v ISSUES PRESENTED FOR REVIEW 1 STATEMENT OF THE CASE 1 A. The Film Studios' Businesses, the Advent of DVD Technology, and the Content Scramble System ("CSS") 4 B. The Digital Millennium Copyright Act of 1998 ("DMCA") 6 C. The Circumvention of CSS, and the Creation and Proliferation of DeCSS 7 D. Defendants Eric Corley and 2600 Enterprises, Inc., and TheirUnlawful Trafficking in DeCSS and Linking Scheme Intentionally Designed to Evade the Preliminary Injunction 9 E. The District Court's Opinion and Injunction 12 SUMMARY OF ARGUMENT 14 ARGUMENT 17 I. APPLICATION OF THE TRAFFICKING PROSCRIPTIONS OF THE DMCA TO CORLEY'S CONDUCT IS SUBJECT, AT MOST, TO INTERMEDIATE SCRUTINY 17 A. The DMCA Is a Generally Applicable Regulation of Conduct,Not Speech 22 B. The DMCA's Trafficking Proscriptions Are Not Content-Based and Do Not Single Out Speech or the Media For Differential Treatment 28 C. Corley's Remaining Arguments for Strict Scrutiny Are Meritless 32 II. THE APPLICATION OF THE TRAFFICKING PROSCRIPTIONSTO CORLEY'S CONDUCT SATISFIES INTERMEDIATE SCRUTINY 38 A. The Trafficking Proscriptions Further Significant InterestsUnrelated to the Suppression of Expression 38 B. The Injunction Against Providing DeCSS Does Not Unnecessarily Restrict Expressive Activities 40 C. Given Corley's "Studied Effort to Defeat" the Preliminary Injunction, the Injunction Barring Him From Knowingly and Purposely Providing DeCSS by Linking Does Not Unnecessarily Restrict His Expressive Activities and Satisfies Intermediate Scrutiny 45 III. THE INJUNCTION AGAINST CORLEY'S INDISCRIMINATE TRAFFICKING IN DeCSS DOES NOT UNCONSTITUTIONALLY ELIMINATE FAIR USE 52 A. Congress Expressly Rejected a Fair Use Defense to the Ban On Providing Circumvention Devices to the Public 54 B. Even If Congress Had Not Expressly Rejected a Fair Use Defense to a Trafficking Claim, Corley Could Not Prevail on Any Such Defense and His "Overbreadth" Argument Is Equally Unavailing 59 C. The Trafficking Proscriptions Do Not Eliminate Fair Use of Films Delivered on DVD 64 CONCLUSION 67 ADDENDUM OF PERTINENT STATUTORY AND LEGISLATIVE MATERIALS 17 U.S.C. § 1201 Add-1 S. Rep. No. 105-190 (1998) Add-8 H.R. Conf. Rep. No. 105-796 (1998) Add-47 House Comm. on the Judiciary, 105th Cong., 2d Sess., Section- by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998 (Comm. Print 1998) Add-58 H.R. Rep. No. 105-551, pt. 1 (1998) Add-79 H.R. Rep. No. 105-551, pt. 2 (1998) Add-88 Recommendation of the Register of Copyrights, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556 (Oct. 27, 2000) Add-109 144 Cong. Rec. H10615 (Statements of Rep. Barney Frank) Add-129

Attorneys for Plaintiffs-Appellees 00-9185

Attorneys for Plaintiffs-Appellees

00-9185