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NEWS AND COMMENT ON RECENT DEVELOPMENTS FROM AROUND THE WORLD1
CLSR Briefing
of making the UK the best place in the world to do business electronically. Rolling out Fixed Wireless Access services is vital to achieving this goal. These two chances of spectrum could complement the services already offered to small business, homes and teleworkers. " Editor's Note: A consultation document: Consultation on 3.4GHz Fixed Wireless Access Spectrum was published in November 1999. The current consultation will seek to confirm the results of that analysis. Further information from Radiocommunications Agency Web site at:.
UNITED STATES Permanent injunction issued in DVD decryption software case Universal City Studios Inc. et al v Reimerdes, No. 00 Civ. 0277 (S.D.N.Y, 17 August 2000) The District Court for the Southern District of New York has ruled that the Digital Millennium Copyright Act (DMCA) of 1998 was violated when software designed to decrypt copyrighted motion pictures for home use on DVDs was posted on the Internet along with links to other Web sites upon which the software could be found. The action was brought by eight major US motion picture studios that distribute many of their copyrighted films for home use on Digital Versatile Disks (DVDs). They protect these motion pictures from copying by using an encryption system called CSS. Such DVDs could only be viewed on players and computer drives equipped with licence technology that permitted the devices to decrypt and play but not copy the films. In 1999, computer hackers devised a computer program called DeCSS that circumvented the CSS protection system and allowed such protected films to be copied and played on devices that lacked the licensed decryption technology. The DeCSS software was posted on the defendants' Web site making it readily available to much of the world. The plaintiffs promptly sued under the Digital Millennium Copyright Act (DMCA) to enjoin the defendants from posting DeCSS and to prevent them from electronically 'linking' their site to others that also posted DeCSS. The
defendants response was to increase their efforts to link their Web site to others, thereby continuing to make DeCSS available. The defendants argued that the DMCS should not apply to their conduct, mainly because the Act, so applied, could prevent those wishing to gain access to technologically protected copyright works to make fair - noninfringing - use of them from doing so. Defendants argued that software products such as their own would be needed to make fair use of technologically protected works possible. They argued that technological access control measures would have the capacity to prevent fair uses of copyrighted works as well as foul or illegitimate use of such works. The effect on the plaintiffs of the defendants' action depended to an extent upon the ease with which DeCSS decrypted the plaintiffs' motion pictures, the quality of the resulting product, and the convenience with which decrypted copies might be transferred or transmitted. In fact , the court found that decryption of a CSS protected DVD was only the beginning as the file would be very large and would need a compression utility to reduce the decrypted film files to a manageable size. Such technology existed and enabled a DeCSS decrypted DVD to be compressed satisfactorily to 650 MB. This would enable a writeable CD-ROM to hold such a file. Network transmission of a decrypted motion picture raised more difficult issues because a 650 MB file was large and would take some time to transmit. Many home computers had modems that could only transmit at the rate of 56 Kilobits per second, whereas business users might utilize transfer rates of 7MB per second. Students in study bedrooms could transmit at 10MB and large institutions, such as universities and major companies, often had networks with backbones rated at 100MB per second. Transmission times from 3 to 20 minutes and upward to 6 hours were therefore possible. The result was that DeCSS was a "free, effective and fast means of decrypting the plaintiffs' DVDs and copying them to computer hard drives". The implications for the plaintiffs were that the availability of DeCSS required them either to tolerate increased piracy of their motion pictures or expend resources to develop and implement a replacement system, unless the availability of De CSS was terminated. The availability of
decryption software and the capacity to distribute motion pictures on DVD, both on CD-ROMs and via the Internet, threatened to reduce the revenue going to studios from the sale and rental of DVDs. The focus of the case was Section 1201 of the DMCA which created two anti-circumvention provisions. The first, which was not at issue, related to the act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work. The second (Section 1201(a)(2)) "supplements the prohibition against the act of circumvention in paragraph (a)(1) with prohibitions on creating and making available certain technologies … developed or advertized to defeat technological protections against unauthorized access to a work". This was the relevant provision as the defendants were accused of posting and linking to other sites their DeCSS decryption software and not of using it themselves to bypass the plaintiffs' access controls. The court found as "inescapable" the fact that (1) CSS was a technological means of controlling access to plaintiffs' copyrighted works; (2) the one and only function of DeCSS was to circumvent CSS, and (3) the defendants offered and provided DeCSS by posting it on their Web site. Whether they did this to infringe or to encourage others to do so did not matter for the purposes of the DMCA. The offering or provision of the program was "the prohibited conduct and it is prohibited irrespective of why the program was written,except to whatever extent motive may be germane to determining whether their conduct falls within one of the statutory exceptions".
Statutory exception Defendants argued that their activities came within several exceptions contained in the DMCA and the Copyright Act, and constituted 'fair use' under the Copyright Act of 1976. The court rejected all these assertions as entirely without merit. Reverse engineering under Section 1202(f) did not apply as the defendants had not confined their conduct to the sole objective of achieving interoperability with another computer program. Their contention that DeCSS was necessary to achieve interoperability between computers running the Linux operating system and DVDs failed. The defendants knew that their
63
CLSR Briefing
software could be used to decrypt and play DVD movies on Windows as well as Linux machines, and they also knew that the decrypted files could be copied like any other computer file. The court also rejected the encryption research defence in Section 1201 (g)(4) since neither of the defendants in the case was involved in good faith encryption research. They had posted their software for all the world to see and their was no evidence that they made any efforts to provide the results of their efforts to the copyright owners. The court also rejected defendants' contention that their actions should be considered exempt under Section 1201(j) of the statute dealing with security testing. The record failed to indicate that the DeCSS software had anything to do with testing computers, computer systems or networks.
aware of the issue at the time and had delayed the effective date of the relevant provision so as to investigate how best to reconcile the provision with fair use concerns. Following that investigation, which was being carried out in the form of a rural-making by the Register of Copyright, the prohibition would not apply to users of particular classes of works who demonstrated that their ability to make non-infringing uses of those works would be effected adversely by Section 1201(a)(1) of the DMCA. The court ruled, therefore, that: "The fact that Congress elected to leave technologically unsophisticated persons who wished to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress' decision contravenes the Constitution.
Linking to sites offering DeCSS Fair use The defendants reliance upon the doctrine of fair use was as laid down and codified in Section 107 of the Copyright Act of 1976. This limited the exclusive rights of a copyright holder by permitting others to make limited use of portions of the copyrighted work for appropriate purposes free of liability for copyright infringement. It was the case that the application of CSS to encrypt a copyrighted motion would require the use of a compliant DVD player to view and listen to the movie. This meant that, for example, the preparation by a film studies professor of a single CD-ROM or tape containing two scenes from different movies so as to illustrate the point in a lecture would be difficult or impossible to undertake without circumvention of the CSS encryption. Based on this, the defendants argued that the DMCA could not properly be construed to make it difficult or impossible for fair use of the plaintiffs' work to take place, and that the statute therefore did not reach their activities which were simply a means to enable users of DeCSS to make such fair uses. The court recognized that this was a significant point and that access control measures such as CSS did involve some risk of preventing lawful as well as unlawful uses of copyrighted material. However, Congress had clearly faced up to and dealt with this question in enacting the DMCA. Congress had been well
64
The plaintiffs' also sought to enjoin the defendants from 'linking' their 2600. com Web site to other sites that made DeCSS available to users. Most Web pages were written in computer languages, chiefly HTM, which allowed the programmer to prescribed the appearance of the Web page on the computer screen, and, in addition, to instruct the computer to perform an operation if the cursor was placed over a particular point on the screen and the mouse then clicked. Programming a particular point on a screen to transfer the user to another Web page when the point, referred to as a hyperlink, was clicked is called linking. The Statute made it unlawful to offer, provide or otherwise traffic in described technology (S.1201(a)(2)). This anti-trafficking applied where an individual presented, held out or made a circumvention technology or device available knowing its nature, for the purpose of allowing others to acquire it. The defendants' actions, in linking to sites that automatically commenced the process of downloading DeCSS upon a user being transferred by defendants' hyperlinked, was the functional equivalent of transferring the DeCSS code to the user themselves. The same applied to hyperlinks that displayed nothing more than the DeCSS code or presented the user only with the choice of commencing a download of DeCSS and no other content.
First Amendment defence The defendants then went on to argue that the DMCA, at least as applied to prevent the public dissemination of DeCSS, violated the First Amendment of the Constitution. Defendants argued that the computer code was protected speech and that the DMCA prohibition of dissemination of DeCSS therefore violated the defendants' First Amendment rights. Secondly they contended that the DMCA was unconstitutionally overbroad, chiefly because its prohibition of the dissemination of decryption technology prevented third parties from making fair use of the plaintiffs' encrypted work, and was vague also. They also argued that a prohibition on their linking to sites that made DeCSS available was unconstitutional for much the same reasons. The court recognized that it could not be seriously argued that any form of computer code may be regulated without reference to First Amendment doctrine. The path from idea to human language to source code to object code was a continuum, and, as one moved from one to the other, the levels of precision and, arguably, abstraction increased as did the level of training necessary to discern the idea from the expression. Not everyone could understand each of these forms, but similarly only English speakers could understand English formulations. Those familiar with a particular programming language would understand the source code expression. Some skilled programmers and computer scientists would understand the machine-readable object code. Each form expressed the same idea, albeit in different ways. The First Amendment was not just about a limitation on the ability of government to censor speech in advance. All modes by which ideas could be expressed or, perhaps, emotions evoked - including speech, books, movies, arts and music were within the First Amendment concern. As computer code - whether source or object - was a means of expressing ideas, the First Amendment had to be considered before its dissemination could be prohibited or regulated. In that sense, computer code was covered or, as sometimes was said, "protected" by the First Amendment. That conclusion, however, still left to
CLSR Briefing
the determination of the level of scrutiny to be applied in determining the constitutionality of regulation of computer code. The court found that Congress had enacted the anti-trafficking provision of the DMCA not to suppress particular ideas of computer programmers but to prevent individuals from circumventing technological access control measures. Any impact on the dissemination of programmers' ideas was purely incidental to the overriding concerns of promoting the distribution of copyrighted works in digital form, while at the same time protecting those works from piracy and other violations of the exclusive rights of copyright holders. Congress could regulate content-neutral regulations that incidentally affected expression, including the dissemination of the functional capabilities of computer code. The anti-trafficking provision of the DMCA therefore furthered an important governmental interest, that of protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in the electronic age. The substantiality of that interest was "evident from both the fact that the Constitution specifically empowers Congress to provide for copyright protection and from the significance to our economy of training copyrighted materials. Indeed, the Supreme Court has made clear that copyright protection itself is 'the engine of free expression'. That substantial interest, moreover, is unrelated to the suppression of particular views expressed in copyrighted work. Nor is the incidental restraint on protected expression - the prohibition of trafficking in means that would circumvent controls limiting access to unprotected materials or to copyrighted materials for non-infringing purposes - broader than is necessary to accomplish Congress' goals of preventing infringement and promoting the availability of content in digital form".
Prior Restraint The court went on to wrap up its judgment by rejecting arguments that injunctive relief against dissemination of DeCSS was barred by the prior restraint doctrine based on the maxim that: "Any system of prior restraints of expression comes to a court bearing a
heavy presumption against its constitutional validity." Further claims of overbreadth in the legislation of 'vagueness', in that the terms employed by the statute were not understandable to persons of ordinary intelligence, were also disposed of. The court was also content for the DMCA to regulate links created for the purpose of disseminating technology that enabled a user to circumvent access controls on copyrighted works. Although links were crucial to the development of the 'information superhighway' and made the Web unique, the potential chilling effect of DMCA liability could not completely immunize Web site operators from all actions for disseminating circumvention technology.The other concern - that a liability was based on a link to another site simply because the other site happened to contain DeCSS or some other circumvention technology in the midst of other perfectly appropriate content - was recognized. The offence under the DMCA was offering, providing or otherwise trafficking in circumvention technology. An essential ingredient was a desire to bring about the dissemination. Hence a strong requirement of that forbidden purpose was an essential prerequisite to any liability for linking. The court concluded that the plaintiffs had established clear and convincing evidence that the defendants had linked to sites posting DeCSS knowing that it was a circumvention device. An anti-linking injunction on these facts did not damage the First Amendment, nor did it chill the activities of Web site operators dealing with different materials as they could be held liable only on a compelling showing of deliberate evasion of the Statute. Permanent declaratory relief was therefore granted. Editor's Note: The Register of Copyrights has now published the final rule referred to in the case above, designating the classes of copyrighted works that will be subject to exemption from the prohibition against circumvention of technological control measures under the DMCA. Under the ruling, two classes of work are exempt: 1. compilations consisting of lists of Web sites blocked by filtering software applications; 2. literary works, including computer programs and databases, protected by access control mechanisms that
fail to permit access because of malfunction, damage or obsolescence. Lynn Bradley of the American Library Association has criticized the ruling on behalf of librarians, arguing that the ruling will threaten the ability of the public to quote from digital materials because access to them is restricted by technological measures such as passwords or encryption. The ruling - Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies; Final Rule, 27 October 2000 - can be found on the library of the Congress Web site. The ruling by the Register of Copyrights has also been criticized by Rep. Rick Boucher. In a statement he said: "I regret the decision of the Library of Congress, acting upon the recommendation of the Register of Copyrights, to reject the recommendations of the Administration, concerned members of Congress, universities and libraries in announcing a decision that does not protect traditional fair use rights. This disappointing decision has moved our nation one step closer to a 'pay-per-use' society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers. In crafting Section 1201(a)(1) of the Digital Millennium Copyright Act, Congress sought to preserve the principle of 'fair use' that has served our nation so well for more than a century. Unfortunately, based on the advice of the Register of Copyrights, the Librarian of Congress has announced his decision to limit the ability of ordinary consumers in most cases to circumvent electronic security measures for the purposes of exercizing their non-infringing fair use rights. Consequently, any person who circumvents a technological protection measure to gain access to information to which he has a fair use right will be guilty of a crime." Rep Boucher went on to say that he hopes that Congress will re-calibrate the DMCA to balance "more evenly the interests of copyright owners and information consumers".
Domain companies files law suit against ICANN RegLand Inc., based in Texas, has filed a law suit against Internet Corporation
65
of making the UK the best place in the world to do business electronically. Rolling out Fixed Wireless Access services is vital to achieving this goal. These two chances of spectrum could complement the services already offered to small business, homes and teleworkers. " Editor's Note: A consultation document: Consultation on 3.4GHz Fixed Wireless Access Spectrum was published in November 1999. The current consultation will seek to confirm the results of that analysis. Further information from Radiocommunications Agency Web site at:
UNITED STATES Permanent injunction issued in DVD decryption software case Universal City Studios Inc. et al v Reimerdes, No. 00 Civ. 0277 (S.D.N.Y, 17 August 2000) The District Court for the Southern District of New York has ruled that the Digital Millennium Copyright Act (DMCA) of 1998 was violated when software designed to decrypt copyrighted motion pictures for home use on DVDs was posted on the Internet along with links to other Web sites upon which the software could be found. The action was brought by eight major US motion picture studios that distribute many of their copyrighted films for home use on Digital Versatile Disks (DVDs). They protect these motion pictures from copying by using an encryption system called CSS. Such DVDs could only be viewed on players and computer drives equipped with licence technology that permitted the devices to decrypt and play but not copy the films. In 1999, computer hackers devised a computer program called DeCSS that circumvented the CSS protection system and allowed such protected films to be copied and played on devices that lacked the licensed decryption technology. The DeCSS software was posted on the defendants' Web site making it readily available to much of the world. The plaintiffs promptly sued under the Digital Millennium Copyright Act (DMCA) to enjoin the defendants from posting DeCSS and to prevent them from electronically 'linking' their site to others that also posted DeCSS. The
defendants response was to increase their efforts to link their Web site to others, thereby continuing to make DeCSS available. The defendants argued that the DMCS should not apply to their conduct, mainly because the Act, so applied, could prevent those wishing to gain access to technologically protected copyright works to make fair - noninfringing - use of them from doing so. Defendants argued that software products such as their own would be needed to make fair use of technologically protected works possible. They argued that technological access control measures would have the capacity to prevent fair uses of copyrighted works as well as foul or illegitimate use of such works. The effect on the plaintiffs of the defendants' action depended to an extent upon the ease with which DeCSS decrypted the plaintiffs' motion pictures, the quality of the resulting product, and the convenience with which decrypted copies might be transferred or transmitted. In fact , the court found that decryption of a CSS protected DVD was only the beginning as the file would be very large and would need a compression utility to reduce the decrypted film files to a manageable size. Such technology existed and enabled a DeCSS decrypted DVD to be compressed satisfactorily to 650 MB. This would enable a writeable CD-ROM to hold such a file. Network transmission of a decrypted motion picture raised more difficult issues because a 650 MB file was large and would take some time to transmit. Many home computers had modems that could only transmit at the rate of 56 Kilobits per second, whereas business users might utilize transfer rates of 7MB per second. Students in study bedrooms could transmit at 10MB and large institutions, such as universities and major companies, often had networks with backbones rated at 100MB per second. Transmission times from 3 to 20 minutes and upward to 6 hours were therefore possible. The result was that DeCSS was a "free, effective and fast means of decrypting the plaintiffs' DVDs and copying them to computer hard drives". The implications for the plaintiffs were that the availability of DeCSS required them either to tolerate increased piracy of their motion pictures or expend resources to develop and implement a replacement system, unless the availability of De CSS was terminated. The availability of
decryption software and the capacity to distribute motion pictures on DVD, both on CD-ROMs and via the Internet, threatened to reduce the revenue going to studios from the sale and rental of DVDs. The focus of the case was Section 1201 of the DMCA which created two anti-circumvention provisions. The first, which was not at issue, related to the act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work. The second (Section 1201(a)(2)) "supplements the prohibition against the act of circumvention in paragraph (a)(1) with prohibitions on creating and making available certain technologies … developed or advertized to defeat technological protections against unauthorized access to a work". This was the relevant provision as the defendants were accused of posting and linking to other sites their DeCSS decryption software and not of using it themselves to bypass the plaintiffs' access controls. The court found as "inescapable" the fact that (1) CSS was a technological means of controlling access to plaintiffs' copyrighted works; (2) the one and only function of DeCSS was to circumvent CSS, and (3) the defendants offered and provided DeCSS by posting it on their Web site. Whether they did this to infringe or to encourage others to do so did not matter for the purposes of the DMCA. The offering or provision of the program was "the prohibited conduct and it is prohibited irrespective of why the program was written,except to whatever extent motive may be germane to determining whether their conduct falls within one of the statutory exceptions".
Statutory exception Defendants argued that their activities came within several exceptions contained in the DMCA and the Copyright Act, and constituted 'fair use' under the Copyright Act of 1976. The court rejected all these assertions as entirely without merit. Reverse engineering under Section 1202(f) did not apply as the defendants had not confined their conduct to the sole objective of achieving interoperability with another computer program. Their contention that DeCSS was necessary to achieve interoperability between computers running the Linux operating system and DVDs failed. The defendants knew that their
63
CLSR Briefing
software could be used to decrypt and play DVD movies on Windows as well as Linux machines, and they also knew that the decrypted files could be copied like any other computer file. The court also rejected the encryption research defence in Section 1201 (g)(4) since neither of the defendants in the case was involved in good faith encryption research. They had posted their software for all the world to see and their was no evidence that they made any efforts to provide the results of their efforts to the copyright owners. The court also rejected defendants' contention that their actions should be considered exempt under Section 1201(j) of the statute dealing with security testing. The record failed to indicate that the DeCSS software had anything to do with testing computers, computer systems or networks.
aware of the issue at the time and had delayed the effective date of the relevant provision so as to investigate how best to reconcile the provision with fair use concerns. Following that investigation, which was being carried out in the form of a rural-making by the Register of Copyright, the prohibition would not apply to users of particular classes of works who demonstrated that their ability to make non-infringing uses of those works would be effected adversely by Section 1201(a)(1) of the DMCA. The court ruled, therefore, that: "The fact that Congress elected to leave technologically unsophisticated persons who wished to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress' decision contravenes the Constitution.
Linking to sites offering DeCSS Fair use The defendants reliance upon the doctrine of fair use was as laid down and codified in Section 107 of the Copyright Act of 1976. This limited the exclusive rights of a copyright holder by permitting others to make limited use of portions of the copyrighted work for appropriate purposes free of liability for copyright infringement. It was the case that the application of CSS to encrypt a copyrighted motion would require the use of a compliant DVD player to view and listen to the movie. This meant that, for example, the preparation by a film studies professor of a single CD-ROM or tape containing two scenes from different movies so as to illustrate the point in a lecture would be difficult or impossible to undertake without circumvention of the CSS encryption. Based on this, the defendants argued that the DMCA could not properly be construed to make it difficult or impossible for fair use of the plaintiffs' work to take place, and that the statute therefore did not reach their activities which were simply a means to enable users of DeCSS to make such fair uses. The court recognized that this was a significant point and that access control measures such as CSS did involve some risk of preventing lawful as well as unlawful uses of copyrighted material. However, Congress had clearly faced up to and dealt with this question in enacting the DMCA. Congress had been well
64
The plaintiffs' also sought to enjoin the defendants from 'linking' their 2600. com Web site to other sites that made DeCSS available to users. Most Web pages were written in computer languages, chiefly HTM, which allowed the programmer to prescribed the appearance of the Web page on the computer screen, and, in addition, to instruct the computer to perform an operation if the cursor was placed over a particular point on the screen and the mouse then clicked. Programming a particular point on a screen to transfer the user to another Web page when the point, referred to as a hyperlink, was clicked is called linking. The Statute made it unlawful to offer, provide or otherwise traffic in described technology (S.1201(a)(2)). This anti-trafficking applied where an individual presented, held out or made a circumvention technology or device available knowing its nature, for the purpose of allowing others to acquire it. The defendants' actions, in linking to sites that automatically commenced the process of downloading DeCSS upon a user being transferred by defendants' hyperlinked, was the functional equivalent of transferring the DeCSS code to the user themselves. The same applied to hyperlinks that displayed nothing more than the DeCSS code or presented the user only with the choice of commencing a download of DeCSS and no other content.
First Amendment defence The defendants then went on to argue that the DMCA, at least as applied to prevent the public dissemination of DeCSS, violated the First Amendment of the Constitution. Defendants argued that the computer code was protected speech and that the DMCA prohibition of dissemination of DeCSS therefore violated the defendants' First Amendment rights. Secondly they contended that the DMCA was unconstitutionally overbroad, chiefly because its prohibition of the dissemination of decryption technology prevented third parties from making fair use of the plaintiffs' encrypted work, and was vague also. They also argued that a prohibition on their linking to sites that made DeCSS available was unconstitutional for much the same reasons. The court recognized that it could not be seriously argued that any form of computer code may be regulated without reference to First Amendment doctrine. The path from idea to human language to source code to object code was a continuum, and, as one moved from one to the other, the levels of precision and, arguably, abstraction increased as did the level of training necessary to discern the idea from the expression. Not everyone could understand each of these forms, but similarly only English speakers could understand English formulations. Those familiar with a particular programming language would understand the source code expression. Some skilled programmers and computer scientists would understand the machine-readable object code. Each form expressed the same idea, albeit in different ways. The First Amendment was not just about a limitation on the ability of government to censor speech in advance. All modes by which ideas could be expressed or, perhaps, emotions evoked - including speech, books, movies, arts and music were within the First Amendment concern. As computer code - whether source or object - was a means of expressing ideas, the First Amendment had to be considered before its dissemination could be prohibited or regulated. In that sense, computer code was covered or, as sometimes was said, "protected" by the First Amendment. That conclusion, however, still left to
CLSR Briefing
the determination of the level of scrutiny to be applied in determining the constitutionality of regulation of computer code. The court found that Congress had enacted the anti-trafficking provision of the DMCA not to suppress particular ideas of computer programmers but to prevent individuals from circumventing technological access control measures. Any impact on the dissemination of programmers' ideas was purely incidental to the overriding concerns of promoting the distribution of copyrighted works in digital form, while at the same time protecting those works from piracy and other violations of the exclusive rights of copyright holders. Congress could regulate content-neutral regulations that incidentally affected expression, including the dissemination of the functional capabilities of computer code. The anti-trafficking provision of the DMCA therefore furthered an important governmental interest, that of protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in the electronic age. The substantiality of that interest was "evident from both the fact that the Constitution specifically empowers Congress to provide for copyright protection and from the significance to our economy of training copyrighted materials. Indeed, the Supreme Court has made clear that copyright protection itself is 'the engine of free expression'. That substantial interest, moreover, is unrelated to the suppression of particular views expressed in copyrighted work. Nor is the incidental restraint on protected expression - the prohibition of trafficking in means that would circumvent controls limiting access to unprotected materials or to copyrighted materials for non-infringing purposes - broader than is necessary to accomplish Congress' goals of preventing infringement and promoting the availability of content in digital form".
Prior Restraint The court went on to wrap up its judgment by rejecting arguments that injunctive relief against dissemination of DeCSS was barred by the prior restraint doctrine based on the maxim that: "Any system of prior restraints of expression comes to a court bearing a
heavy presumption against its constitutional validity." Further claims of overbreadth in the legislation of 'vagueness', in that the terms employed by the statute were not understandable to persons of ordinary intelligence, were also disposed of. The court was also content for the DMCA to regulate links created for the purpose of disseminating technology that enabled a user to circumvent access controls on copyrighted works. Although links were crucial to the development of the 'information superhighway' and made the Web unique, the potential chilling effect of DMCA liability could not completely immunize Web site operators from all actions for disseminating circumvention technology.The other concern - that a liability was based on a link to another site simply because the other site happened to contain DeCSS or some other circumvention technology in the midst of other perfectly appropriate content - was recognized. The offence under the DMCA was offering, providing or otherwise trafficking in circumvention technology. An essential ingredient was a desire to bring about the dissemination. Hence a strong requirement of that forbidden purpose was an essential prerequisite to any liability for linking. The court concluded that the plaintiffs had established clear and convincing evidence that the defendants had linked to sites posting DeCSS knowing that it was a circumvention device. An anti-linking injunction on these facts did not damage the First Amendment, nor did it chill the activities of Web site operators dealing with different materials as they could be held liable only on a compelling showing of deliberate evasion of the Statute. Permanent declaratory relief was therefore granted. Editor's Note: The Register of Copyrights has now published the final rule referred to in the case above, designating the classes of copyrighted works that will be subject to exemption from the prohibition against circumvention of technological control measures under the DMCA. Under the ruling, two classes of work are exempt: 1. compilations consisting of lists of Web sites blocked by filtering software applications; 2. literary works, including computer programs and databases, protected by access control mechanisms that
fail to permit access because of malfunction, damage or obsolescence. Lynn Bradley of the American Library Association has criticized the ruling on behalf of librarians, arguing that the ruling will threaten the ability of the public to quote from digital materials because access to them is restricted by technological measures such as passwords or encryption. The ruling - Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies; Final Rule, 27 October 2000 - can be found on the library of the Congress Web site. The ruling by the Register of Copyrights has also been criticized by Rep. Rick Boucher. In a statement he said: "I regret the decision of the Library of Congress, acting upon the recommendation of the Register of Copyrights, to reject the recommendations of the Administration, concerned members of Congress, universities and libraries in announcing a decision that does not protect traditional fair use rights. This disappointing decision has moved our nation one step closer to a 'pay-per-use' society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers. In crafting Section 1201(a)(1) of the Digital Millennium Copyright Act, Congress sought to preserve the principle of 'fair use' that has served our nation so well for more than a century. Unfortunately, based on the advice of the Register of Copyrights, the Librarian of Congress has announced his decision to limit the ability of ordinary consumers in most cases to circumvent electronic security measures for the purposes of exercizing their non-infringing fair use rights. Consequently, any person who circumvents a technological protection measure to gain access to information to which he has a fair use right will be guilty of a crime." Rep Boucher went on to say that he hopes that Congress will re-calibrate the DMCA to balance "more evenly the interests of copyright owners and information consumers".
Domain companies files law suit against ICANN RegLand Inc., based in Texas, has filed a law suit against Internet Corporation
65