Editor’s Note:

This is a working copy of a brief on the current Copyright Law from the DEOS Listserv. The outcome threatens to significantly reduce access to information. It adds a fifth ring of liability if the site is indirectly linked to a site with a copyright infringement.  Peter Jaszi provided the following introduction on the Listserv:

The attached document is the penultimate draft of a brief prepared by Ann Beeson of the ACLU, with contributions from various hands (including Pam Samuelson and -- to a much lesser extent -- myself) arguing (among other things) the constitutional infirmity of Judge Kaplan's decision in the 2600.com DeCSS case (Universal v. Remeirdes) in light of the first amendment. The brief will be filed with the Second Circuit court of Appeals in connection with the appeal of that case. It is not being circulated for potential DFC sign-on, but so that individual member organizations can consider whether they might wish to join on their own behalf. The deadline is soon -- close of business on the 23rd. Signons and questions should be addressed to Ann Beeson: ABEESON@aclu.org.

 

Amicus Brief

By Ann Beeson

Introduction

The First Amendment has long been recognized as a necessary limitation on copyright law. [i]   Any expansion of copyright protection must survive careful constitutional scrutiny to ensure that creative expression is fostered rather than stifled by the grant of additional rights to copyright holders. [ii]   The Digital Millennium Copyright Act (DMCA) represents an unprecedented expansion of copyright law.  To comprehend its scope, and the First Amendment problems it presents, it is helpful to conceptualize copyright protections as consisting of concentric rings of liability to copyright holders. [iii]   At the core is direct liability for copyright infringement. [iv]   In the next ring are the indirect liability doctrines of contributory infringement and vicarious liability that courts have read into copyright law through case-by-case adjudications.  The DMCA adds a third ring of indirect liability for circumventing technology designed to protect copyrights, [v] and a fourth ring for trafficking in circumvention technology. [vi]   To these, the district court decision in this case would add yet a fifth ring of indirect liability based on mere links to sites containing circumvention technology.  As the circles of indirect liability expand outward, the amount of speech in the public domain -- speech freely available for use by others -- shrinks to the detriment of First Amendment values. [vii]

While courts have imposed indirect liability for copyright infringement in certain circumstances, any expansion of indirect liability presents grave constitutional problems if imposed without regard to (1) whether there were any underlying acts of infringement; (3) whether any relationship exists between the actual infringers and the person the plaintiff seeks to hold indirectly liable; and, most importantly, (3) whether a fair use or other free speech defense applies.  Yet, in Universal City Studios, Inc. v. Corley, a journalist was held liable under the DMCA as a trafficker in circumvention technology for posting and linking to a computer program known as DeCSS even though there is no proof that the posting of DeCSS has caused any underlying acts of infringement of DVD movies in which the plaintiffs own copyrights.  Nor is there proof that this defendant either substantially contributed to copyright infringement or had any ability to control the acts of any users of DeCSS, as previous indirect liability standards would require.  Even more fundamentally, the district court in this case held that there is no fair use or First Amendment defense to a charge under the anti-trafficking provision of the DMCA.

Section I of this brief explains why courts must carefully scrutinize any expansion of liability to copyright holders to prevent encroachments on speech protected by the First Amendment.  Section II argues that the anti-circumvention and anti-trafficking provisions of the DMCA must be narrowly construed to comply with constitutional constraints, or else must be struck down as unconstitutional.  Section III argues that the communicative act of linking to sites containing circumvention technology does not violate the anti-trafficking provisions of the DMCA as properly interpreted, and that an extension of liability to links would be inconsistent with the First Amendment.

I. Copyright Law Has Historically Recognized the Need for Careful First Amendment Balancing.

A. The First Amendment Requires That Any Expansion of Liability to Copyright Holders Survive Careful Scrutiny.

The DMCA's anti-circumvention and anti-trafficking provisions punish entirely new categories of non-infringing, protected speech, and create the third and fourth rings of liability outlined above.  Congress believed that this expansion of liability was necessary to prevent "massive piracy" that might be facilitated by “the ease with which digital works can be copied and distributed worldwide virtually instantaneously.”  Sen. Rep. at 8.  The anti-circumvention provision was intended to “encourage[] technological solutions … by enforcing private parties’ use of technological measures with legal sanctions for circumvention ….” Id. at 11.  The provision would “supplement” the copyright law by promoting the use and effectiveness of technological measures.  See id. at 9.  The anti-trafficking provisions would, in turn, “supplement[] the prohibition against the act of circumvention . . . with prohibitions on creating and making available certain technologies … developed or advertised to defeat technological protections against unauthorized access to a work.”  House Rep. at 18.

This expansion clearly implicates the First Amendment.  As the district court recognized, the circumvention technology prohibited by the anti-trafficking provision is itself speech.  [ADD QUOTE]; see also Bernstein; Junger.  The anti-trafficking provision also inhibits access to lawful speech by outlawing the technology needed to obtain that speech.  In addition, the anti-circumvention provision of the DMCA on its face prevents access to protected, noninfringing speech because it prohibits circumventing access to any speech protected by access control technology regardless of whether the user has a free speech right to access it. Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972) ("It is now well established that the Constitution protects the right to receive information and ideas."); see also Lamont v. Postmaster General, 381 U.S. 301 (1965); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

Given their direct application to protected speech, there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to the DMCA provisions.  Reno v. ACLU ("ACLU I"), 521 U.S. at 870.  Even if Congress' asserted interest is compelling, [viii] the First Amendment inquiry does not end.  ACLU I, at __; Simon & Schuster; see also Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases , 48 Duke L.J. 147, 167-68 (1998) ("Enjoining or punishing noninfringing speech [in a copyright action] would thus be an unconstitutional restraint of First Amendment protected expression.").  To survive constitutional scrutiny, the anti-circumvention and anti-trafficking provisions of the Constitution must be narrowly tailored to achieve a compelling government interest. [ix]  

B. The Fair Use Doctrine Has Traditionally Served to Ensure that Copyright Laws Are Narrowly Tailored in Accordance with the First Amendment.

Traditionally, the fair use doctrine has ensured that copyright laws are consistent with the First Amendment.  See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560  (1985) (suggesting the constitutional dimension of the fair use doctrine).  One of the constitutional roots of fair use was set forth by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (citing U.S. Const., Art. I, sec. 8):  “[S]ome opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science and useful Arts….’"  See also id. at 577, quoting Stewart v. Abend, 495 U.S. 207, 236 (1990) (fair use “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is intended to foster”) (emphasis added).  A second constitutional source of fair use is the First Amendment.  Making fair use of another author’s work is often necessary to engage in critical commentary, news reporting, and other free speech-related activities that serve First Amendment goals.  See, e.g., Campbell v. Acuff-Rose Music, Inc. 114 S.Ct. 1164 (1994) (fair use parody as a form of critical commentary); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) (fair use to reproduce portions of article in critical biography of Howard Hughes); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F. 2d 1148 (9th Cir. 1986) (fair use to reproduce parody of Jerry Falwell in protest mailing about the parody); Fisher v. Dees, 794 F.2d 432 (9^th Cir. 1986) (fair use to parody popular song in humor magazine); Triangle Pub., Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5^th Cir. 1980) (fair use to reproduce cover of TV Guide in comparison of competing guide); Italian Book Corp. v. American Broadcasting Co., 458 S. Supp. 65 (S.D.N.Y. 1978) (newsworthy broadcast of street festival allowed fair use of music); Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D. N.H. 1978) (fair use to reuse portions of political song in political commentary); Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968) (fair use to reproduce frames of Zapruder film in order to explain author’s theory of Kennedy assassination).

As the District Court below observed, fair use “has been viewed by the courts as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment.”  Universal City Studios, Inc. v. Corley, 111 F.Supp.2d 294, 321 (S.D.N.Y. 2000).  Various Supreme Court and Court of Appeals’ decisions confirm this.  See, e.g., Harper & Row v. Nation Enterprises, Inc. 471 U.S. 539 (1985) (recognizing the constitutional importance of fair use in mediating between copyright and the First Amendment interests, although ruling against a news magazine had not made fair use in publishing key excerpts of a forthcoming memoir); Nihon Keizai Shimbun v. Comline Business Data, 166 F.3d 65, 74 (2d Cir. 1999) (First Amendment concerns are protected by fair use).  Without fair use or a similar limiting principle in copyright law, this law would frequently clash with the First Amendment.  See, e.g., Paul Goldstein, Copyright and the First Amendment, 70 Colum. L. Rev. 983 (1970); Yochai Benkler, Free As the Air to Common Use:  First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999).

It has generally been unnecessary for courts to rely explicitly on the constitutional basis for fair use because of its longstanding doctrinal home in American copyright law.  See, e.g., [older cases].  When Congress finally codified fair use in the Copyright Act of 1976, it identified several categories of favored uses, i.e., for “criticism, comment, news reporting, teaching…, scholarship, [and] research,” all of which are free speech-related uses of copyrighted works.  When codifying fair use, Congress made clear that the newly adopted fair use provision was meant “to restate the present judicial doctrine of fair use, not to change, narrow or enlarge it in any way.”  See H.R. Rep. No. 94-1476, p. 66 (1976); S. Rep. No. 94-473, p. 62 (1975).  The legislative history also evidences that Congress did not intend to “freeze” the concept of fair use and expected that courts would continue to evolve fair use principles in the course of common law adjudications, “especially during a period of rapid technological change,” as they had done for many decades.  Id. 

As anticipated, courts have frequently invoked fair use to mediate tensions between interests of copyright owners and subsequent users of copyrighted works in cases involving new technologies that posed challenging questions for copyright law.  See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. (1984) (time-shift copying of television programs held fair use); Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9^th Cir. 1992) (fair use to reverse engineer computer program code for legitimate purpose of getting access to information necessary to make a compatible program, furthering constitutional purposes of copyright); Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. 964 F.2d 965 (9^th Cir. 1992), cert. denied, 507 U.S. 985 (1993)(fair use for users to employ tool to alter game displays).  See also, e.g., RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9^th Cir. 1999)(space-shift copying of music also fair use).

The most prominent role of fair use has lain in the central core of the concentric circles of copyright liability set forth above, that is, as a limitation on the exclusive rights of copyright owners when they have claimed direct infringement by a defendant.  But fair use is also a crucial defense in indirect liability cases.  One proper defense in a case involving claims of contributory infringement or vicarious liability is that the underlying acts which the defendant facilitated or could have controlled are, in fact, fair uses.  See, e.g., Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965 (9^th Cir. 1992) (ruling, in part, that Galoob was not contributorily liable for copyright infringement because users of Galoob’s game genie were fair users).  Fair uses are, moreover, among the noninfringing uses of a technology that may be deemed “substantial” so as to limit the power of copyright owners to impose indirect liability on the manufacture and sale of an infringement-enabling technology.  See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (movie studios failed to establish contributory infringement liability by Sony because Betamax machines had substantial noninfringing uses, including the enablement of fair use copies of television programs for later viewing).  Indeed, free speech concerns are perhaps greater in the indirect liability context because third parties are even more likely to be chilled by the possibility of liability than direct users of copyrighted material.  [cite to article re ISP liability]

II. As Interpreted by the District  Court, the Anti-Circumvention and Anti-Trafficking Provisions of the DMCA Fail the Careful Scrutiny Required of Statutes That Infringe Protected Speech.

A. To Survive Constitutional Scrutiny, the Anti-Circumvention and Anti-Trafficking Provisions Must Contain a Fair Use or Free Speech Defense.

As explained above, the anti-circumvention and anti-trafficking provisions of the DMCA expand indirect liability to create a new third and fourth ring of persons liable to copyright holders.  The provisions give the force of law to encryption technology that prevents unauthorized access to copyrighted works -- regardless of whether a user has a fair use right to access the work.  The constitutional interests embodied in fair use, however, do not evaporate merely because a copyright owner uses technological wrappers to protect copies of its works.  Just as Congress could not repeal the fair use provision of U.S. copyright law without creating serious conflicts with the First Amendment, it cannot accomplish the same result indirectly by banning all technologies through which fair uses can be made.  Thus, as the case law discussed above makes clear, in order to pass constitutional muster, the DMCA provisions must, at the very least, be narrowly tailored through recognition of a fair use or fair-use like defense. [x]

There is reason to think that, properly interpreted, Congress left some latitude for fair uses in the anti-circumvention provision.  Section 1201(a)(1)(A) is limited in scope by seven specific limitations that privilege circumvention of access controls for, among other things, reverse engineering, encryption research, and computer security testing. [xi]   17 U.S.C. sec. 1201 (f), (g), and (j).  But as the National Academy of Sciences recently concluded, there may be more legitimate reasons for circumventing technical measures used by copyright owners to protect their works than is explicitly provided for in section 1201.  See “The Digital Dilemma:  Intellectual Property in the Information Age,” at 174-75; see also Appendix G for other criticisms of section 1201 [???].  Congress left a potential loophole to safeguard additional protected uses in Sections 1201(c)(1) and (c)(4).  Section 1201(c)(1) provides that nothing "shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."  In addition, Section 1201(c)(4) provides that "[n]othing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products."  Amici believe that courts can and should employ these subsections to excuse some acts of circumvention seemingly covered by 1201(a)(1)(A) where necessary to enable fair uses or other free speech-related uses of copyrighted works.  For example, a purchaser of a mass-marketed copy of a DVD movie may need to bypass CSS in order to make fair use of that copy in the course of preparing a critical commentary about it.  Even the district court acknowledged that the range of potential fair uses of DVD movies was “remarkably varied,” 111 F.Supp.2d at 338, and opined that technically sophisticated persons would be able to make fair uses of DVD movies, id. at 322 (presumably by circumventing CSS by writing an equivalent program to DeCSS, although a strict interpretation of section 1201 would forbid this).

Yet the district court specifically held that there was no fair use defense to the anti-trafficking provisions.  Amici agree that the anti-trafficking provisions are more difficult to reconcile with constitutionally protected fair use and free speech interests.  Only three of the seven specific exceptions to 1201(a)(1)(A) explicitly authorize the making of a tool to accomplish privileged circumventions.  If interpreted literally, that means that while users may have a right to circumvent for specific purposes, they will be unable to exercise that right.  There will be no tools available to assist them in circumvention because the anti-trafficking provisions make those tools illegal.  Did Congress intend to create four meaningless privileges?  In addition, unlike the anti-circumvention provisions, Congress failed to include a rulemaking procedure to ensure that the anti-trafficking provisions do not interfere with fair uses or other noninfringing uses of copyrighted works.  Contrary to the district court's holding, however, amici believe that this Court can read 1201(c)(1) and (c)(4) as limitations to ensure that the anti-trafficking provisions also comply with the First Amendment.  If the Court concludes that the statutory provisions provide no free speech defenses to anti-trafficking, then amici believe that the Constitution requires the Court to read such a defense into the statute.

In this case, it is clear that there are many legitimate expressive free-speech-related uses of DeCSS that must be protected under 1201(c) or the Constitution.  Carnegie Mellon Professor Touretsky posted different modes of expression of DeCSS for educational purposes.  Columbia Law School Professor Jane Ginsburg linked to sites where DeCSS was posted in the course of teaching her copyright course.   Protesters wore T-shirts bearing portions of the DeCSS  source code, and appellant Corley is a journalist that used DeCSS in his newspaper coverage.

To apply a fair use or free speech defense to the anti-trafficking provision does not leave copyright holders without a remedy for the manufacture and distribution of technologies that lack legitimate uses.  See, e.g., Sony of Am. v. Universal City Studios, 464 U.S. 417 (1984).  It merely requires that copyright holders prove that circumvention technology is incapable of substantial noninfringing uses before a court may impose liability for trafficking in it.  Courts in past cases have been able to distinguish between genuine and pretextual claims of substantial noninfringing uses.  See, e.g., Sega v. MAPHIA.

B. To Survive Constitutional Scrutiny, the Anti-Trafficking Provision Must Also Require Proof of Harm and a Direct Relationship Between the Infringer and the Defendant.

To be narrowly tailored, the third and fourth rings of liability imposed by the DMCA -- for circumvention of access controls and trafficking in circumvention technology -- must also include the traditional safeguards recognized by courts before imposing any indirect liability for copyright infringement:  1) proof of infringement, and 2) some direct relationship between the infringer and the defendant.  To explain why, we begin with a review of the doctrine of indirect liability for copyright infringement.  The federal copyright statute includes no provision providing for liability based on the acts of another.  Rather, indirect liability for copyright infringement is a judge-made doctrine.  Courts have traditionally recognized two forms, vicarious liability and contributory liability.

Vicarious liability for copyright infringement has its roots in the tort doctrine of respondeat superior.  [cite to law review articles]  If infringement occurred, and a third-party defendant had the right and ability to supervise the infringer and a direct financial interest in the infringement, liability may be imposed.  Nimmer on Copyright, Sec. 12.04[A][1]; see Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1964) (holding department store vicariously liable for copyright infringement of record sales concessonaire); Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162-63 (2d Cir. 1971) (holding manager liable for infringing performances by musician).

The separate but related doctrine of contributory infringement is an outgrowth of enterprise liability.  Nimmer on Copyright, Sec. 12.04[A][2]; [cite to law review articles].  Under contributory infringement rules, a third party is liable only if 1) an infringement actually occurred; 2) the third party had knowledge of the infringement; 3) the third party "induced, caused or materially contributed" to it; and 4) the defendant "substantially participated in the users’ infringement" (which has been interpreted as requiring that the defendant was "acting in concert" with the direct infringers).  Nimmer 12-73; see Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1371 (N.D. Cal. 1995); Demetriades v. Kaufmann, 690 F. Supp. 289, 293 (S.D.N.Y. 1988).

Though the specific tests vary somewhat, both forms of indirect liability require proof of two essential elements (in addition to allowing a fair use defense) before liability may be imposed on a defendant who did not directly infringe a copyright:  1) actual infringement; and 2) a direct relationship between the infringer and the third party.  Any indirect liability for copyright infringement has the potential to chill protected speech, because third parties are likely to avoid any connection with even potentially infringing material in order to avoid liability.  [cite to law review article about third party liability for ISPs].  But requiring proof of harm and a direct relationship between the infringer and the third party helps to minimize the unnecessary chilling of speech, and thus ensures that liability is narrowly tailored.

The anti-circumvention and anti-trafficking provisions of the DMCA lack these necessary safeguards for imposing indirect liability.  It is a telling fact that appellees were unable to identify a single instance of infringement brought about by DeCSS notwithstanding the presence of hundreds, if not thousands, of copies of this program on publicly accessible websites, even after it was taken down from appellant Corley’s site.  Nor did they show that Corley was either supervising actual infringers or acting in concert with them.  Especially since trafficking in circumvention technology represents an entirely new category of indirect liability, these additional elements of proof ensure that the provision is narrowly tailored as required by the First Amendment.  To impose liability for trafficking on appellant Corley consistent with the Constitution, then, the Court should remand to the district court for additional fact-finding to determine whether appellees can prove infringement and a direct relationship between appellant and that infringement; if so, as discussed above, the court must also consider whether appellant is nevertheless entitled to a fair use or free speech defense.

C. If Section 1201(a)(2) Lacks the Constitutional Safeguards Outlined Above, It Must Be Voided On Its Face.

If this Court finds that the anti-trafficking provision is incapable of the narrowing construction outlined above, it must be voided on its face.  [CITE narrowing construction cases]  Without free speech safeguards the expansion of indirect liability into a fourth ring of liability for trafficking in circumvention technology restricts beyond constitutional limits speech that was clearly in the public domain and protected by the First Amendment prior to the DMCA.  See Benkler at __; Nimmer at 739 (noting the "conscious contraction of user rights" by Congress).  As interpreted by the district court, the anti-trafficking provision operates as an effective ban on a variety of expressive technologies capable of substantial noninfringing uses.  Unless narrowly construed, such an effective ban on protected speech violates the First Amendment.  See Reno v. ACLU (striking down Communications Decency Act because it operated as an effective ban on speech protected for adults).  DeCSS is, of course, only one of countless technologies covered by the statute.  [INSERT OTHER EXAMPLES?]  In addition, the district court's interpretation has had and will continue to have a substantial chilling effect on the development of new technologies capable of important noninfringing uses.  See, e.g., Matt Richtel, Web Music Battle Heats Up, New York Times, Aug. 22, 2000, at C-6 (reporting declaratory relief action filed to determine lawfulness of Gnutella file-sharing software); Damien Cave, A Hacker Crackdown?, Salon Magazine, at http://salon.com/tech/feature/2000/08/07/yoink_napster/print.html (Aug 7, 2000) ("There is evidence that the mere threat of legal hassles is convincing some programmers to lay off their grand plans."); [CITE to articles specifically about DeCSS??.]

III. The District Court’s Injunction Prohibiting the Use of Links to Web Sites with Circumvention Technology Violates the First Amendment.

A. Linking is Expressive, Communicative Activity Protected By the First Amendment.

The web is analogous to “a vast library including millions of readily available and indexed publications.”  ACLU v. Reno, 521 U.S. 844, 853 (1997).  The unique quality of this “library” comes from the boundless volumes of information available on the Internet.  Never before have individuals so easily been able to “publish” information.  ACLU v. Reno (“Reno I”), 521 U.S. 844, 853 (1997) (“Any person or organization with a computer connected to the Internet can ‘publish’ information.”).  Never before has it been so simple to reach “a world-wide audience of millions of readers, viewers, researchers, and buyers.”  Reno v. ACLU (“Reno I”), 521 U.S. 844, 853 (1997).  The Supreme Court recognized and praised this “vast democratic fora of the Internet.”  Reno I at 868-69.

If the web is a vast library, links serve as both its card catalog and its digital footnotes.  Web publishers use links to refer users to related documents.  A “link” in a web page allows the user to move from one web site to another that contains the related document by “clicking” on specified text or graphics on the web page using a computer mouse.  Rather than requiring a reader to go to a library or bookstore to locate the referenced document, a link allows a web user to click on the link to access the related document wherever in the world it is located.  Linking effectively ties the entire web together into a single interconnected body of knowledge made up of all the individually published web pages of millions of different users around the world.  “The ability to link from one computer to another, from one document to another across the Internet regardless of its status or physical location, is what makes the Web unique.”  ACLU v. Reno (“Reno II”), 31 F.Supp.2d 473, 483 (E.D.Pa. 1999) aff’d 217 F.3d 162 (3d Cir. 2000).

Journalists routinely use links to refer users to information posted on other websites in the course of covering stories on controversial subjects of public importance.  Educators also provide links to information posted on other websites for purely pedagogical reasons.  To aid her law students in understanding the controversy over DeCSS, for example, Professor Jane Ginsburg has linked to sites where DeCSS can be found.  Professors Jessica Litman and Pam Samuelson have also routinely hosted links to many sites, including cites with DeCSS code, in the teaching of their classes.  Similarly, Harvard University recently boasted a link to a homepage with DeCSS code. 

The uniqueness of links arises not, as the district court suggests, from their "functionality."  Links are no more "functional" than a dewey decimal citation.  The reader decides whether to follow the link.  The creator of the link has no control over the content on linked site, or over whether the reader decides to follow the link.  Rather, the uniqueness of links arise from the efficiency with which they allows users, if they choose, to locate and retrieve related documents.  Thus, links are clearly expression entitled to the highest degree of First Amendment protection.

B. The District Court Erred By Interpreting the Anti-Trafficking Provision To Prohibit Mere Links to Circumvention Technology.

Section 1201(a)(2) provides that “[n]o person shall … offer to the public, provide, or otherwise traffic in any” circumvention technology.  The district court found that this provision "is implicated where one presents, holds out, or makes a circumvention technology or device available, knowing its nature, for the purpose of allowing others to acquire it.” 111 F.Supp. 2d 325.  The court further found that maintaining a link to a web page containing the DeCSS code “is the functional equivalent of transferring the DeCSS code to the user….” Id.  The court then enjoined the defendants not just from directly distributing DeCSS to the public, but also from linking to other sites that did.  Because linking to a site containing DeCSS is the “functional equivalent” of directly presenting or making DeCSS available to the user, the court reasoned, linking to a DeCSS site violates the DMCA anti-trafficking provision.

But the “functional equivalent” of something is not the thing itself.  As discussed above, Section 1201(a)(2) already reflects a dramatic extension of liability beyond the behavior sought to be prevented: copyright infringement.  The court below, by imposing liability for linking to circumvention technologies,  has created an additional fifth ring of indirect liability.  The text of the anti-trafficking provision should be interpreted cautiously, with attention to both the words of the text and the evidence of congressional intent, to avoid further encroachment on protected speech.  Certainly, the language of the statute does not require the expansive reading that the district court gave to it.   Significantly, moreover, the legislative history of Section 1201(a)(2) and (b)(1) contains no hint that Congress intended it the provision to extend to links.  And Congress had ample opportunity to demonstrate this intent: the Senate Judiciary, House Judiciary, and House Commerce Committees all issued lengthy reports on the DMCA, as did the Conference Committee and Congressman Howard Coble, the Chairman of the House Judiciary Subcommittee on Courts and Intellectual Property and the manager of the DMCA.  In none of these detailed documents is there even a suggestion that Section 1201(a)(2)’s trafficking provision should apply to links to circumvention technology.

In sum, there is no evidence that Congress intended to construct a fifth ring of liability for links, nor is there any evidence that a breach of the other four rings is so imminent as to require a further expansion of liability.  In the absence of such evidence, there is no compelling justification for the court below’s expansive interpretation of  trafficking to include linking to a DeCSS site.  Indeed, as discussed below, this expansive interpretation steers the decision onto thin ice constitutionally.  These hazards can be avoided altogether by interpreting the trafficking provision literally, without applying it to “functional equivalents.”

C. Imposing Liability for Mere Links to Circumvention Technology Violates the First Amendment.

The district court's extension of the anti-trafficking statute to impose liability for merely providing links to sites containing circumvention technology violates the First Amendment.  Mere links between sites do not establish a relationship sufficient for imposing either vicarious or contributory liability when a link references a site with circumvention technology.  See discussion supra at __.  In the vast majority of instances, there is no relationship whatsoever between sites connected through links.  There is no ability for a linker to supervise or control content on the linked site.  Neither do web sites connected through links "act in concert" any more than the authors of this brief "act in concert" with Nimmer by including a reference to his work.  In addition, even if the third and fourth rings of expanded liability for circumvention and trafficking are constitutional, which is far from clear, to weaken the causal link between infringement and liability even further would clearly impose liability beyond constitutional limits.

Although the district court recognized that liability for links was constitutionally suspect, the court's analysis ignored both established indirect liability doctrine and the need to accommodate free speech concerns.  Rather than requiring proof of harm and a direct relationship between the defendant and an infringer, the district court imposed liability on anyone who links to circumvention technology with knowledge and for the purpose of disseminating the technology. [xii]   The knowledge and intent requirements in this “heightened standard” fail to resolve the constitutional problems inherent in imposing liability for links.  For example, any journalist or academic who links to a site where DeCSS is posted as part of news coverage about the controversy is likely to a) know that DeCSS is located at that site, b) know that certain motion picture studios consider it illegal and that Judge Kaplan has ruled that it is illegal, and c) create the link with the intent of enabling readers to understand the controversy which will inevitably result in the dissemination of the program to some degree. [xiii]

The chilling effect of the district court's ruling has already begun, and has extended beyond simply linking to DeCSS.  Prior to the ruling, The New York Times, CNN, the Village Voice, CNET and many other news publications all linked to sites containing DeCSS as part of their coverage of this case.  Many of those organizations have now removed their links.  Few news organizations will find the distinction between linking “for the purpose of disseminating a technology” and linking for other purposes to be sufficiently clear to be sure the organization would be safe if it published a link to a program such as DeCSS.  Some copyright professors have also removed their links to DeCSS for fear of liability.  [EXAMPLES?]

Assuming that the Court overcomes other constitutional problems with the anti-trafficking provision, amici believe that third-party liability for trafficking could be imposed in some narrow circumstances.  If plaintiffs could prove that a defendant had "the right and ability to supervise" and a "direct financial interest" in the manufacture or offering by another of circumvention technology that had actually infringed their copyrights, then vicarious liability may be appropriate.  While links would never create a per se violation under this theory, links might be relevant evidence in establishing the ability to supervise and financial interest.  For example, a parent software development company could have a web site advertising its services, and could promote its software developers by offering a link to a developer's site that contains circumvention technology.  Similarly, if the creator of a web site was the agent of an illegal trafficker to whom the web site linked, the linker could be liable.  But amici emphasize that the existence of a link alone would never be sufficient proof for establishing indirect liability.  Unlike the district court's test, imposing indirect liability for trafficking only where vicarious liability or agency is established provides the balance necessary under the First Amendment to prevent unnecessary chilling of protected speech.

 

Conclusion

In summary, to remedy the constitutional defects in the district court's opinion and order, amici urge this Court to:

1) interpret 1201(a)(2) to require a fair use or free speech defense, proof of infringement, and a direct relationship between the infringer and the defendant;

2) reverse the district court's ruling and remand with instructions to consider whether defendant may be held liable under the interpretation of 1201(a)(2) outlined in #1 above;

3) in the alternative, should the court hold that the statute does not permit the interpretation outlined in #1 above, the court should rule that 1201(a)(2) is unconstitutional on its face; and

4) reverse the district court's ruling that 1201(a)(2) may be applied to prohibit mere links to sites containing circumvention technology.

End Notes