Universal City Studios Inc. v. Corley

• Decision Date: 01 May 2001
• Docket Number: Docket No. 00-9185,PLAINTIFFS-APPELLEES,DEFENDANTS-APPELLANTS,METRO-GOLDWYN-MAYER
• Parties: (2nd Cir. 2001) UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION,STUDIOS INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME WARNER ENTERTAINMENT COMPANY, L.P., DISNEY ENTERPRISES INC., TWENTIETH CENTURY FOX FILM CORPORATION,, v. ERIC CORLEY, ALSO KNOWN AS EMMANUEL GOLDSTEIN, AND 2600 ENTERPRISES INC.,, UNITED STATES OF AMERICA, INTERVENOR. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 429

273 F.3d 429 (2nd Cir. 2001)

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, v. ERIC CORLEY, ALSO KNOWN AS EMMANUEL GOLDSTEIN, AND 2600 ENTERPRISES INC., DEFENDANTS-APPELLANTS, UNITED STATES OF AMERICA, INTERVENOR.

Docket No. 00-9185

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 1, 2001

Finally Submitted: May 30, 2001

Decided: November 28, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Kathleen Sullivan, Stanford, Cal. (Martin Garbus, Edward Hernstadt, Frankfurt Garbus Kurnit Klein & Selz, New York, N.Y.; Cindy A. Cohn, Lee Tien, Robin Gross, Elec. Frontier Found., San Francisco, Cal., on the brief), for Defendants-Appellants.

Charles S. Sims, New York, N.Y. (Leon P. Gold, Jon A. Baumgarten, Carla M. Miller, Matthew J. Morris, Proskauer Rose, New York, N.Y., on the brief), for Plaintiffs-Appellees.

Daniel S. Alter, Asst. U.S. Atty., New York, N.Y. (Mary Jo White, U.S. Atty., Marla Alhadeff, Asst. U.S. Atty., New York, N.Y., on the brief), for Intervenor United States of America.

(Prof. Peter Jazsi, Wash. College of Law, American Univ., Wash., D.C.; Prof. Jessica Litman, Wayne State Univ., Detroit, Mich.; Prof. Pamela Samuelson, Univ. of Cal. at Berkeley, Berkeley, Cal.; Ann Beeson, Christopher Hansen, American Civil Liberties Union Foundation, New York, N.Y., submitted a brief in support of Defendants-Appellants, for amici curiae American Civil Liberties Union et al.).

(Andrew Grosso, Wash., D.C., submitted a brief in support of Defendants-Appellants for amicus curiae ACM Committee on Law and Computing Technology).

(James S. Tyre, Culver City, Cal., submitted a brief in support of Defendants-Appellants, for amici curiae Dr. Harold Abelson et al.).

(Edward A. Cavazos, Gavino Morin, Cavazos, Morin, Langenkamp & Ferraro, Austin, Tex., submitted a brief in support of Defendants-Appellants, for amici curiae Ernest Miller et al.).

(Arnold G. Rheinhold, Cambridge, Mass., submitted a brief amicus curiae in support of Defendant-Appellant 2600 Enterprises, Inc.).

(Prof. Julie E. Cohen, Georgetown Univ. Law Center, Wash., D.C., submitted a brief in support of Defendants-Appellants, for amici curiae intellectual property law professors).

(Jennifer S. Granick, Stanford, Cal., submitted a brief in support of Defendants-Appellants, for amici curiae Dr. Steven Bellovin et al.).

(Prof. Yochai Benkler, N.Y. Univ. School of Law, New York, N.Y.; Prof. Lawrence Lessig, Stanford Law School, Stanford, Cal., submitted a brief amici curiae in support of Defendants-Appellants).

(David A. Greene, First Amendment Project, Oakland, Cal.; Jane E. Kirtley, Erik F. Ugland, Silha Center for the Study of Media Ethics and Law, Univ. of Minn., Minneapolis, Minn.; Milton Thurm, Thurm & Heller, New York, N.Y., submitted a brief in support of Defendants-Appellants, for amici curiae Online News Ass'n et al.).

(Prof. Rodney A. Smolla, Univ. of Richmond School of Law, Richmond Va., submitted a brief in support of Plaintiffs-Appellees, for amici curiae Prof. Erwin Chemerinsky et al.).

(David E. Kendall, Paul B. Gaffney, Williams & Connolly, Wash., D.C.; David M. Proper, National Football League and NFL Properties, New York, N.Y.; Thomas J. Ostertag, Office of the Commissioner of Baseball, New York, N.Y., submitted a brief in support of Plaintiff-Appellees, for amici curiae Recording Ind. Ass'n of Am. et al.).

(Jeffrey L. Kessler, Robert G. Sugarman, Geoffrey D. Berman, Weil, Gotshal & Manges Llp, New York, N.Y., submitted a brief in support of Plaintiffs-Appellees, for amicus curiae DVD Copy Control Ass'n, Inc.).

Before: Newman and Cabranes, Circuit Judges, and Thompson,^* District Judge.

Jon O. Newman, Circuit Judge

When the Framers of the First Amendment prohibited Congress from making any law "abridging the freedom of speech," they were not thinking about computers, computer programs, or the Internet. But neither were they thinking about radio, television, or movies. Just as the inventions at the beginning and middle of the 20th century presented new First Amendment issues, so does the cyber revolution at the end of that century. This appeal raises significant First Amendment issues concerning one aspect of computer technology--encryption to protect materials in digital form from unauthorized access. The appeal challenges the constitutionality of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1201 et seq. (Supp. V 1999) and the validity of an injunction entered to enforce the DMCA.

Defendant-Appellant Eric C. Corley and his company, 2600 Enterprises, Inc., (collectively "Corley," "the Defendants," or "the Appellants") appeal from the amended final judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, District Judge), entered August 23, 2000, enjoining them from various actions concerning a decryption program known as "DeCSS." Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 346 (S.D.N.Y. 2000) ("Universal II"). The injunction primarily bars the Appellants from posting DeCSS on their web site and from knowingly linking their web site to any other web site on which DeCSS is posted. Id. at 346-47. We affirm.

Introduction

Understanding the pending appeal and the issues it raises requires some familiarity with technical aspects of computers and computer software, especially software called "digital versatile disks" or "DVDs," which are optical media storage devices currently designed to contain movies.¹ Those lacking such familiarity will be greatly aided by reading Judge Kaplan's extremely lucid opinion, Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) ("Universal I"), beginning with his helpful section "The Vocabulary of this Case," id. at 305-09.

This appeal concerns the anti-trafficking provisions of the DMCA, which Congress enacted in 1998 to strengthen copyright protection in the digital age. Fearful that the ease with which pirates could copy and distribute a copyrightable work in digital form was overwhelming the capacity of conventional copyright enforcement to find and enjoin unlawfully copied material, Congress sought to combat copyright piracy in its earlier stages, before the work was even copied. The DMCA therefore backed with legal sanctions the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections. In so doing, Congress targeted not only those pirates who would circumvent these digital walls (the "anti- circumvention provisions," contained in 17 U.S.C. § 1201(a)(1)), but also anyone who would traffic in a technology primarily designed to circumvent a digital wall (the "anti-trafficking provisions," contained in 17 U.S.C. § 1201(a)(2), (b)(1)).

Corley publishes a print magazine and maintains an affiliated web site geared towards "hackers," a digital-era term often applied to those interested in techniques for circumventing protections of computers and computer data from unauthorized access. The so-called hacker community includes serious computer-science scholars conducting research on protection techniques, computer buffs intrigued by the challenge of trying to circumvent access-limiting devices or perhaps hoping to promote security by exposing flaws in protection techniques, mischief- makers interested in disrupting computer operations, and thieves, including copyright infringers who want to acquire copyrighted material (for personal use or resale) without paying for it.

In November 1999, Corley posted a copy of the decryption computer program "DeCSS" on his web site, http://www.2600.com ("2600.com").² DeCSS is designed to circumvent "CSS," the encryption technology that motion picture studios place on DVDs to prevent the unauthorized viewing and copying of motion pictures. Corley also posted on his web site links to other web sites where DeCSS could be found.

Plaintiffs-Appellees are eight motion picture studios that brought an action in the Southern District of New York seeking injunctive relief against Corley under the DMCA. Following a full non-jury trial, the District Court entered a permanent injunction barring Corley from posting DeCSS on his web site or from knowingly linking via a hyperlink to any other web site containing DeCSS. Universal II, 111 F. Supp. 2d at 346-47. The District Court rejected Corley's constitutional attacks on the statute and the injunction. Universal I, 111 F. Supp. 2d at 325- 45.

Corley renews his constitutional challenges on appeal. Specifically, he argues primarily that: (1) the DMCA oversteps limits in the Copyright Clause on the duration of copyright protection; (2) the DMCA as applied to his dissemination of DeCSS violates the First Amendment because computer code is "speech" entitled to full First Amendment protection and the DMCA fails to survive the exacting scrutiny accorded statutes that regulate "speech"; and (3) the DMCA violates the First Amendment and the Copyright Clause by unduly obstructing the "fair use" of copyrighted materials. Corley also argues that the statute is susceptible to, and should therefore be given, a narrow interpretation that avoids alleged constitutional objections.

Background

For decades, motion picture studios have made movies available for viewing at home in what is called "analog" format. Movies in this format are placed on videotapes, which can be played on a video cassette recorder ("VCR"). In the early 1990s, the studios began to consider the possibility of distributing movies in digital form as well. Movies in digital form are placed on disks, known as DVDs, which can be played on a DVD player (either a stand-alone device or a component of a...