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18D digital media used for copying;
federal vs state law
1909 Act: Not applicable
1947 Act: Not applicable
1976 Act: Effective 1992: §§1001-1010; effective 1998: also §§1201-1205
CFR: § 201.27 Initial notice of distribution of digital audio recording devices or media;
§ 201.40 Exemption to prohibition against circumvention.
“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. We affirm.”
Corley’s challenge was focused on “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. … Congress targeted … 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,’…
“In November 1999, Corley posted a copy of the decryption computer program ‘DeCSS’ on his web site, https://www.2600.com (‘2600.com’). 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.”
After losing in lower court, “Corley … 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.”
“In September 1999, Jon Johansen, a Norwegian teenager, collaborating with two unidentified individuals he met on the Internet, reverse-engineered a licensed DVD player designed to operate on the Microsoft operating system, and culled from it the player keys and other information necessary to decrypt CSS. The record suggests that Johansen was trying to develop a DVD player operable on Linux, an alternative operating system that did not support any licensed DVD players at that time. In order to accomplish this task, Johansen wrote a decryption program executable on Microsoft’s operating system. That program was called, appropriately enough, ‘DeCSS.’
“If a user runs the DeCSS program (for example, by clicking on the DeCSS icon on a Microsoft operating system platform) with a DVD in the computer’s disk drive, DeCSS will decrypt the DVD’s CSS protection, allowing the user to copy the DVD’s files and place the copy on the user’s hard drive. The result is a very large computer file that can be played on a non-CSS-compliant player and copied, manipulated, and transferred just like any other computer file.”
DeCSS is charged to violate “subsection 1201(a)(1)(A), the anti-circumvention provision. This provision prohibits a person from ‘circumventing a technological measure that effectively controls access to a work protected under [Title 17, governing copyright].’”
In §1201(a)(2), the Court found that “[t]o ‘circumvent a technological measure’ is defined, in pertinent part, as ‘to descramble a scrambled work … or otherwise to … bypass … a technological measure, without the authority of the copyright owner.’ Id. §1201(a)(3)(A).”
With regards to the argument that CSS would “lock up” works that eventually would enter the public domain so that they cannot be decrypted at that time, the Court ruled: “There is not even a claim, much less evidence, that any plaintiff has sought to prevent copying of public domain works, or that the injunction prevents the defendants from copying such works. As Judge Kaplan noted, the possibility that encryption would preclude access to public domain works ‘does not yet appear to be a problem, although it may emerge as one in the future.’”
With regards to free speech being thwarted, the Court found:
“A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which ‘in this context requires … that the means chosen do not “burden substantially more speech than is necessary to further the government’s legitimate interests.”’”
The Court validated the new law on the basis of changes which had taken place:
“There was a time when copyright infringement could be dealt with quite adequately by focusing on the infringing act. If someone wished to make and sell high quality but unauthorized copies of a copyrighted book, for example, the infringer needed a printing press. The copyright holder, once aware of the appearance of infringing copies, usually was able to trace the copies up the chain of distribution, find and prosecute the infringer, and shut off the infringement at the source.
“In principle, the digital world is very different. Once a decryption program like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of decrypting and perfectly copying plaintiffs’ copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every recipient to do the same. They likewise are capable of transmitting perfect copies of the decrypted DVD. The process potentially is exponential rather than linear.
“… Here, dissemination itself carries very substantial risk of imminent harm because the mechanism is so unusual by which dissemination of means of circumventing access controls to copyrighted works threatens to produce virtually unstoppable infringement of copyright. In consequence, the causal link between the dissemination of circumvention computer programs and their improper use is more than sufficiently close to warrant selection of a level of constitutional scrutiny based on the programs’ functionality… .
“It is true that the Government has alternative means of prohibiting unauthorized access to copyrighted materials. For example, it can create criminal and civil liability for those who gain unauthorized access, and thus it can be argued that the restriction on posting DeCSS is not absolutely necessary to preventing unauthorized access to copyrighted materials. But a content-neutral regulation need not employ the least restrictive means of accomplishing the governmental objective. It need only avoid burdening ‘substantially more speech than is necessary to further the government’s legitimate interests.’ [internal quotation and citation omitted.] The prohibition on the defendants’ posting of DeCSS satisfies that standard.”
Cases Summarized in Other Sections
|Goldstein vs California (launch this) had the Supreme Court ruling on whether a state could have stricter anti-piracy laws than passed by Congress for the nation as a whole.|
From the Code of Federal Regulations, Title 37, §201.27 Initial notice of distribution of digital audio recording devices or media:
“(a) General. This section prescribes rules pertaining to the filing of an Initial Notice of Distribution in the Copyright Office as required by section 1003(b) of the Audio Home Recording Act of 1992, Public Law 102563, title 17 of the United States Code, to obtain a statutory license to import and distribute, or manufacture and distribute, any digital audio recording device or digital audio recording medium in the United States.”
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© 2007 David P. Hayes