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BRIEF OF PROFESSORS
YOCHAI BENKLER AND LAWRENCE LESSIG
AS AMICI CURIAE IN SUPPORT OF APPELLANT

The undersigned respectfully submit this brief amicus curiaein support of

Appellant.

Preliminary Statement

CSS is a technical scheme designed to prevent copying of DVD movies.

DeCSS is a software tool intended to disable CSS under certain circumstances. The

lower court held that while CSS robs users of “the First Amendment

protections . . . embodied in the . . . latitude for scholarship and comment

traditionally afforded by fair use,” Harper & Row Publishers, Inc., v. Nation

Enterprises, 471 U.S. 539, 560 (1985) (“Harper & Row”), Section 1201(a)(2) of

the Copyright Act, introduced by the Digital Millennium Copyright Act

(“DMCA”) (the “antidevice provision”) could properly be applied to prohibit

defendant Corley’s distribution of DeCSS.

As applied by the lower court, the antidevice provision is unconstitutional.

Based on the lower court’s factual findings of the extent to which CSS burdens

traditional rights of fair use, we respectfully submit that the antidevice provision

cannot be applied to a tool—DeCSS—that permits users to reclaim these First

Amendment protections embodied in traditional copyright law. As the court below

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found, “[b]y prohibiting the provision of circumvention technology, the DMCA

fundamentally altered the landscape.”

Universal City Studios, Inc. v. Reimerdes,

111 F. Supp. 2d 294, 323 (S.D.N.Y. 2000). This legislative “re-landscaping”

effectively eliminates precisely those contours of traditional copyright law that

allow it to dwell in harmony with the First Amendment. This Congress may not do.

The court below found that “the CSS encryption of DVD movies, coupled

with the characteristics of licensed DVD players, limits [fair] uses absent

circumvention of CSS.” Id., at111 F. Supp. 2d at 338. Indeed, “certain uses that

might qualify as ‘fair’ for purposes of copyright infringement—for example, the

preparation by a film studies professor of a single CD-ROM or a tape containing

two scenes from different movies in order to illustrate a point in a lecture on

cinematography…—would be difficult or impossible absent circumventionof the

CSS encryption.” Id., at 322 (emphasis added). Surprisingly, although the court

properly acknowledged that the fair use doctrine “has been viewed by courts as a

safety valve that accommodates the exclusive rights conferred by copyright with

the freedom of expression guaranteed by the First Amendment,” id., and found that

“Congress elected to leave technologically unsophisticated persons who wish to

make fair use of encrypted copyrighted works without the technical means of

doing so,” id., at 324, it set aside these conclusions to hold that the antidevice

provision did not violate the First Amendment.

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Thus, even though the antidevice provision effectively eliminates fair use for

most users of digitized works, the court concluded that the DMCA is congruent

with the First Amendment. It reached this surprising result because it erroneously

treated the Appellant’s challenge as an overbreadth challenge, 111 F. Supp. 2d at

336-37. The court reasoned that since Corley himself has not been frustrated by

CSS in, for example, quoting from a video in instructional materials, his argument

must raise the rights of others. Under its overbreadth analysis, this led the court to

adopt an unduly restrictive view of the implications of its findings about the effects

of CSS on fair use for the constitutionality of the antidevice provision.

This case, however, does not raise an overbreadth challenge. Corley raises

his own right to distribute materials that the DMCA cannot constitutionally

prohibit. He claims that the speech-restrictive implications of banning

DeCSS—given the particular characteristics of DeCSS and of the particular

protection scheme it decrypts—render the prohibition of DeCSS unconstitutional.

If DeCSS cannot constitutionally be prohibited by the DMCA, then Corley cannot

constitutionally be prohibited from distributing it.

By contrast, an “overbreadth” challenge is one in which “an individual

whose own speech or expressive conduct may validly be prohibited or sanctioned

is permitted to challenge a statute on its face because it also threatens others not

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before the court—those who desire to engage in legally protected expression.”

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). But again, Corley

complains that his own freedom has been restricted, not the speech of some third

party. His objection no more raises the rights of others than would the objection of

a distributor of a constitutionally-protected radical pamphlet prosecuted for

distributing a pamphlet that he did not himself write or read.

Given the lower court’s finding that prohibiting DeCSS made it “difficult or

impossible” for technically unsophisticated users to quote directly from as central a

cultural medium as film, the antidevice provision cannot be applied to bar the

dissemination of DeCSS unless doing so would further an important government

interest by means no more restrictive than necessary. See Turner Broadcasting

System, Inc. v. FCC, 512 U.S. 622, 662 (1994) (“Turner I”).1The existence of a

statutory scheme that relies on less restrictive copy-protection mechanisms to solve

a similar problem in the context of digital audio recording devices, 17 U.S.C.

§1001 et. seq., a scheme that Congress failed to consider, is strong indication that a

less restrictive means that Congress could have used does exist. See Denver Area

1Amici express no opinion here as to the position taken by the appellant and other amici that the
proper standard of review is strict scrutiny, because the antidevice provision is a content-based
regulation of speech—software. Our analysis assumes that the antidevice provision will be
judged by the more lenient standard that the court below used—that which is applicable to
content-neutral speech regulations—and explains why even under that standard the anti-device
provision of the DMCA is unconstitutional as applied to prohibit DeCSS. Our argument applies
a fortioriif the Court accepts the proposition that the proper standard is strict scrutiny.

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Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 757 (1996)

(“Denver”). Ignoring this less restrictive means, Congress instead chose to extend

absolute legal protection even to the most extreme copy-protection

mechanisms—like CSS. Such mechanisms absolutely eliminate fair uses of works

embodied in digital media, and can even prevent access to public domain materials

embodied in such media. This Congress cannot do consistent with its obligation

under the First Amendment to refrain from burdening speech unnecessarily.

Interests of Amici

Amici submit this brief as professors who specialize in the relationship of

information policy and intellectual property to constitutional law. We write

because we believe our expertise may aid the court in considering a particular

perspective on this case. We focus primarily on the effects of this ruling not on

computer engineers or on web-based publishers, but on the millions of regular

users who are not computer professionals, and whose ability to express themselves

in creative and meaningful ways is severely and unnecessarily undermined by the

antidevice provision as applied by the court below. We have no personal interest

in the outcome of this case. The parties have consented to our filing this brief.