The Constitutional Standard of Review
As the court below properly found, the antidevice provision of the DMCA
burdens speech. From the perspective of users, however, this burden is not
censorial—the feminist film critic and the fundamentalist preacher are equally
disabled by the provision from illustrating their criticisms of Hollywood.2
Because
it burdens speech without discrimination, amicimaintain, and the court below
agreed, that the provision must be tested against the standard for content neutral
regulation of speech set by the Supreme Court in United States v. O'Brien, 391
U.S. 367 (1968), and more recently restated in Turner I.
The most significant Supreme Court case to articulate the borders between
copyright law and the First Amendment is Harper & Row. In Harper & Row, the
Supreme Court was asked to create a special “first amendment” exception to
copyright law for news reporting that used copyrighted materials. The Court
refused. There was no need, the Court held, to create any specialFirst Amendment
exception to the scope of copyright law “[i]n view of the First Amendment
2From the perspective of computer professionals and web-publishers, the antidevice provision as
applied here to prohibit linking and source code distribution, among other things, could be
characterized as content-based regulation of their professional language. From this perspective,
the antidevice provision prohibits speaking in this language about how one might decrypt
copyrighted materials, but not, for example, about how to decrypt employee files stored on
employers’ systems. Such a differentiation based on Congress’ decision that the former is a
more dangerous use of professional language than the latter should be subject to strict scrutiny.
protections already embodied in the Copyright Act's distinction between
copyrightable expression and uncopyrightable facts and ideas, and the latitude for
scholarship and comment traditionally afforded by fair use. . . .”471 U.S. at 560.
First Amendment interests limiting the scope of copyright are, in effect, built into
copyright law already. And thus, the Court saw no need to provide a second line of
Harper & Row simply underscored the Supreme Court’s express reliance upon
these core privileges that copyright law retains for users—in particular fair use and
access to materials in the public domain like facts and ideas—to allow it to dwell
in peace with the First Amendment.
Cf. Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 582-83 (1994) (“Campbell”) (evaluating eligibility of a potentially
infringing work to be treated as a parody and a fair use by quoting with approval
the statement that “First Amendment protections do not apply only to those who
speak clearly, whose jokes are funny, and whose parodies succeed,” quoting
Yankee Publishing Inc. v. News America Publishing, Inc., 809 F. Supp. 267, 280
(SDNY 1992) (Leval, J.)). This understanding of the relationship between First
Amendment interests and “fair use” was acknowledged by the district court below.
The issue in this case is whether Congress, through the enactment of the
antidevice provision as applied to the facts in this case, has so limited the practical
possibility of making privileged use of digitized materials that it undermines “the
First Amendment protections . . . embodied in the Copyright Act. . . .” to the point
of rendering it unconstitutional.
Content-neutral laws that burden speech must (1) serve an important
government interest (2) in a manner no more restrictive than necessary.
512 U.S. at 662. To fulfill the first prong of the test, it must be shown “that the
recited harms are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way.”Id., at 664. The second prong
requires that “the means chosen do not ‘burden substantially more speech than is
necessary to further the government's legitimate interests.’”Id., at 662.
The lower court’s findings suggest that the interest involved in this case is to
secure for the Hollywood studios the revenue stream they derive from the home
distribution market, while moving from an analog distribution medium —
videotape — to a digital distribution medium — DVD. 111 F. Supp. 2d at 309-11.
The state interest in furthering this private interest is to implement one half of the
copyright bargain, in which the government grants private parties a limited
monopoly over expression to “promote Progress,” in this case by making “digital
networks safe places to disseminate and exploit copyrighted works.” See S. Rep.
No. 105-190, 105thCong. 2d Sess. 2 (1998). Assuming that the interest served by
the antidevice provision is at least important, even if not compelling,3the question
for this Court is whether Congress’s means were well measured to this end. Or,
alternatively, whether the means were too drastic for the end, "sacrific[ing]
important First Amendment interests for too speculative a gain." Denver, 518 U.S.
The Antidevice Provision, As Applied to DeCSS, Dramatically Departs from
Copyright’s Traditional Balance Between Owners’ Limited Rights and
Users’ Privileges
In the court below, appellees took the position “that the anti-circumvention
laws are intended to create a legal barrier to unauthorized access, as a separate and
distinct right from copyright infringement.”Plaintiff’s Memorandum of Law in
Opposition to Cross-Motion to Vacate the Preliminary Injunction, at 1.
“Congress,” they argued, “intended to provide copyright holders with an entirely
3It is important to remember, as the Court considers the expansive nature of the restrictions
created by the antidevice provision, that the lower court found that DVD revenues account for
about 14% of the studios’ revenue stream, 111 F. Supp. at 310 n.69, and that home video
distribution more generally accounts for 40%. id., at 311 n.70. Even if there were absolutely no
technological protection for DVDs, this would not diminish revenues from theatre and broadcast
distribution, from merchandising, and from home distribution to the millions of users who would
rather own or rent a legal copy than spend hours making a bootleg. Nowhere in the legislative
history is there an evaluation—as opposed to an assertion—of the actual need for added
protection. Nowhere, for example, is there an evaluation of why it is that the software industry
has dealt with the availability of perfect digital copying from its inception, but has in its brief
period of existence become a substantially larger industry than the movie industry. See 1997
Economic Census, Information, Subject Series, Establishment and Firm Size, Table 1 (software
industry gross receipts over $61 billion; movie and video industries $44 billion).
new level of protection for their copyrighted works in the digital age—independent
of long established protection against copyright infringement.”Id.at 7.
The DMCA as interpreted below indeed sweeps aside the nuanced structure
of the Copyright Act, with its limited grant of rights, 17 U.S.C. § 106, and its grant
of varied use privileges, 17 U.S.C. §§ 107-112, 117. Under this interpretation,
encryption of copyrighted works embodied solely in digital media, as most works
in a few short years will certainly be, will render the complex balance of the
Copyright Act obsolete. Owners will be able to encrypt works they distribute, and
the antidevice provision of the DMCA will make it impossible for users legally to
make any use of those works—privileged or otherwise—without the express
“From the infancy of copyright protection, some 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 . . . .’” Campbell, 510
U.S. at 575. So too does securing access to other components of the public domain,
like facts and ideas, id., at note 5. “Fair use is not a grudgingly tolerated exception
to the copyright owner's rights of private property, but a fundamental policy of the
copyright law.”Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev.
1105, 1135 (1990). Making it almost impossible, as the antidevice provision does,
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