16

court below described as an “outbreak epidemic.” 111 F. Supp. 2d at 331-32. As

to digital audio tapes, then, Congress has prevented an epidemic without

eliminating fair use.5

But Congress does not address why the same solution would not have

sufficed for DVDs. Nowhere in the legislative history is there a consideration of

the efficacy or inefficacy of the approach taken vis-à-vis digital audio tapes in 17

U.S.C. § 1001 et. seq. Nowhere is there consideration of whether there was

something special about the music industry that made that solution adequate to

deal with unauthorized copying of digital audio tapes, but inadequate to deal with

copying of other digital media, like DVDs. Nowhere is there any argument about

why the threat of illegal copying of DVD film is any different from the threat of

illegal copying of digital audio tape.6

5Congress supplemented the technical measure with a two percent tax on all digital audio

recording devices, earmarked as a subsidy for copyright owners to make up for the revenue they
could expect to lose from unauthorized copying that would occur thanks to the perfect first-
generation copying that these devices permitted. See 17 U.S.C. § 1004.
6The legislative history is also self-contradictory. The Report of the House Committee on
Commerce observed that the DMCA “would represent an unprecedented departure into the zone
of what might be called paracopyright—an uncharted new domain of legislative provisions
designed to strengthen copyright protection by regulating conduct which traditionally has fallen
outside the regulatory sphere of intellectual property law.” H.R. Rep. 105-551, Part 2, at 24-25.
Its sole response was that “the digital environment poses a unique threat to the rights of
copyright owners, and as such, necessitates protection against devices that undermine copyright
interests. In contrast to the analog experience, digital technology enables pirates to reproduce and
distribute perfect copies of works—at virtually no cost at all to the pirate.”Id.at 25. But the
committee did not describe what made the threat unique, and the final version of the DMCA
plainly contradicts the claim that digital media is unique. In the very same chapter that includes
the antidevice provision, Congress also enacted a provision requiring that all new analog
videotape recorders to include copy protection capabilities. This section also includes an

17

This inconsistent treatment is relevant to the question whether Congress

satisfies the requirements of O’Brien. As in Denver, this Court “can take Congress’

different, and significantly less restrictive, treatment of a highly similar problem at

least as some indication that more restrictive means are not ‘essential’ (or will not

prove very helpful).” Denver, 518 U.S. at 757. In Denver, the Supreme Court was

faced with one statute—the Cable Act of 1992—that resolved the problem of

protecting children from offensive television programming using a very restrictive

combination of legal and technical means, and another statute—the

Telecommunications Act of 1996—that attempted to deal with the same problem

in slightly different media or channels, by a less restrictive combination of law and

technology.

Without passing on the constitutionality of those means, the Court noted that

they were plainly less restrictive. “Where, as here, the record before Congress or

before an agency provides no convincing explanation [for using the more

restrictive means in this context], this Court has not been willing to stretch the

limits of the plausible, to create hypothetical non-obvious explanations in order to

justify laws that impose significant restrictions upon speech.” Id.at 760. See also

antidevice provision to protect those analog copy-prevention mechanisms. See section 1201(k) of
the Copyright Act, codified 17 U.S.C. § 1201(k). The existence of this parallel to the antidevice
provision in the analog context, in which the home video industry has thrived for almost two
decades, suggests that the antidevice provision has little to do with the uniqueness of digital
media. More likely, it is the product of successful manipulation by movie industry lobbyists of
the digital duplication bogeyman to obtain a new right perfectly to control their products.

18

Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 130 (1989)

(considering less restrictive FCC regulations aimed at serving the same purpose as

the challenged legislation as a backdrop to finding that “[t]he congressional record

presented to us contains no evidence as to how effective or ineffective the FCC’s

most recent regulations were or might prove to be”).

A regime that enables end users to make copies and quotations of digitized

materials they legally possess, and responds to the serial copying problem with a

limited prohibition on circumventing serial copying management devices coupled

with, say, a tax on DVD players transferred as subsidies to Hollywood studios,

would plainly be less restrictive than the antidevice provision as interpreted by the

court below, and as applied to prohibit DeCSS.

Stepping into the breach left by Congress, the district court offered three

reasons to support its conclusion that the effects on the fair use privileges of

technologically unsophisticated users did not render the antidevice provision

unconstitutional. First, the court suggested that “anyone wishing to make lawful

use of a particular movie may buy or rent a videotape, play it, and even copy all or

part of it with readily available equipment.”111 F. Supp. 2d at 337. This

argument fails for two reasons. First, the DMCA enacted 17 U.S.C. §1201(k),

which requires all new analog video recorders to include technological means that

prevent copying from analog videotapes or pay transmissions. As physical

19

attrition leads to replacement of analog recorders, it will become as impossible to

quote from videotapes as it is today from DVDs. Second, even in the absence of

§1201(k), digital media are, in the blink of an historical eye, becoming our primary

means of embodying information and cultural goods. Referring users to

yesteryear’s leftovers undervalues the constitutionally protected expressive

interests at stake.

The district court further reasoned that its decision, properly limited to

Corley or to active distributors of circumvention software, would not deter fair

users. See 111 F. Supp. 2d at 338. This response misses the point of the burden

that the antidevice provision places on technologically unsophisticated users. The

problem is not deterrencebut incapacitation. The trouble with the antidevice

provision is not that it deters fair users, but that, as the district court found, it

disables them from making fair uses. By prohibiting the manufacture of devices

that would enable users to make fair uses, the antidevice provision does not simply

chill fair use; it makes it impossible for the majority of users.

Finally, the district court stated, “we do not deal here with ‘pure speech.’

Rather, the issue concerns dissemination of technology that is principally

functional in nature.” 111. F. Supp. 338-39. Whether DeCSSis “pure speech” or

not, however, is irrelevant to the claim that its prohibition substantially and

unjustifiably burdens quotation from film. Without doubt, the quotation of

20

copyrighted speech is speech, and it is the restriction on that that raises the

constitutional question.

Imagine a ten-year-old girl doing her homework on the history of the

Holocaust. She includes in her multimedia paper a clip from Steven Spielberg’s

film, Schindler’s List, in which a little girl in red, the only color image on an

otherwise black-and-white screen, walks through the pandemonium of a

deportation. In her paper, the child superimposes her own face over that of the girl

in the film. The paper is entitled “My Grandmother.”Or imagine a professor of

critical film theory putting together a series of illustrations of sexist or racist

stereotyping in Hollywood movies. Or imagine a law professor who teaches media

law, who offers a short snippet of The Insiderto motivate discussion of the costs

and benefits of commercial media. These and millions of other unsung acts of

individual creativity that rely on common cultural materials are central to

expressive freedom. They are what allow us all to speak to each other using not

only plain text, but also a rich tapestry of the cultural materials within which we

live as members of a community and a culture. And they are precisely the uses

that First Amendment values have traditionally protected through the guarantee of

fair use. The antidevice provision removes that constitutional protection. It is for

this reason unconstitutional.