Cindy A. Cohn (SBN 145997)
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Tel:  (415)436-9333 x 108
Fax: (415) 436-9993

Attorney of Record for Amici Curiae

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
321 STUDIOS,
Plaintiff,
v.
METRO-GOLDWYN-MAYER STUDIOS INC., et al.,
Defendants,
		Case No. C 02-1955 SI

BRIEF AMICUS CURIAE OF ELECTRONIC FRONTIER FOUNDATION, PUBLIC KNOWLEDGE, AND COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY 
IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Date:	April 25, 2003
Time:	9:00 A.M.
Judge:	Hon. Susan Illston	

METRO-GOLDWYN-MAYER STUDIOS INC., et al., 
Counterclaimants,
v.
321 STUDIOS, also known as 321 Studio, LLC; ROBERT MOORE, an individual; ROBERT SEMAAN, an individual; and VICTOR MATTISON, an individual,
Counterclaim Defendants.

TABLE OF CONTENTS
I.	INTEREST OF AMICI	1
II.	ARGUMENT	2
III.	FAIR USE IS A CONSTITUTIONAL VALUE	3
IV.	THE DMCA UNCONSTITUTIONALLY RESTRICTS FAIR USE	4
A.	Section 1201 impermissibly burdens fair use	5
B.	The DMCA was not intended to constrict fair use	6
V.	SECTION 1201’S PROSCRIPTIONS ON CODE AND ITS DISCUSSION VIOLATE THE FIRST AMENDMENT	7
A.	The Corley and Elcom Decisions’ Incorrect Application of Intermediate Scrutiny Conflicts with Turner and Madsen	9
1.	Turner	9
2.	Madsen	13
B.	The Corley and Elcom decisions erred in creating a new category of lesser protected “functional” speech	13
C.	Potential future copyright infringement by third parties cannot justify banning speech.	16
VI.	The DMCA is Susceptible to a Constitutional Interpretation	16
VII.	The Studios Have Engaged in Copyright Misuse Via Technological Measures	17
VIII.	CONCLUSION	20

TABLE OF AUTHORITIES
Cases
Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999)	23
American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) aff'd mem. 475 U.S. 1001 (1986)	18
Bartnicki v. Vopper, 532 U.S. 514 (2001)	19, 20
Bernstein v. Dep't of Justice, 176 F.3d 1132, reh'g en banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999)	1, 9
Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996)	11
Brandenburg v. Ohio, 395 U.S. 444 (1969)	19, 20
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)	7
Central Bank of Denver N.A. v. First Interstate Bank of Denver. N.A., 511 U.S. 164 (1994)	15, 20
City of Ladue v. Gilleo, 512 U.S. 43 (1994)	11, 18
Cohen v. California, 403 U.S. 15 (1971)	17, 18
Denver Area Educational Telecomms Consortium v. F.C.C, 518 U.S. 727 (1996)	14
Direct Sales Co. v. United States, 319 U.S. 703 (1943)	15, 20
Eldred v. Ashcroft, 537 U.S. __, 2003 WL 896627 (2003)	4, 5
Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998)	11
Garrison v. Louisiana, 379 U.S. 64 (1964)	18
In re Napster, Inc. Copyright Litigation, 191 F.Supp.2d 1087 (N.D. Cal. 2002)	23
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)	9, 11
Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir.1990)	23
NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)	20
Practice Management Information Corp. v. American Medical Ass'n,, 
121 F.3d 516 (9th Cir. 1997)	23, 24
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)	10
Riley v. National Federation of the Blind, 487 U.S. 781 (1988)	19
Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980)	19
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)	5
Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622 (1994)	10, 12, 13, 18
Turner Broadcasting Sys., Inc. v. F.C.C., 520 U.S. 180 (1997)	10, 12, 13
United States v. Campa, 679 F.2d 1006 (1st Cir. 1982)	15, 20
United States v. Elcom Ltd., 203 F.Supp.2d 1111 (N.D. Cal. 2002)	passim
United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996)	15
United States v. Superior Growers Supply, Inc., 982 F.2d 173 
(6th Cir. 1992)	15, 20
Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001)	passim
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 
(S.D.N.Y. 2000)	7, 22
Statutes
17 U.S.C. § 106	7
17 U.S.C. § 107	21
17 U.S.C. §112(a)(2)	15
18 U.S.C. § 2	15
Vessel Hull Design Protection Act, 17 U.S.C. §1309	16
Other Authorities
EFF, Unintended Consequences: Four Years Under the DMCA	13
H.R. 1066, 108th Cong. § 5 (2003) (Lofgren)	15
H.R. 107, 108th Cong. § 5 (2003) (Boucher-Doolittle)	15
H.R. 2441	8
H.R. Rep. No. 105-551 (1998)	7, 9
S. 1284	8
Senate Judiciary Comm., S. Rep. 105-190 (1998)	9

Law Review Articles and Treatises
Brett Frischmann & Dan Moylan, The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software, 15 Berkeley Tech.L.J. 865 (Fall 2000)	23
Dan L. Burk, Anti-Circumvention Misuse (2002)	7
David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev., 673 (2000)	14
Dean S. Marks & Bruce H. Turnbull, Technical Protection Measures: The Intersection of Technology, Law, and Commercial Licenses, 22 Eur. Intell. Prop. Rep. 198 (2000)	22
Free Expression Policy Project, "The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom," 33 (2003)	14, 15
Jane C. Ginsburg, Copyright Use and Excuse on the Internet, 24 Colum. VLA J.L. & Arts 1	21
Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1970)	5, 14
Neil Weinstock Netanel, Locating Copyright within the First Amendment Skein, 54 Stan. L. Rev. 1 (2001)	5, 21
Pam Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech. L. J. 519 (1999)	15
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999)	5

I.	INTEREST OF AMICI
Electronic Frontier Foundation (“EFF”) is a nonprofit public interest organization dedicated to protecting civil liberties and free expression in the digital world. Founded in 1990, EFF represents the interests of Internet users both in court cases and in the broader policy debates surrounding the application of law in the digital age.  EFF opposes misguided legislation, initiates and defends court cases preserving individuals’ rights, launches global public campaigns, introduces leading edge proposals and papers, hosts frequent educational events, engages the press regularly, and publishes a comprehensive archive of digital civil liberties information at one of the most linked-to websites in the world, www.eff.org.
EFF has a longstanding interest in ensuring that the Constitutional rights Americans enjoy in the non-digital world are transferred intact into cyberspace.  As counsel in Bernstein v. Department of Justice, EFF established the precedent that computer code is speech protected by the First Amendment. EFF represented Eric Corley, publisher of 2600 Magazine, along with Dean Kathleen Sullivan of Stanford University Law School, in Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
Public Knowledge (“PK”) is a nonprofit advocacy and education organization dedicated to ensuring that intellectual property laws and technology policies promote the interests of the public.  PK works with a wide spectrum of stakeholders to promote the core conviction that some fundamental democratic principles and cultural values – openness, access, and the capacity to create and compete – must be given new embodiment in the digital age.
Computer Professionals for Social Responsibility (“CPSR”) is a mass membership organization of information professionals, academics, researchers, and the interested public.   For over 20 years CPSR has worked to influence decisions regarding the development and use of computers to reflect open and democratic values. As technical experts, CPSR members provide the public and policymakers with realistic assessments of the power and limitations of information and communication technologies. As concerned citizens, CPSR members direct public attention to critical choices in media policy and how those choices affect society.
II.	
ARGUMENT
Anticircumvention imposes a three-fold burden on the public:  It blocks programmers from communicating their work in code; it blocks consumers from making full, fair use of digital media; and it blocks competitors from developing innovative new products around digital entertainment.  The Studios’ efforts to bar 321 Studios from distributing DVD backup programs illustrate all three of these burdens.  But these are burdens this Court can lift with a more careful reading of the law in light of the constitutional interests in free speech and fair use.
The Studios call for an expansive reading of the Digital Millennium Copyright Act’s anticircumvention provisions, 17 U.S.C. § 1201 (“DMCA”), relying heavily on Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) and United States v. Elcom Ltd., 203 F.Supp.2d 1111, 1124 (N.D. Cal. 2002) to defend the DMCA’s constitutionality.  They ignore, however, the different factual circumstances presented in those cases and recent developments that underscore the constitutional import of fair use. 
Amici agree with 321 Studios that if the DMCA is properly construed, the constitutional issues need not be reached here because the statute itself accommodates amici’s speech and fair use interests.  Under the Studios’ interpretation, however, the statute is unconstitutional both on its face and as applied to prevent the distribution of a tool to assist the public in exercising its fair use rights and rights to make noninfringing uses of the content available on DVDs. 
First, Amici argue that the speech rights of the listening and viewing public are at risk if the Studios are permitted unilaterally to set restrictions on the use and fair use of digital content.  As part of copyright’s speech-promoting role, consumers must be able to obtain tools for backup and fair use, enabling them to use digital media in new, creative, and critical ways.  
Second, we argue that the speech rights of programmers and researchers must be protected, including their rights to discuss encryption and decryption methods, in code.  The congressional response to copyright infringement must be narrowly tailored and minimally restrictive on this speech.  The DMCA construction the Studios urge fails First Amendment scrutiny.
Finally, public policy demands that the copyright monopoly not be used to block competitive or complementary innovation.  The Studios’ use and restrictive licensing of technological protection measures, however, goes far beyond any copyright interests.  By employing technological measures such as region coding to constrict use of DVDs, the Studios have forfeited their right to enforce the their copyrights through technological protection.  
321 Studios’ program is not a digital crowbar nor “the electronic equivalent of breaking into a locked room.”  It is a reading lamp or notepad enabling the public to make full use of digital media, and it should be protected as such.
III.	FAIR USE IS A CONSTITUTIONAL VALUE
The Studios rely on dicta in the Corley and Elcom decisions to assert that “[f]air use is not constitutionally based.”  Motion at 18:28.  This assertion, ill-founded even then, has now been squarely rejected by the U.S. Supreme Court in Eldred v. Ashcroft, 537 U.S. __, 2003 WL 896627 (2003).  The Court held the twenty-year extension of copyright terms did not demand strict independent First Amendment scrutiny because it extended “a copyright scheme that incorporates its own speech-protective purposes and safeguards.” slip op. at 28.  Those internal safeguards, as the Court explained in some detail, are found in the idea/expression distinction and fair use.  Because the DMCA’s anticircumvention provision effectively eliminates both, it cannot rely on those counterweights to resist First Amendment scrutiny.
The Eldred Court recognized that copyright monopolies can restrict speech, but upheld the extension not only because copyright’s overall scheme promotes creative expression, but also because its limits allow others to re-use that expression.   When copyright is stretched beyond its historically limited monopolies, however, to enable copyright holders to lock their works against the access necessary to make fair use, the First Amendment claims must be examined anew.  The DMCA fails this heightened First Amendment scrutiny.
Intellectual property law has long been understood as a constitutional bargain that “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand,” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
Accordingly, copyright has always been limited by “safety valves” that prevent copyright owners from unduly restricting others’ freedom to speak, thus protecting our cultural commons.  See Neil Weinstock Netanel, Locating Copyright within the First Amendment Skein, 54 Stan. L. Rev. 1, 4 n. 11 (2001); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999); Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180, 1186-1204 (1970).
Section 1201 dramatically alters “the traditional contours of copyright protection” Eldred, slip op. at 31.  It forecloses most fair use of technologically protected media and it abrogates the idea/expression distinction for technological protection measures.  If read as the Studios advocate, the DMCA would first eliminate the tools necessary to engage in fair use and then forbid discussion of even the ideas behind technological protection measures’ operation, deeming any such discussion a “part thereof” of a circumvention technology.  The courts have not yet considered whether these new expansions of copyright are compatible with the First Amendment in light of the Supreme Court’s enunciation of the clear First Amendment interest in fair use.  This court should take the opportunity to reset the balance.
IV.	THE DMCA UNCONSTITUTIONALLY RESTRICTS FAIR USE
The Studios next claim that fair use is not restricted by the DMCA.  This assertion also fails.  The Studios’ argument rests on the claim that Congress enacted a “fail-safe” for the DMCA in the form of a triennial rulemaking process by the Copyright Office.  Motion 19:23-20:4.  What the Studios fail to tell the court is that the rulemaking process does not reach the tools provisions of the DMCA, §§ 1201(a)(2) and 1201(b)(1).  The Copyright Office has interpreted its mandate as permitting it to exempt only the act of circumvention, and that only as to narrowly constructed “classes of works.”  See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64555, (October 27, 2000) and Notice of Inquiry, 67 Fed. Reg. 63578, (October 15, 2002).   Thus the Copyright Office rulemaking is irrelevant here because it cannot restore the means necessary to effect fair use.
A.	Section 1201 impermissibly burdens fair use
The DMCA’s anticircumvention provisions impinge on fair use in two ways.  First, the Studios employ the novel right of access control to label fair use accesses as “unauthorized,” even to customers in possession of the necessary tools and legitimately obtained media.  Second, the anti-tools provisions of 1201(a)(2) and 1201(b) deny most of the public even the means to exercise their fair use rights in technologically protected media such as DVDs, since they prohibit distribution of the software necessary to excerpt or back-up DVDs.   Together, these restrictions on fair use reach constitutional proportion, depriving the public of its benefit from the creativity that copyright law is intended to promote.
Imposition of a technological protection measure allows a copyright holder to control not only reproduction, public performance, and the other exclusive rights recognized in Section 106, but “access” to the work, (§ 1201(a)(1)), an expansion some commentators have termed “paracopyright.”  Section 1201 has been construed to extend this control past the grant or denial of initial access to a work to the continuing manner in which the work is used.  Yet the most important fair uses are often those undertaken without the authority of the copyright holder: Fair use protects parody and scathing criticism that the copyright holder would not authorize.  See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994) (parody could be fair use despite or even because of “the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions”).  For this reason, the copyright holder’s denial of permission has not been a decisive factor in traditional fair use analysis.
Copyright holders must not be permitted to circumvent this limit with technology.   Their current practice has been to do just that, however.  By claiming that only licensed player devices grant “authorized” access, and by strictly limiting the conditions on which they will offer licenses, copyright holders have blocked a wide range of fair and non-infringing uses.
Moreover, when copyright owners have encrypted works such that the ordinary consumer is unable to gain access to or copy them unaided, the public is left to depend on third-party device makers for the ability to make fair use.  The anti-device provisions of 1201, unless they permit device-makers to rely on their end-users’ fair use rights, take those rights further out of consumers’ reach.  Both the Corley and Elcom courts recognized this effect, but both failed to respond to its constitutional implications.   See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 324 (S.D.N.Y. 2000) (“Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so.”); Elcom, 203 F.Supp.2d at 1124 (“Nothing within the express language would permit trafficking in devices designed to bypass use restrictions in order to enable a fair use, as opposed to an infringing use.”)  Even if the effect of wiping out fair use was precisely what Congress intended, which the full legislative history contradicts, the Constitution does not give Congress that option.
B.	The DMCA was not intended to constrict fair use
The full congressional record, however, provides ample evidence that Congress did not intend through Section 1201 to eliminate fair or noninfringing use.  First and most importantly, the statute itself states: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” 1201(c)(1).  As the Registrar of Copyrights said:
[T]his legislation clarifies existing law and expands specific exemptions for laudable purposes.  These specific exemptions are supplemented by the broad doctrine of fair use.  Although not addressed in this bill, fair use is both a fundamental principle of the U.S. copyright law and an important part of the necessary balance on the digital highway.  Therefore the application of fair use in the digital environment should be strongly reaffirmed.”
The legislative history further indicates that Congress thought it was banning “black boxes,” devices designed to remove technological protection measures and which could be used to facilitate unauthorized reproduction and distribution of digital copyrighted works, not eliminating fair use in a sneaky, indirect manner.  The key congressional committees reviewing the DMCA expressly stated that the chief harm against which the anti-circumvention provisions were aimed was that of purpose-built tools designed to remove technological protection measures and thereby to facilitate easy reproduction and distribution of economically valuable digital copyrighted works.
Prohibiting fair-use-enabling tools along with tools of infringement is a remarkably overbroad response to Congress’s stated purpose of combating piracy.  The constitutional import of fair use gives the Court ample reason to read Section 1201 less expansively.  Independent speech interests in the code and description of technological measures point in the same direction.
V.	SECTION 1201’S PROSCRIPTIONS ON CODE AND ITS DISCUSSION VIOLATE THE FIRST AMENDMENT
The Studios grudgingly admit, as they must, that the computer software at issue here is protected expression under the First Amendment.  Motion 20:10-11.  Indeed, starting from the Bernstein case brought by amici EFF, every court that has considered the issue has held that computer programs are entitled to First Amendment protection. Corley, 273 F.3d at 445-50; Elcom, 203 F.Supp.2d at 1126-27; Junger v. Daley, 209 F.3d 481, 484 (6th Cir. 2000); Bernstein v. Dep’t of Justice, 176 F.3d 1132, 1141-42, reh’g en banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999).  Yet in embracing the reasoning of the Corley and the Elcom decisions, the Studios urge this Court to adopt a flawed First Amendment analysis that has been roundly criticized by scholars.
The Studios urge this Court to adopt two fundamentally incorrect findings of Corley and Elcom, neither of which First Amendment jurisprudence supports.  First, that although computer code is “speech” within the meaning of the First Amendment, it is subject to greater regulation than other speech because of its “functional” capability to be executed by a computer as well as read by a human eye.  Motion 21:14-15 (citing Elcom, 203 F.Supp.2d at 1128, Corley, 273 F.3d at 454).   Second, that although not a single incident of copyright infringement had been demonstrated in those cases (the same is true here), the statutory banning of the code was sufficiently narrowly tailored to satisfy the First Amendment because the speed and scope of the Internet create the potential for such harm.  Elcom, 203 F.Supp.2d at 1129-30; Corley, 273 F.3d at 454-55.
These two decisions conflict with governing First Amendment precedent.  Even assuming that the government advances a content-neutral interest imposing liability (preventing theft of intellectual property), the law fails the heightened scrutiny required of content-neutral speech restrictions under Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) ("Turner I"); and Turner Broadcasting Sys., Inc. v. F.C.C., 520 U.S. 180 (1997) ("Turner II").  Here, since the Studios seek an injunction, the request also fails the especially heightened scrutiny required of content-neutral injunctions on speech under Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). 
The Studios’ analysis further conflicts with governing precedent by treating the publication of computer code on the Internet as “functional” speech subject to diminished First Amendment protection.  This creation of a new subcategory of less protected speech conflicts with Reno v. American Civil Liberties Union, 521 U.S. 844, 970 (1997), which held that the Internet is a fully protected medium of speech and that regulation of speech on the Internet is subject to ordinary standards of First Amendment scrutiny. It likewise conflicts with City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994), which held that content-neutral prohibitions foreclosing the use of entire media “can suppress too much speech.”  See also Junger v. Daley, 209 F.3d at 484 (“the fact that a medium of expression has a functional capacity should not preclude constitutional protection.”).
The Court should follow the strong precedent protecting speech and decline to adopt the contrary positions, which are not binding on this Court.   The public policy import of the issue is plain:  Computer code is a crucial part of our scientific and political discourse.  Scientists, programmers, and hobbyists publish computer code in textbooks, journals, popular magazines, and discussion groups — on the Internet, on CD and DVD, and in print.  Before relegating computer code to second-class First Amendment citizenship, this Court should undertake a thorough, more First Amendment-appropriate, analysis.  
A.	The Corley and Elcom Decisions’ Incorrect Application of Intermediate Scrutiny Conflicts with Turner and Madsen
1.	Turner
Having correctly held that computer programmers express ideas and information via programming languages, and that publishing computer code is therefore fully a form of “speech” protected by the First Amendment, (Corley, 273 F.3d at 445-49, Elcom, 203 F.Supp.2d at 1126-27), the Corley and Elcom courts erred in their application of First Amendment law.   As the statute necessarily judges the content of speech, burdening decryption more than encryption, strict scrutiny is most appropriate.  Yet even assuming that the courts analyzed the prohibition as aimed not at the content of computer programs such as DeCSS and AEBPR, but rather at their capacity to be used to facilitate copyright infringement, content-neutral regulation of speech requires at a minimum intermediate scrutiny.  See Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996); Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998).  The Corley and Elcom courts paid lip service to such a standard, (Corley, 273 F.3d at 450-56, Elcom, 203 F.Supp.2d at 1127-32), but in fact applied a standard of deference wholly inappropriate to even content-neutral regulations of speech.
To survive intermediate scrutiny, content-neutral speech regulations must “not burden substantially more speech than necessary” to advance the government’s interests.  Turner I, 512 U.S. at 661-62; Turner II, 520 U.S. at 185.  The burden of demonstrating this necessity rests upon the government.  Turner I, 512 U.S. at 664-665.  The proper showing requires an empirical record “assur[ing] that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.” Id. at 666.
The two earlier decisions conflict with this settled standard in two ways:  the courts incorrectly failed to scrutinize the empirical record for “substantial evidence” to support the burden on speech, and likewise failed to scrutinize “the availability and efficacy of ‘constitutionally acceptable less restrictive means’ of achieving the Government’s asserted interests.”  Id. at 668.
First, the Corley and Elcom courts failed to analyze properly whether Section 1201, as applied by the district court, burdens more speech than necessary.  The Second Circuit in Corley admitted that under the its injunction, Appellant is flatly “prevent[ed] … from conveying to others the speech component of DeCSS.” Corley, 273 F.3d at 455.  It is undisputed that the prohibition of circumvention tools would burden scientific speech, especially in the area of computer security.
In addition, the Corley court acknowledged that its ruling would reduce the speech that results from fair uses of copyrighted works.  The Corley district court noted that barring use of DeCSS would prevent, for example, the use of digital quotations from a film by a movie reviewer, digital analysis of portions of the sound track by a musicologist, or clips of scenes by a film scholar to make a comparative point. Universal v. Remeirdes, 111 F. Supp 294. at 337 (“[n]umerous other examples doubtless could be imagined”); Elcom, 203 F.Supp.2d at 1135 (“Making a back-up copy of an ebook [something usually prohibited by Adobe’s technological protections], for personal noncommercial use would likely be upheld as a non-infringing fair use.”).  Indeed, even in the short time since Corley, as DVDs have become a wildly successful medium, further examples of fair uses prohibited by the DMCA abound.
Yet rather than carefully considering the legislative record underlying Section 1201 and the evidence and argument from the parties and amici regarding Section 1201’s burdens on speech, the Corley court merely recited the Turner legal standard, improperly attempted to shift the burden of proof to defendant and then summarily concluded that “[t]he prohibition on the Defendants’ posting of DeCSS satisfies that standard.”  Corley, 273 F.3d at 455.
This conclusory approach contradicts Turner I, where findings concerning the actual effects of the regulations on protected speech were labeled “critical to the narrow-tailoring step of the O’Brien analysis, for unless we know the extent to which the … provisions in fact interfere with protected speech, we cannot say whether they suppress ‘substantially more speech than … necessary.’“  Turner I, 512 U.S. at 668.  The Corley court’s cursory application of intermediate scrutiny to §1201 contrasts sharply with the exhaustive review of the empirical record to which the Supreme Court subjected the Cable Act must-carry rules in two rounds of litigation in Turner I and Turner II.
The prior courts likewise failed to consider “the availability and efficacy of ‘constitutionally acceptable less restrictive means’ of achieving the Government’s asserted interests,” as Turner requires even under intermediate scrutiny.  Turner I, 512 U.S. at 668.  In doing so, this Court “can take Congress’ different, and significantly less restrictive, treatment of a highly similar problem as at least some indication that more restrictive means are not ‘essential’ (or will not prove very helpful).”  Denver Area Educational Telecomm. Consortium v. F.C.C., 518 U.S. 727, 757 (1996).
Numerous less speech-restrictive means have been proposed by which Congress could combat copyright piracy.  Those less restrictive means include:
	(a) Creating explicit and enforceable exceptions from liability for circumvention and circumvention tools for fair and noninfringing uses.  David Nimmer, for example, suggests requiring companies that encrypt copyrighted works to provide a means of unlocking them for legitimate first-sale or fair-use purposes and immunizing customers who find themselves “stymied by overreaching on the part of content owners” and who resort to self-help circumvention.  David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev., 673, 707 (2000).  See also Free Expression Policy Project, “The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom,” 33 (2003), <http://www.fepproject.org> (“Free Expression Report”).
	(b) Restricting circumvention liability to those who intentionally aid and abet copyright infringement or who conspire to infringe copyrights, following the path taken by many “burglars’ tools” statutes. Free Expression Report at 33.
	(c) Limiting liability to circumvention for illegal purposes, as outlined in the Boucher-Doolittle and Lofgren bills, rather than extend liability to tool-makers and tool-disseminators. H.R. 107, 108th Cong. § 5 (2003) (Boucher-Doolittle); H.R. 1066, 108th Cong. § 5 (2003) (Lofgren);  Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech. L. J. 519, 546 (1999); Free Expression Report at 33.
	(d) Protecting fair and non-infringing uses the same way it protected ephemeral recordings in the DMCA. 17 U.S.C. §112(a)(2). There, Congress expressly required copyright owners to “make available to the transmitting organization the necessary means” for making ephemeral copies and authorized self-help if such means were not made “timely” available. Id. Congress could have done the same for fair use: required that copyright owners using technological protection measures make copies of their works available for fair or non-infringing uses, allowing circumvention and the dissemination of the circumvention means should they fail to do so.
	(e) Following the model of the Vessel Hull Design Protection Act, 17 U.S.C. §1309, passed as part of the legislative package that contained § 1201. Under that statute, a disseminator of information is liable only if he or she “induced or acted in collusion with” one who actually gains unauthorized access to a work.
Inexplicably, the earlier courts have ignored almost all of the available alternative approaches, stating merely that “a content-neutral regulation need not employ the least restrictive means of accomplishing the governmental objective.”  But even if a content-neutral regulation need not be the least restrictive alternative, the availability of an array of less restrictive alternatives casts doubt on the narrow tailoring of Congress’s choice. And the existence of other federal statutes taking alternative legislative approaches to similar problems is something that this Court must consider based upon sufficient fact finding.  This issue alone precludes summary judgment here.
2.	Madsen 
Finally, even if the Studios’ request for an injunction could somehow be squared with the requirements of ordinary intermediate scrutiny of content-neutral laws, it falls far short of the heightened scrutiny required of content-neutral injunctions.  Under Madsen the Court urged that intermediate scrutiny must be applied with special stringency in the case of injunctions, because “[i]njunctions [carry] greater risks of censorship and discriminatory application than do general ordinances.” Content-neutral injunctions must “burden no more speech than necessary to serve a significant government interest,” Madsen, 512 U.S. at 766, a standard that is not met by the Studios' request for an injunction barring all distribution of 321 Studios’ products.
B.	The Corley and Elcom decisions erred in creating a new category of lesser protected “functional” speech
The second major failing of the two decisions is their assertion that computer programs are somehow a less protected form of speech because of their “functional” capacity.  The Corley court reasoned that computer programs have “both a nonspeech and a speech component” and that “the posting prohibition of the injunction targets only the nonspeech component.”  It therefore concluded that it could enjoin the posting of DeCSS, “regardless of whether DeCSS code contains any information comprehensible by human beings that would qualify as speech.” Corley, 273 F.3d at 454.  Elcom followed that mistaken reasoning: “Congress sought to ban the code not because of what the code says, but rather because of what the code does.”  Elcom, 203 F.Supp.2d at 1128.
But what computer programs say cannot be separated from what they do. Banning computer programs for what they enable computer users to do necessarily bans what computer scientists and programmers may say.  In other words, the “functional capability” of a computer program to instruct a computer to perform a task is inseparably intertwined with its speech component.  Unlike the analogy of skeleton keys used by the Studios and Corley court, computer programs are texts written in a programming language.  One cannot detach the nonspeech from the speech component. To aim at one is to aim at both.
The courts calling Section 1201 a content-neutral restriction “on the nonspeech elements of expressive conduct,” make a subtle but impermissible shift in focus from the speaker to his audience.  The bad “conduct” if such there is, is on the part of those who choose to use the programs for circumvention purposes.  It is as if O’Brien were prosecuted not for burning his draft card, but for giving an impassioned speech after which listeners burned theirs.  See United States v. O'Brien, 391 U.S. 367 (1968).  Such speech would plainly be protected absent the highly unlikely finding of imminent incitement.  The Supreme court has made clear that speech does not become “offensive conduct” because listeners may take offense.  Cohen v. California, 403 U.S. 15 (1971). The Corley and Elcom courts impose a heckler’s veto on code because they assume the public will not see it without being incited to take illegal action.
If that is “function,” then every effective piece of persuasive literature is functional -- the revolutionary manifesto, the political advertisement, the lawyer’s closing argument -- as are the instructions to build a nuclear bomb, avoid conscription, or bake a cake. The same rationale would ban a music score or player piano roll for its function in producing music.  Government cannot restrict modes of expression “without also running a substantial risk of suppressing ideas in the process.” Cohen, 403 U.S. at 26. Such a posture is out of step with the “public interest, secured by the Constitution, in the dissemination of truth.” Garrison v. Louisiana, 379 U.S. 64, 73 (1964).
Even the contention that code may be translated almost instantaneously into action does not strengthen the case for its suppression. “The Supreme Court has rejected the position that speech must be ‘effectively answerable’ to be protected by the Constitution.” American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem. 475 U.S. 1001 (1986).
In other areas where such functional and expressive components are inseparably intertwined, the Supreme Court has not hesitated to apply a more exacting form of intermediate scrutiny than normal.  For example, in City of Ladue, the Supreme Court invalidated a content-neutral sign ban even though signs posted on houses or front lawns involved the “functional” creation of “visual blight and clutter” inseparable from the expression of ideas.  In Turner, the Supreme Court applied exacting scrutiny to must-carry rules even though they involved inseparably the “functional” commandeering of a segment of fiber optic cable as well as mandated programming.
And in the context of charitable solicitation, involving the “functional” exchange of money as well as support for ideas, the Supreme Court has consistently “refused to separate the component parts of charitable solicitations from the fully protected whole.”  Riley v. National Federation of the Blind, 487 U.S. 781, 796 (1988); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980) (solicitation is “characteristically intertwined with informative and perhaps persuasive speech . . . [and] without solicitation the flow of such information and advocacy would likely cease”).  And “where . . . the component parts of a single speech are inextricably intertwined,” the Court has held, “we cannot parcel out the speech, applying one test to one phrase and another test to another phrase.  Such an endeavor would be both artificial and impractical.”  Riley, 487 U.S. at 796.
The same is true here.  The Corley and Elcom courts’ “artificial and impractical” attempt to sever the speech and nonspeech components of computer programs should be rejected by this Court.
C.	Potential future copyright infringement by third parties cannot justify banning speech.
The underlying basis for the Studios’ request for an injunction here, as in Corley and Elcom, is concern that future recipients of the computer programs – none of them parties to these proceedings – could use the programs to break the law.  The First Amendment is well acquainted with such claims and has long-established tests to address them.  Brandenburg addressed the possibility that speech might facilitate future unlawful activity and held that even speech advocating violation of the law may not be proscribed “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447 (footnote omitted).  The Court in Bartnicki v. Vopper, addressing the publication of speech facilitated by past unlawful activity, held that the disclosure on a radio show of an illegally intercepted phone conversation could not be prohibited when the publishers did not participate in the illegal interception. Bartnicki, 532 U.S. 514 (2001)  As the Supreme Court observed, “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed order to deter conduct by a non-law-abiding third party.” Id.  These decisions taken together forbid speaker guilt by association. See also NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
Yet here the Studios wish to stop 321 Studios from distributing its speech, without any showing that it intends to facilitate unlawful copyright infringement, as Brandenburg requires, and without any showing that they have participated in illegal activity, as Bartnicki requires. This request conflicts with settled First Amendment principles and should be denied.
VI.	The DMCA is Susceptible to a Constitutional Interpretation
Fortunately, the DMCA is readily susceptible to a constitutional interpretation. Under a more careful reading, DMCA liability for distribution of a computer program should be limited to fact situations in which a court has found:  
1.  That the program enables no noninfringing use, fair use, or exercise of a free speech right;
2.  That a sufficient relationship exist between the publisher of the program and infringers under the aiding and abetting or conspiracy standards; and
3.  That the program was used to infringe copyrights or that an imminent danger of copyright infringement exists under the First Amendment standards. 
One way to achieve this limitation within the statutory scheme is through the definition of the terms of the statute.  Subsection 1201(b) carefully is, by its very terms, limited to technologies that “effectively protect a right of a copyright owner.” If the phrase “right of a copyright owner” is limited to the list of exclusive rights granted an owner under copyright law, then acts done for purposes that are outside the copyright owner’s rights, are simply outside the scope of the statute.
Alternately, the court could rely on the statute’s express preservation of free speech and fair use, seen in §1201(c)(1) and (c)(3).  Fair use as a defense to infringement likewise developed judicially long before it was codified at Section 107 by the 1976 Copyright Act.  See Netanel, Locating Copyright in the First Amendment Skein, at 119 n. 73.   No matter how the construction is accomplished, creation of “safety valves” in the DMCA to match the longstanding ones that exist in copyright law, is necessary for the statute to remain within the bounds of the Constitution.
VII.	The Studios Have Engaged in Copyright Misuse Via Technological Measures
Finally, the Studios should be barred from pressing their circumvention claims because they have misused their copyrights by means of overreaching technological measures.  Not content with using technology to deny DVD purchasers the ability to copy or make fair use of their purchases, the Studios have leveraged their copyrights via licenses and technological restrictions to control in which “region” a viewer may watch a DVD and in what manner he or she may watch its content.
Most DVDs are region coded so they can only be played on a DVD player coded to the same region as the DVD.  Here, as in the Corley litigation, the Studios argue that only licensees of the DVD Copy Control Association (“DVD-CCA”) are “authorized” to decrypt CSS and play DVDs:  “One cannot gain access to a CSS-protected work on a DVD without application of the three keys that are required by the software.  One cannot lawfully gain access to the keys except by entering into a license with the DVD CCA under authority granted by the copyright owners or by purchasing a DVD player or drive containing the keys pursuant to such a license.” Motion 13:1-5 (quoting Reimerdes, 111 F.Supp.2d at 317-18).
In turn, the only players and drives DVD CCA licenses are technologically crippled.   As well as blocking copying even of excerpts, the DVD CCA’s licensing arrangements require all CSS licensees to make players read the RPC byte and lock out any DVDs from outside the player’s region.  RPC was designed to restrict resale, by enforcing a system of phased releases of copyrighted movies. Under this system, major movie studios generally first release DVDs of domestic films in the United States, followed approximately six months later by release in Japan and Australia, and a year later in England and Europe. RPC was also intended to support geographically-zoned distribution agreements and price discrimination, where consumers pay different prices to purchase a DVD depending on where they reside.
Numerous members of the public have entered comments in the Copyright Office’s rulemaking on access-control exemptions protesting the effects of region coding on their access to DVDs they have bought or received as gifts.  Foreign language students return home from abroad to find that the subtitled DVDs they brought with them fail to play on machines at home; travelers find themselves warned or blocked from switching the codes on their laptops or portable players as they move from region to region; many who do not modify their machines find themselves choosing entertainment based on technical incompatibilities rather than preference.  Other commenters discussed a further use restriction, encoding of unskippable promotional material on DVDs that forced viewers, often with children, to wait through advertisements on each viewing before the featured movie began.  Neither of these restrictions is a part of the copyright scheme, but both use copyright, licensing, and the prohibition on circumvention of technological protection measures for their enforcement.
Copyright misuse doctrine “forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office.” Practice Management Information Corp. v. American Medical Ass’n,121 F.3d 516 (9th Cir. 1997) (quoting Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 977- 79 (4th Cir.1990)).  The Ninth Circuit has adopted a broad public policy version of the test that goes beyond the doctrine’s origins in the patent and antitrust context: “whether plaintiff’s use of his or her copyright violates the public policy embodied in the grant of a copyright, not whether the use is anti-competitive.”  In re Napster, Inc. Copyright Litigation, 191 F.Supp.2d 1087, 1103 (N.D. Cal. 2002) (permitting discovery on misuse defense; citing Practice Mgmt., 121 F.3d. at 521).  See generally Brett Frischmann & Dan Moylan, The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software, 15 Berkeley Tech.L.J. 865, 888-893 (Fall 2000); Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999).  In Practice Management, the Ninth Circuit held that AMA’s demands that agency users of its medical codes be excluded from using other, competing codes amounted to copyright misuse.  Practice Mgmt., 121 F.3d at 520.
The same public policy that forbids use of a copyright monopoly to control purchasers’ use of third party materials by barring enforcement of the copyright lever should block enforcement of the anticircumvention provision when it is used to support use controls that go beyond the scope of either copyright or access.  Even if this Court finds the DMCA’s operation to be justified in the abstract, the restrictive leveraging the Studios engage with respect to movies released on DVD should deny them recourse to its provisions.
VIII.	CONCLUSION
This Court should reject the Studios’ requests.  Free speech principles should turn not upon newly minted distinctions between pen-and-ink and point-and-click, but rather upon time-honored distinctions between intentional aiding and abetting of unlawful conduct and speech that at most can be construed as making such conduct easier to commit.
Dated:  March 14, 2003		

						Respectfully submitted,

						_/s/_Cindy A. Cohn_________
						Cindy A. Cohn
						Electronic Frontier Foundation
						454 Shotwell Street
						San Francisco, CA 9110
						415-436-9333 x 108