Dept. of Justice Reply Brief

in Felten v. RIAA (Nov. 8, 2001)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

PRELIMINARY STATEMENT

            In his Memorandum in Support of Motion to Dismiss ("Opening Brief"), Defendant John Ashcroft ("Federal Defendant") made clear that the Plaintiffs in this case have not presented a justiciable claim. First, Plaintiffs' allegations show that their conduct is not covered by the statute they challenge, the Digital Millennium Copyright Act ("DMCA"). As a result, Plaintiffs face no credible threat of prosecution under that statute. Relatedly, Plaintiffs offer no factual details to show that any of their future conduct would be covered by the DMCA. Finally, it appears that Plaintiffs themselves are not convinced that they are covered by the DMCA, because they continually publish the very material they claim has been "chilled." Plaintiffs' Brief in Opposition to Motion to Dismiss ("Opposition Brief") calls none of these conclusions into serious doubt.

PLAINTIFFS' CLAIMS ARE NOT RIPE.

            To prove ripeness, a plaintiff must show that the parties have adverse legal interests, that the case is susceptible of a conclusive judgment, and that a judgment would be of practical utility to the parties. See Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3rd Cir. 1990).

            Plaintiffs contend that because the present case raises, among other things, two First Amendment claims, the ripeness standard should be less stringently applied. Opposition Brief at 8. On the contrary, the "slender" First Amendment exception "only allows those who have suffered some cognizable injury, but whose conduct is not protected under the First Amendment, to assert the constitutional rights of others." Bordell v. General Electric Co., 922 F.2d 1057, 1061 (2d Cir. 1991) (emphasis added). The Plaintiffs still must demonstrate that they themselves suffered an injury in fact. Id.

1.         The Parties Do Not Have Adverse Legal Interests.

            Where a statute has never been applied to the plaintiff who challenges it, the plaintiff must show at least a "substantial threat of real harm" from prosecution under that statute. Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3rd Cir. 1994). Because the DMCA had never been applied to them, Plaintiffs must therefore show, at the very minimum, that their conduct is proscribed by the statute, and that they face a credible threat of prosecution under it. See Steffel v. Thompson, 415 U.S. 452, 459 (1974).

                        A.        Plaintiffs' Academic Pursuits Are Not Proscribed By the DMCA.

            First, Plaintiffs' alleged conduct is not proscribed by the statute. As stated more fully in the Opening Brief, the DMCA prohibits trafficking in certain technologies that are primarily designed to circumvent copyright material access controls. Opening Brief at 16-18. By contrast, the Plaintiffs' alleged objective¹ is to strengthen, not circumvent, these access controls. Opposition Brief at 22 ("The only way to build strong security systems is through open design and peer review. The only way to facilitate peer review is to allow unfettered access to security systems for analysis, and unimpeded allowances to publish results[.]"). While Plaintiffs' computer programs have the additional capability of actually circumventing access controls, they are allegedly not designed or marketed for the purposes of actually getting access to the copyrighted material itself. They are designed and published to further scientific research into access controls. As a result, Plaintiffs' alleged conduct is not proscribed by the DMCA.

            Plaintiffs respond that they fear prosecution because a "reasonabl[e] read[ing]" of the DMCA might include their conduct. Opposition Brief at 12. Their argument is that because their programs and other material might be used to circumvent access controls, they are primarily designed for that purpose. Opposition Brief at 12 (arguing that Plaintiffs' "primary purpose" is the circumvention of access controls because "[c]ircumventing technological measures . . . is precisely what Plaintiffs do[.]").

            Plaintiffs apparently miss the point of the "primarily designed" language. Merely stating that a computer program is capable of circumventing an access control does not necessarily define its creator's primary purpose. Indeed, if it did, the "primarily designed" language would be meaningless–every program that could circumvent access controls would, a fortiori, be primarily designed for that purpose. Furthermore, in the present case there can be no doubt that the primary purpose of Plaintiffs' alleged conduct is scientific advancement and stronger access controls, not the circumvention of access controls, or access to the copyrighted material that might be protected by those access controls. Compl. ¶ 1; Opposition Brief at 22. Under these circumstances it cannot be said that the Plaintiffs' publications are "primarily designed" to circumvent access controls.

                        A.        Plaintiffs Do Not Face A Credible Threat of DMCA Prosecution.

            Second, Plaintiffs' allegations fail because there is no credible threat of their being prosecuted for the conduct they allege. Plaintiffs have not received any threats of prosecution. They do not even claim that other, similar conduct has been prosecuted in the past. Indeed, they have in fact published much of the speech they claim was chilled, and yet there has been no enforcement action against them whatsoever. See Attachments A, B to Opening Brief (explanation of method of circumventing certain access controls published in August, 2001). The only evidence to which Plaintiffs point to establish that DMCA prosecution is a credible threat is that the DMCA exists. This is not enough. Cities Service Co. v. Dep't of Energy, 520 F. Supp. 1132, 1141 (D. Del. 1981) ("The mere possibility of prosecution or the possibility that sanctions authorized under a general regulatory scheme may be imposed . . . is insufficient to create a case or controversy under Article III.."), citing Martin Tractor Co. v. F.E.C., 627 F.2d 375, 379 (D.C. Cir. 1980) (internal quotation marks omitted).

            Plaintiffs' response is that a threat exists because: (1) the government has failed to disavow prosecution of plaintiffs; (2) the private defendants have threatened the Plaintiffs with lawsuits under the DMCA, and; (3) the government has indicted an individual for criminal violations of the DMCA's anti-circumvention provisions. None of these points suffices to show a legitimate threat of prosecution of the Plaintiffs

            First, in order to disavow prosecution under the current circumstances, the government would have to agree to a non-prosecution letter for conduct that has not happened yet. Such prospective non-prosecution letters may be ill-advised, because until conduct actually takes place, it is impossible to know exactly what an individual really intends to do, under what circumstances, and with what ramifications. Thus, the fact that the government has not produced such a letter² is better viewed as a decision to abstain from committing the government to a course of action when all of the facts are not yet clear. It is in no way, and should not be viewed as, a threat of prosecution.

            Second, any threat by the Private Defendants of civil liability under the DMCA does not affect the justiciability of Plaintiffs' challenge to the DMCA's criminal provisions, as the criminal provisions can only be enforced by the government.³

            Plaintiffs attempt to avoid this problem by conflating the two parts of the suit, and arguing that they have standing to challenge the DMCA criminal provisions on the grounds that they grant the Private Defendants a "heckler's veto."⁴ Opposition Brief at 5, 11 ("Plaintiffs have established a credible threat of prosecution under the DMCA . . . [they] filed this action after the private Defendants threatened to sue under the DMCA[.]"). Plaintiffs' fears are unfounded because whether or not a private individual finds the distribution of Plaintiffs' technology objectionable or unlawful in no way affects the applicability of the DMCA's criminal provisions.

            Third, Plaintiffs' reliance on the Sklyarov Indictment is unavailing because, as noted in the Opening Brief, the indictment of Elcom Ltd. and Dmitry Sklyarov highlights the distinction between conduct that falls within the DMCA's criminal anti-circumvention provisions, and the Plaintiffs' alleged conduct in this case. The Indictment charges that Sklyarov and Elcom designed a program that circumvents the restrictions on the copying, distributing, and printing of certain electronic books, and that they offered this program for sale to the general public on the Internet, specifically for the purpose of circumventing these restrictions. Indictment of Elcom, Ltd. and Dmitry Sklyarov, dated August 28, 2001 (attached to Opening Brief at Attachment F). Plaintiffs' alleged conduct is quite different: for example, they have not sold their computer programs to the public. Rather, they publish them to fellow scientists as part of the scientific process of improving access controls. See, e.g., Compl. ¶ 1. Thus, the indictment of Sklyarov and Elcom in no way reflects an intent to prosecute Plaintiffs.

                       

                        A.        Plaintiffs' Position That No Threat Is Required Lacks Merit.

            Next, Plaintiffs take the position that their claim is justiciable even if there were no threat of prosecution, because no threat is actually necessary. Opposition Brief at 9. For this they rely on ACLU v. Reno, 31 F. Supp.2d 473, 479-80 (E.D.Pa. 1999), for the proposition that "courts will presume that a credible threat exists if the statute, on its face, arguably restricts rights of free expression." Opposition Brief at 10. In ACLU the district court stated that it would presume a credible threat of prosecution, but only if a reasonable reading of the statute would include the plaintiffs' conduct, and only if there was no compelling evidence against the presumption. See ACLU, 31 F. Supp.2d at 480. The Third Circuit affirmed this opinion, holding that because the district court's interpretation of the statute in question imposed liability on plaintiffs, the plaintiffs could reasonably fear prosecution.⁵ ACLU v. Reno, 217 F.3d 162, 171 (3rd Cir. 2000), cert. granted sub nom. Ashcroft v. ACLU, 121 S.Ct. 1997 (2001). The present case is distinguishable from the Reno holding on two grounds. First, the Plaintiffs' alleged conduct in this case is clearly not covered by the DMCA; as a result no credible threat of DMCA prosecution may be presumed. Second, the fact that much of the Plaintiffs' proposed conduct has already happened, without any repercussion whatsoever, presents compelling evidence that the Plaintiffs do not face a credible threat of DMCA prosecution for performing similar conduct in the future.

            It is true that courts have occasionally found an exception to the general rule requiring an articulated threat of prosecution made by the government to the plaintiff. In each of those cases, however, the court concluded that there was some fact or set of facts that made it apparent that the plaintiffs actually faced imminent prosecution, even in the absence of an articulated threat by the state.

            For example, in Presbytery of New Jersey v. Florio, the court found that the state's willingness to eschew prosecution for certain plaintiffs when acting in certain capacities, and its "pointed" refusal to disavow prosecution of others for the same conduct, implied a threat of prosecution for those for whom it would not disavow such prosecution. This rendered the case ripe with respect to the individuals for whom the government would not disavow prosecution. 40 F.3d 1454, 1467-68 (3rd Cir. 1994).

            In Babbitt v. United Farm Workers National Union, the Court dealt with a criminal statute that, on its face, applied to the plaintiffs' conduct, and found therefore that the plaintiffs had reason to fear a prosecution if they continued with their intended conduct. 442 U.S. 289, 302 (1979). That case, like the others, reiterated the need for a "realistic danger" of injury from the statute, and a "credible threat" of prosecution. Id.

            Finally, in Navegar v. United States, the court found that the challenged statute proscribed only the specific firearms manufactured by the plaintiff, "in effect singl[ing] out appellants as its intended targets, by prohibiting weapons that only the appellants make." 103 F.3d 994, 1000 (D.C. Cir. 1997). Therefore, the court said, "[b]ecause it is clear to whom these provisions of the Act would be applied were they to be applied at all, the imminent threat of such prosecutions can be deemed speculative only if it is likely that the government may simply decline to enforce these provisions at all." Id.⁶   

            None of these cases applies here. Unlike Presbytery, the government has in no way indicated that it might be interested in prosecuting some plaintiffs, but not others. Unlike Babbitt, the DMCA does not even appear to apply to Plaintiffs' conduct at all, let alone create a realistic danger of injury. And unlike Navagar, the DMCA is a statute of general applicability; it can be applied vigorously and coherently, and never bring within its sweep the Plaintiffs' conduct at issue here. In short, there is no secondary evidence of a credible threat of prosecution. Thus, all that Plaintiffs can point to in order to show a fear of prosecution is the fact that the DMCA exists. Under the direct application of United Public Workers, this is insufficient, and Plaintiffs' claim should be dismissed.

2.         Plaintiffs' Claim Does Not Admit of Conclusive Relief.

            Under the second prong of the Step-Saver test, the court must determine whether a judgment would be conclusive. Step-Saver, 912 F.2d at 649. Conclusiveness "addresses the extent to which further factual development of the case would facilitate decision, so as to avoid issuing advisory opinions, or whether the question presented is predominantly legal." Ne Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 343 (3rd Cir. 2001) (internal citations omitted). The Opening Brief made clear that, except with respect to the papers that have already been published, detail about the Plaintiffs' proposed publications is scant. Plaintiffs response is twofold. First, they contend that because they raise a facial challenge, they need not present specific facts to support the applicability of the DMCA to their conduct. This is not the state of the law. Ne Hub was clear when it stated that part of the reason for requiring factual development was to assure the court that it was not issuing an advisory opinion, i.e., that the Plaintiff was actually affected by the statute in question. Id. Thus, regardless of the nature of Plaintiffs' challenge, they must allege sufficient facts to show that they are affected by the statute in question. See San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1126-27 (9th Cir. 1996). Plaintiffs fail to allege such facts, and therefore fail to allege the ripeness of their claim. Indeed, the only detail that is alleged specifically, and repeatedly, about all of the Plaintiff's conduct, past and future, is that it is all academically oriented, and that none of the Plaintiffs have or will undertake conduct with the primary purpose of circumventing access controls.      

            Plaintiff's second response is that United Public Workers v. Mitchell should be overturned, or at least "distinguished into oblivion." Opposition Brief at 19, n.16. In relying on the notion that this Supreme Court precedent should not be followed, Plaintiffs ignore the fact that there are many recent cases that stand for the proposition that the details of proposed conduct are important to a court's determination of standing and ripeness. See, e.g., Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1141-42 (9th Cir. 2000) (en banc). In that case the Ninth Circuit held unripe a First Amendment freedom of religion challenge to a state statute prohibiting discrimination in real property leases based on marital status. The plaintiffs alleged that their religious beliefs prevented them from renting to, and in fact they intended to refuse to rent to, unmarried couples. The court held these details were insufficient, because the case rested on "hypothetical situations with hypothetical tenants." Id. at 1142. Similarly here, the details that might render Plaintiffs' conduct susceptible to the DMCA (such as to whom they publish their material, under what circumstances they publish it, and in what fashion they market it) are missing. So are the details that may render what they actually publish either speech, or a non-expressive set of computer commands. Thus it is apparent that critical details of Plaintiffs' challenge are not yet clear. As such, this case is unripe.

3.         Adjudication of Plaintiffs' Claims Would Be of Little Practical Utility.

            The practical utility of a judgment depends on "whether the parties' plans of actions are likely to be affected by a declaratory judgment" Ne Hub at 344-45. As the Opening Brief pointed out, Plaintiffs' conduct shows that they do not need a declaratory judgment from this Court to order their affairs. They have already undertaken the very conduct that they claim is covered by the DMCA, and that they claim they had been chilled from undertaking. See Opening Brief at 20-21. Moreover, Plaintiffs have undertaken this conduct without repercussion.

            Since the Opening Brief, Plaintiffs have continued to engage in the very conduct they claim was chilled. As it stands, there is now an inexplicable dichotomy of conduct that Plaintiffs have undertaken, and effectively identical conduct that they claim they fear undertaking. For example, Plaintiff Min Wu published her paper, "Analysis of Attacks on SDMI Audio Watermarks," at the Institute of Electrical and Electronics Engineers Signal Processing Society, 26th International Conference, on May 7-11, 2001. Compl. ¶ 53. She also posted Chapter Ten of her dissertation, which dealt with circumvention of access controls, on the Internet, and the chapter remains available through the Princeton University Libraries. See Attachments to Opening Brief C, D. She claims she pulled the chapter off of the Internet because of her fear of the DMCA. Now, however, she has signed a contract to publish the chapter as part of a book, but claims she fears making any substantive changes to the chapter because of the DMCA. Supplemental Declaration of Min Wu, p. 2. She offers no explanation of why the Chapter that once was chilled is now publishable. She certainly does not explain the perplexing conclusion that it is now publishable only in its current form (the form that mere weeks ago apparently warranted self-censorship).

            Also, at a recent USENIX conference, Professor Felten published a detailed explanation of how he and others circumvented a particular access control that is currently in use by the Secure Digital Music Initiative ("SDMI"), but claims he would refuse to write a Scientific American article "describing the role, nature and applications of information hiding technologies" generally. Opposition Brief at 16. Similarly, Daniel Wallach, who joined in the USENIX publication and is thus apparently comfortable publishing a paper regarding the methods of circumventing a specific, currently used access control, nonetheless refuses to write an article on a much more generalized topic: "the history of copyright protection technologies." Opposition Brief at 6.

            Plaintiff Bede Liu also joined Professor Felten in the USENIX publication, but claims he is afraid even to discuss the topic while in Paris, France. He is, however, willing to discuss the material he filed under seal in this case, which appears to be a computer program that evades watermark detection, a form of access control. Liu Supplemental Declaration at ¶ 4.

            In short, the only pattern that can be gleaned from Plaintiffs' conduct is that they are willing to, and in fact continue to, engage in the very conduct they claim is proscribed by the DMCA. Their decisions to publish certain speech, and delay or possibly forego other identical speech, does not reflect a fear of prosecution. It if did, then logically Plaintiffs would be publishing none of the material. Therefore, any alleged refusals to publish cannot be considered a "chill," and do not evince a need or bases for a declaratory judgment in this case.

CONCLUSION

            For the foregoing reasons, Defendant John Ashcroft's Motion to Dismiss should be granted.                                                                             

                                                                                    Respectfully submitted,                                

                                                                                    ROBERT D. MCCALLUM, JR.

                                                                                    Assistant Attorney General              

                                                                                    ROBERT J. CLEARY

                                                                                    United States Attorney

                                                                                    MICHAEL CHAGARES

                                                                                    Assistant U.S. Attorney

                                                                                    970 Broad Street

                                                                                    Room 400

                                                                                    Newark, NJ 07102

                                                                                    (973) 645-2700

Dated: November 8, 2001                               By:     

                                                                                    THEODORE C. HIRT

                                                                                    Assistant Director

                                                                                    RICHARD G. PHILLIPS, JR. (RGP 4673)

                                                                                    Trial Attorney

                                                                                    U.S. Department of Justice

                                                                                    Civil Division

                                                                                    Federal Programs Branch

                                                                                    901 E Street, N.W., Room 920

                                                                                    Washington, D.C.                  

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