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I submit this brief to address the constitutionally permissible scope of the anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA").

I am the William F. Weld Professor of Law at Harvard Law School and Director of the Berkman Center for Internet & Society. I teach courses in Evidence and Internet Law.

I frequently use multimedia in my teaching, adding audio and video to my classroom presentations to help tell the full story of a case or question. For example, in my Evidence class I use clips from "The Verdict" to illustrate closing argument, from "The Accused" to give a sense of the difficulty rape victims face on the witness stand, and from "My Cousin Vinny" to raise a variety of trial and ethical issues. Currently, I can assemble a series of selections from videotape to present at the time and in the order most effective for my lesson. I can store other segments on a computer for quick access if they become relevant to a discussion. If new works are made available only in DVD format, access controls such as those the studios seek to enforce here will prevent me from using such works as an effective teaching tool. I believe this is only one example among many fair uses that would be extinguished if plaintiffs' reading of anticircumvention were adopted.

The DMCA creates a novel right of "access control" for holders of copyright who erect any sort of technological barrier to the reading or use of their works. That new right must be qualified by the same concern for free expression that limits the traditional exclusive rights of copyright. Without careful judicial tailoring, "access control" will swallow fair use rights and exceed the constitutionally permissible restrictions on speech. "Circumvention" of technological access controls is not copyright infringement--it is not copying--it is merely viewing an existing copy of a published work in an alternate manner. The plaintiffs in this case attempt to confound the issues of access and copying, of circumvention and infringement, and by doing so to secure a new, impregnable fence around their copyrighted works. Their attempt fundamentally threatens fair use and must fail, either by the language of Section 1201 of the DMCA or the command of the First Amendment and Copyright Clause.

As the Court has noted, "Copyright law restricts speech," and the fair use doctrine serves as a crucial counterweight. Slip. op. at 16-17. "[C]opyright is intended to increase and not to impede the harvest of knowledge." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 545 (1985). Fair use, for commentary, criticism, and scholarship, including commercial use, helps to assure that copyright remains the engine of free expression congress is authorized to fuel, "to promote the progress of science and useful arts." Const., Art. 1, Cl. 8.

The fair use doctrine "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (addition in original, internal citation omitted). The Copyright Act of 1976 codified the common law defense to infringement. 17 U.S.C. § 107, see 4 Nimmer on Copyright § 13.05 at 13-150. Fair use demands that at least four factors, the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the work's potential market be considered in every case of alleged infringement. It thus prevents an overreaching of copyright claims from stifling use.

Even an access control device with purported built-in fair use algorithms--of which CSS has none--could not perform the required case-by-case analysis. As the Supreme Court stated recently, "[t]he task [of fair use analysis] is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). If the Supreme Court finds the fair use analysis difficult, we clearly cannot delegate its hard questions to technological devices that do not permit nuanced responses. [FN1]

Under plaintiffs' reading of the DMCA's anticircumvention provision, however, copyright holders would have the absolute power, through the simple addition of a technological device, to insulate their works from unwelcome but fair uses. I respectfully suggest that this view, apparently adopted by the Court in its memorandum opinion, cannot be correct. Plaintiffs seek, through CSS, to write their own copyright laws, to put legal force behind any restrictions chosen by a copyright holder, without respect for time limits on copyright, the amount of uncopyrightable material within the protective envelope, or the doctrines of first sale and fair use. Plaintiffs thus stake a claim far in excess of the exclusive rights explicitly granted them in the existing Copyright Act.

Despite publication and sale of their movies on DVD, plaintiffs seek to maintain air-tight control over what buyers may do with the movies. The encryption plaintiffs employ does not prevent copying, it prevents use--by anyone running a non-standard operating system, anyone who has purchased a DVD outside of his home "region," anyone who would prefer to view an excerpt in a different format, or anyone who would incorporate a clip or screenshot in a classroom lecture or critical review. Plaintiffs create movies that become part of our shared cultural fabric. They cannot now deny the public the right to continue the discourse.

Instead, Section 1201 shows solicitude for fair use: "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." § 1201(c)(1). To respect this paragraph, the Court should separate the inquiries of Section 1201(a)(2). Even if plaintiffs have employed a "technological measure that effectively controls access" to their works, a device that is necessary to enable fair use should not be found to "circumvent[] [the] technological measure." The constitutional limits on the scope of access controls must authorize bypassing controls that extend too far. Moreover, where publishers have overstepped their bounds, distribution of devices to bypass their controls must be permitted as well--fair use cannot depend on every individual's becoming a cryptographer.

DeCSS, or a device that likewise allows the viewer of a DVD to bypass the access controls that otherwise prevent fair use, brings the rigid CSS code into compliance with flexible fair use mandate as directed by § 1201(c)(1). Like the "substantial noninfringing uses" of the VCR, DeCSS's noninfringing uses to enable DVD viewers to extract clips or screenshots, format-shift, or region- or operating-system-shift, are legitimate and constitutionally required. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 441 (1984). Because the device is necessary to enable fair use in the face of access controls, the Court should find DeCSS to be outside the reach of §§ 1201(a)(2) and 1201(b).

If the Court finds such an exemption incompatible with Section 1201, I respectfully submit that it must find this Section violates the First Amendment and the congressional power conferred by the Copyright Clause.

For the foregoing reasons, plaintiffs' preliminary injunction should be vacated and their complaint dismissed.