Judge: Go ahead Ms. Sullivan.
Sullivan: May it please the court. My name is Kathleen Sullivan and I represent appellants Eric Corley and 2600 Magazine. Your Honor, this appeal arises from a permanent injunction issued after trial that raises questions of first impression about the application of Section 1201(a)(2) of the Digital Millennium Copyright Act. It raises serious questions of first impression about the constitutionality of that statute as applied in this case under the First Amendment. Now, let's be clear on what 1201(a)(2) prohibits. It doesn't prohibit aiding and abetting copyright infringement. It doesn't prohibit any kind of device designed to protect digital materials such as DVDs from being copied in violation of copyright law. What it does is something quite different. What it does is it prohibits the dissemination of any device that would circumvent a technology designed to control access to digitally encrypted material of the copyrighted work. Now, it's important to note that this is a statute that protects access. It protects against access, not a protection against use. Let's be clear on what's at issue in this case. The studios, the plaintiffs in the case, have come up with a system called CSS, Contents Scramble System, that in effect takes digital movies and puts them into a little kind of digital straitjacket. It says "We're encrypting these, and you can do only what we want you to do with them. You can only play them exactly as they're recorded by the studio and only on licensed DVD players." And what the defendants in the case have done is they've posted a program, not one of their own invention, but a program called DCSS that enables users of locally purchased DVDs to liberate the movie from its digital straitjacket, so to speak, to decrypt it, but not necessarily in order to make an infringing use of copyrighted works. DCSS simply allows you to liberate the encrypted content for a variety of uses, some of which are perfectly innocent under the copyright laws, fair uses or non-infringing uses, and others of which might speculatively be copyright infringements. But let's be clear that 1201(a)(2) is not a law about protecting technological devices for protecting against copyright infringement. It's rather a law that protects against the circumvention of access, entry into the material itself.
Judge: Well, you distinguish those two as if they're mutually exclusive, and I wonder if – is that what you're saying? That it's one and not the other?
Sullivan: Not so, Your Honor. What I mean to suggest –
Judge: Or is it one that includes the other?
Sullivan: No. It's that they're not necessarily involved. Let's think of the analogy as this. If Congress were to have said, "Nobody pay print a blueprint of a Xerox copying machine, or any information on how to construct a copying machine, because a copying machine might well be used for infringing copyrights of lawfully protected works." Of course, a copy machine also has many innocent uses. And it's our contention here that the law as applied, it's as if the law has been applied to say "you may not print the blueprint for a copying machine because it might lead to infringing uses," when in fact there are a whole host of non-infringing uses found by the District Court and acknowledged by the District Court in its opinion at 314, note 120. There are a variety of uses that might be perfectly innocent, so Judge Newman, to answer your question, DCSS might be used by an infringer. It might be used by a perfectly innocent user who wants to sit at home, and let's take a few examples that –
Judge: Well, if the "might" in that sentence is not a far out, remote, theoretical possibility, but a highly likely, virtual certainty, then can't we think, and thinking from what Congress tells us they're doing, that one reason they passed this is to cut down on it?
Sullivan: Your Honor, absolutely, that's the reason.
Judge: Alright. So to say this is not something that deals with infringement, it's fair to say it doesn't only deal with infringement –
Sullivan: Your Honor –
Judge: -- but it has a lot to say about infringement?
Sullivan: Absolutely correct, but the First Amendment obliges Congress. Even if it has a content neutral goal of preventing copyright infringement or theft, to put it simply, and we can acknowledge that's an important goal, it must do so only in a narrowly tailored way. And as applied here, this can conceivably be thought to be narrowly tailored.
Judge: Alright. So then on this part of your argument, it's that while this has some perhaps significant utility in preventing infringement, it also has some other effects which you say could have been accomplished in a way less harmful to either copyright law or the First Amendment?
Sullivan: Precisely so, Judge Newman, on the second point. It could have been accomplished in a lot less restrictive ways, but you can't agree on this record that this statute has been shown to have a significant utility in preventing copyright infringement. The simple most important fact in the record is an absence. The record is quite clear that there was no finding, after voluminous efforts by the studios, to stop the use of this program. No finding anywhere in the world that anyone had used DCSS to infringe a copyright. That's acknowledged by the District Court at 314, note 120, it's stipulated to in the appendix of pages 334 through 336.
Judge: But wouldn't your entire argument and that of all the amici support should be the same even if the records show the thousand people had their copied DVD courtesy of DCSS? You'd be making exactly the same argument, wouldn't you?
Sullivan: Your Honor, the key thing to remember here is that there are many, many innocent abuses by lawfully --
Judge: That may be. I'm just wondering about the significance of your saying the record doesn't show us. The judge said it is so inevitable that he doesn't have to wait for that evidence. This isn't speculating that somebody will go to Mars --
Sullivan: Judge --
Judge: He's saying it's so certain, and I'm just wondering to you whether or not even if we had a thousand people who had done it, you would abandon any argument in your brief?
Sullivan: Judge Newman, no, the argument here is that Congress has an obligation to find on a real and substantial empirical record. Under the minimum standard of First Amendment review that could possibly apply in this case, if you don't apply strict scrutiny, at a minimum you have to apply Turner. And Turner required Congress to come up with an actual empirical record that the harms it seeks to stop will be stopped by the statute. That's the record that's missing from the legislative history, and that's the record that's missing from the District Court's findings below, because comprehensive and thoughtful as they might have been, they omitted to find any proof that stopping DCSS stops copyright infringement. In fact the stipulation --
Judge: Well that's a different argument. You mean that it – not that it hasn't – that it doesn't go far enough. I thought your point was they haven't shown there's somebody out there copying a DVD.
Sullivan: That's correct, but --
Judge: But now your point is this, this anti-encryption – this decryption device --
Judge: -- doesn't go far enough in preventing the things that you say haven't yet been documented.
Sullivan: No, Your Honor, it doesn't go – it certainly – this statute does not prevent piracy. People with sophisticated copying devices can certainly mass produce DVDs and sell them for pennies on the street, so the statute is, of course, under inclusive in that respect. But I'm focusing on how it's over inclusive. It stops innocent users of DCSS and that is documented in the record. It's quite clear that it would stop you, for example, if you purchased a DVD. You paid your $25 for "Schindler's List," you took it home, you're color blind. You want to use DCSS to download it and change the pickles from blue to green so you can see it better. Cant' do that, can't use DCSS to do that. Your daughter wants to put a snippet of "Schindler" in her book report – her multimedia digital book report for 5th grade. You can't use DCSS to decrypt "Schindler's List" even though you paid for it and use it – and let her use that one little snippet that surely would have been fair use under the copyright law --
Judge: Now that argument – so this is the argument that inhibits fair use.
Sullivan: It inhibits lawful users from making fair uses and not infringing uses. It stops people from playing the DVD on a different digital --
Judge: Alright, let's look at that. Some of the people – I guess your brief, along with the amici, argue it eliminates fair use. Now, is that what's happening here?
Sullivan: Your Honor, under the statute as interpreted by the District Court, there can be no access to digitally encrypted DVDs even if you want to make fair use of them. He has prohibited fair users from using the DCSS along with all the --
Judge: From using the movie in its digital form.
Sullivan: Correct, Your Honor.
Judge: Does that stop fair use?
Sullivan: It stops fair use in digital form, Your Honor. Of course, somebody could take out a handheld video camcorder and film "Schindler's List" as it played on her home player and then use the analog tape. But to say that that protects fair use in an era of changing technology is like saying don't worry if you can't drive a car, you can rely on a horse and buggy. So this is a statute in which you have --
Judge: Well, that's an interesting analogy. Let's – I'm wondering if that really is the answer to fair use. Have we ever said as to fair use that you not only get to make fair use of the copyrighted work, but you get to make your fair use in the most technologically modern way. Have we ever said that?
Sullivan: No, Your Honor. The --
Judge: And why should we?
Sullivan: You shouldn't – you don't need to say that here. All you need to do -- say here is to say the statute is so tenuously related to the prevention of actual copyright infringement, at least as applied to this program, that the elimination of a substantial number of non-infringing uses defeats narrow tailoring in this case. You don't need to strike down the statute of limitations --
Judge: No, but I thought – wait a minute. Now you're back to elimination. It doesn't eliminate the uses --
Sullivan: A substantial number of non-infringing uses.
Judge: It doesn't even do that --
Sullivan: A substantial number of fair and non-infringing uses, Judge Newman.
Judge: I don't think it even does that. At best – at worst, it eliminates the fair uses in the most technologically preferable form, namely the digital rendering of the material. That's the worst it does. It doesn't say anything about making fair use with less technically excellent methods, right?
Sullivan: That's correct, Your Honor, but as you, yourself --
Judge: So then we really shouldn't talk about eliminating fair uses because that's not what's happening.
Sullivan: We need not, Your Honor. All you need to do to reverse the judgment below and vacate this injunction is to find that as applied to this case, the statute has not been shown to be narrowly tailored to preventing copyright infringement. Have it shown that DCSS is used to infringe copyright. It is clear, though, that a substantial number of fair and non-infringing uses have been eliminated even if not all fair uses have been eliminated.
Judge: You haven't told me one that's been eliminated. You've only told me you don't get to do it in digital form.
Sullivan: Well, to – Your Honor, as you, yourself acknowledge in this Circuit as you acknowledged in Grimaldi in 1989 and as the Circuit has repeatedly acknowledged as expressed by your colleague, __________, in his 1990 Harvard Law Review article, the Copyright Act is not a protection for property that is absolute. It's a protection for a form of intellectual property that represents a bargain in which there have always been rights of access to that property for fair users. It can't be the case that that bargain has held true if the technology can improve for the people who hold onto one side of the bargain, the property side, and the people who hold onto the other side, the fair users and non-infringing users who hold up the First Amendment interest in freedom of speech on which that bargain defends are locked into an ancient analog age. It can't be that the property holders advance into this 21st century while the people who hold the free speech rights that are embodied in the statute and --
Judge: Well, that's one way to put it and I wonder if that's really a self-evident proposition. After all, take some of the fair uses that you and the others argue.
Sullivan: And non-infringing uses.
Judge: And non-infringing.
Judge: Well, alright. The professor – the journalist – he wants to write his movie review. That's one of the fair uses permitted by the Act. You get to critique --
Sullivan: It's prevented by the Copyright Act, but it's forbidden to those who would use the digital form for that quotation, but it has a certain money amount.
Judge: Those who write their reviews in the New York Times, I take it, can do fine in their criticism using text, can't they? They don't need the digital format in order to write their movie reviews.
Sullivan: Oh, that's absolutely correct, Your Honor, but the right of fair use has never encompassed the -- simply the right to state something in a different form. It's encompassed the right to use something in the exact form by which the creator embodied it so long as the use is fair, so long as it's subject to all the limitations of the Copyright Act. What this Act does is shift a bargain that has been maintained and without this bargain, it's not clear that copyright itself would be defensible against First Amendment challenge. It can't be that the bargain is shifted all in favor of the property holder so that fair users are now condemned to use inferior technologies. I just want it to be clear there are also non-infringing uses. If your daughter were autistic and intended to destroy the home DVD collection because of her illness, it would be a non-infringing use for you to just back up the copy onto your hard drive under the Copyright Act, but this law would prevent you from using DCSS to do that. And as you mentioned, scientific researchers – 1201(a)(2) as interpreted by the District Court, would prevent scientific researchers even under the statutory exceptions from using DCSS to then post information about decryption and encryption in their own websites, or even to deliver lectures at Princeton or other places about their findings. So this is a case in which the --
Judge: Why do we have to think of this case as the vehicle for deciding whether that example you gave us of the person -- someone had destroyed it out of ignorance and they wanted to use DCSS to make a hard copy so their daughter could see the film?
Judge: Nobody's enjoined that.
Sullivan: Your Honor --
Judge: Why do we have to say that we must reverse this to make sure that – that that suit won't encounter an injunction?
Sullivan: Because, Your Honor, as interpreted by the District Court, this statute can be used to stop the posting of DCSS for use by all the listeners out there --
Judge: But we're not reviewing his construction. We're reviewing his injunction.
Sullivan: You're reviewing his injunction which has a interpretation of the act, which the act, if --
Judge: We'll get to the interpretation and maybe, maybe, some things he said, we ought not to buy into, but I just am concerned when you invite us to say we must undo this injunction because some other person might be enjoying the circumstances totally different from this.
Sullivan: Judge Newman, the beauty of the First Amendment is that it protects the right to listen as well as the right to speak and as numerable cases, including this Court's decision in The Board of Trustees vs. Pico case have held, the right to speak entails the right to listen. It's all the people who would use DCSS, were the appellants allowed to post it on their websites, whose rights -- First Amendment rights -- are at stake in this case. The defendant has a First Amendment right as a first party to purvey lawful speech to other people who will use it lawfully unless Congress can show that it's come up with a narrowly tailored way to stop this misuse of DCSS.
Judge: In talking about what the defendant's conveying, what is the expressive content for the elements of communication in DCSS?
Sullivan: Your Honor, DCSS is a program, and so, of course, like any computer program, it consists of symbols and words which certainly have expressive content as decisions such as Hurley suggest, the St. Patrick's Day Parade case, speech need not have some articulable, intelligible content in the spoken word to be protected by the First Amendment. There's no question that this injunction enjoins the publication of speech in the form of a computer program.
Judge: But what is the expressive content?
Sullivan: Well, the expressive content is the beauty of the program, its ability to be used for scientific research, its ability to be reincorporated into a palm, a song or a Haiku, and its ability to do things just as a recipe for a meal is an ability to do things. We might reasonably disagree, and the parties do, about why the government has stopped publication for a content neutral purpose, and I submit even if it's for a content neutral purpose, the minimum standard of review is Turner and the injunction fails that standard. Or, we might as we said in the briefs, and I'll leave it to the briefs to make this point, say that it was being stopped because of its content. But you cannot deny there can be no serious argument in this case that this is an injunction against the publication of speech that's protected by the First Amendment. The question is, did the government have a good reason? And our answer is that it did not.
Judge: Well, the judge approached it not quite in those terms, understandably, and you don't approach this exactly the same way. He didn't deny that there was a speech content --
Judge: -- to DCSS. What he said is that there is a – what he called a functionality aspect, and that that aspect is so dominant and the effect of DCSS on encrypted copyrighted material is so apparent and imminent and likely to happen before anybody can do anything about it, that the speech element here need not overly concern us. It concerns us some – you wrote a lot of pages about it.
Judge: But that was his answer to it, not to deny the speech but only to put it in a certain context.
Sullivan: Your Honor, we believe the District Court was entirely correct to alter his view between the preliminary injunction and the permanent injunction and to say that yes, the First Amendment does apply to this, it's speech. The question is do we apply intermediate scrutiny because the government's purpose for stopping it is content neutral, or strict scrutiny because the government's purpose is content based. So, he's quite right about that, but my argument to you is that even under Turner, it's your obligation to look at the facts de novo as they affect the First Amendment argument under Bose and Hurley, and under de novo review you cannot find that on this record this injunction was needed to stop non-infringing use. Now let me just say that the other side of narrow tailoring that the District Court's injunction fails here is that there are less restrictive alternatives Congress could have used, and failed to use, to stop the offense here which would be piracy or theft.
Judge: Can we go back just a moment? You would agree that we're not dealing with pure speech. Would you agree with that? That there is a so-called functional aspect here.
Sullivan: Your Honor, what matters is was that speech was stopped because of what it communicates. We might disagree on whether what it's communicating is being stopped for content neutral purpose. Suppose it is. The law still isn't narrowly tailored nor is the injunction.
Judge: Well, how about the government's interest? Would you agree that if substantial --
Sullivan: Government's interest in stopping copyright piracy is substantial, yes. The problem is the narrow tailoring. It could have done – Congress could have done what it did in the Audio Home Recording Act, 17 U.S.C. § 1002(a). It could have simply said, "Let's stop the copying. Let's give people protection in their CD players."
Judge: The copying of copy.
Sullivan: Can't make copies of copies. That's --
Judge: Any indication that you know of why they didn't do it?
Sullivan: There's no indication in either the legislative record, Your Honor, or in the record below. The only reference in the District Judge's entire opinion to why it didn't is he said, "Well maybe the technology doesn't exist yet." Footnote 206 saying maybe the technology does not exist yet is not an empirical record sufficient to satisfy Turner. I see that my time is up.
Judge 2: That's okay.
Judge: If you're gonna tell us that it's not narrowly tailored because they didn't use another technique --
Sullivan: Your Honor, the burden --
Judge: -- you have show us that that narrow technique is available.
Sullivan: Your Honor, the burden is on the government to show that it's not, with the greatest respect. It's clear under Turner that the government has to have, and under Denver area, and Denver area the court said, "If there's another way of doing it in a different statute, and Congress used a more restrictive way without explaining why in the statute in question, the less restrictive alternative should have been adopted without an explanation for the government." I reserve the rest --
Judge: No, no, no. Stay, stay.
Sullivan: Thank you Judge __________.
Judge: But in fact, the – from your standpoint you can't assure us that the – what was done with the audio digital tapes works with this?
Sullivan: Your Honor, the adoption of the DMCA cut off the kind of research which might have led to technological protection against second generation copying. It's precisely the adoption of the DMCA that --
Judge: Well, you worry me when you say you cut off the research. That sounds like if people work hard enough ten years from now, they'll be able to use the technique of the audio tapes --
Sullivan: Your Honor, there's nothing --
Judge: -- but what about today?
Sullivan: There is – today – the burden rests with the government, but for a technique that was invented and adopted for audio CDs for the notion that the scientists of the quality of those in this country who've invented the Internet not to be able to come up with a way of preventing second generation copies just because it's pictures rather than sounds is an implausible proposition. Of course, Congress could have explored --
Judge: Is it?
Sullivan: Absolutely. The – again, Judge, the burden is on the government --
Judge: I wouldn't have thought it was so. If that's so implausible, then regardless of who has the burden is a matter of ultimate burden of persuasion and 50/50, you're siding with a baseless[?] record with examples of people doing exactly what you say the government should have done.
Sullivan: Your Honor, the judgment below has cast such a chill throughout the scientific community that professors such as Professor Felton of Princeton, who was one of the witnesses below, have stopped speaking at scientific conferences, lest the recording industry bring actions against him. The idea that there would be wide discussion of alternative technologies to protect this is itself questionable now that this chill has been cast, but let me just suggest there's one narrower way you might go. We suggest that you vacate the judgment below, that you reverse the judgment below and vacate the injunction in its entirety, but should you disagree with that, you should at least make a belinking[?] – the anti-linking provisions of the injunction which are of the District Court's own invention and go far beyond the statutory terms of 1201(a)(2). He said that you can't even post instructions on how to get to DCSS – an address.
Judge: No, he didn't say "You can't." He said "This defendant can't."
Sullivan: He said, "This defendant can't."
Judge: He didn't say "The world can't."
Sullivan: That's correct, Your Honor.
Judge: And most of the briefing here is as if he issued a worldwide injunction. If it was a defendant class of all journalists, professors, researchers, citizens of the world – it's a very precise injunction.
Sullivan: But Your Honor, there's nothing in this injunction that suggests it would be limited in a future case any differently from the way it was written here. There's no limitation to those who intended to aid and abet copyright infringement.
Judge: Well, I have no doubt that when that next case that you fear is brought, you are gonna be very advantageable[?] in urging the District Judge in the next case not to apply this case because it is distinguishable. You're not gonna get up there and express error[?] on behalf of the professors and say, "Oh, that's right, we're stuck." This _______________ current and so the game is over. You're gonna have a hundred arguments why the next injunction suit has to be critiqued.
Sullivan: Judge Newman, the mere fact that the District Court's injunction below and opinion below might have bristled with special hostility for this particular set of defendants should not confuse the issue. The injunction as written would apply equally to the New York Times website or to a professor of law or a professor of computer science were they to post this to their site because the point here is to prevent the use of possible people out there unknown in the public for copyright infringement.
Judge: If the New York Times have a link to a website and that website had other links which had DCSS on it, you think they would be as covered as this defendant is by this injunction?
Sullivan: Your Honor, this --
Judge: They'd meet his three tests?
Sullivan: The injunction does not cover by its terms anybody else except these defendants of course, but the logic of the injunction would apply equally to a New York Times link, because the logic of the injunction is if there's a public dissemination of DCSS or a public dissemination of the address of DCSS somewhere else, that's a violation of the digital _______________.
Judge 2: Well, let's talk about this.
Judge: Is that enough? Just that?
Sullivan: That's enough under the injunction, Sir.
Judge: But not enough under his opinion?
Sullivan: Paragraph 2 of the permanent injunction says the Court, I'm sorry, paragraph 1C.
Judge: Okay, but the injunction – we've agreed the injunction limits this defendant. When you get to the New York Times, they're not limited by this injunction at all. The only thing they could argue is we are fearful that some language of his opinion means that some day they may enjoin us.
Sullivan: Your Honor --
Judge: You can't go back to the injunction in order to say the New York Times is in trouble.
Sullivan: Your Honor, the logic of the opinion would apply equally to the New York Times because what the District Court enjoined was, I quote from paragraph 1C of the injunction, "But dissemination of DCSS." Dissemination is part of the news function of the New York Times just as much as it was at 2600 Magazine.
Judge 2: Would it satisfy you if the Court were to effectively modify the injunction to make it clear that we're dealing with – at least at this point only – with these defendants?
Sullivan: Well, Your Honor, you don't need to modify the injunction to establish that, so no, we would be satisfied if you were to vacate to the injunction as against these defendants, and in the alternative, simply excise the linking language from paragraphs 1C and paragraph 2.
Judge: Kathleen Sullivan, for your concern for the Times, one of his criteria to enjoin linking is when the person puts a site on their web page and it links to another site and in fact on that other site there is some DCSS, one of his criteria, the defendant, in your example, the New York Times, must create or maintain the link for the purpose of disseminating the technology. Do you mean to say that the New York Times has the purpose of disseminating everything that is on every site to which they have a link?
Sullivan: Absolutely, Your Honor.
Judge: That's their purpose?
Sullivan: The New York Times exists to disseminate, and anything in public is a dissemination.
Judge: To disseminate everything that is on all linked sites?
Sullivan: Absolutely. Your Honor, what's missing here is the purpose to aid and abet copyright infringement. There's an obvious less restrictive alternative of limiting this to those disseminators who have the intent to incite copyright infringement by analogy to Brandenburg or to those disseminators who have the intent and the relationship by which they're aiding and abetting copyright infringement. There's no such limitation here as to Corley and to 2600 anymore than there would be in a similar injunction against the New York Times. The term "dissemination" affects, of course, everything that any news magazine or newspaper does. The newspaper disseminates. If it prints out an address to a website, it is disseminating the information on that website. It may not be embracing it with the same editorial fervor, but its surely disseminating. So Your Honor, we believe that an injunction that was modeled exactly like this one would stop the New York Times from engaging in its news function. Recall too --
Judge 2: But if it didn't?
Sullivan: If it didn't – yes.
Judge 2: Let's go back. I'm interested in the particular parties here, and I want to make sure I understand your view of the state of the record. There isn't any doubt, is there, that without this injunction the plaintiffs would suffer enormous damages. I mean, you're not contesting that?
Sullivan: We do contest that, Your Honor. There's no proof on the record whatsoever that copyright infringement has been caused by DCSS which is now, of course, freely available around the world because it's available on foreign websites, and there was not a single iota of proof, in fact it was stipulated by the plaintiffs in the record at 334 to 336 of the appendix that there was no copyright infringement traceable to the use of DCSS. If they couldn't find it in this trial with this amount of firepower, it's not clear where it's going to be found.
Judge 2: What was the purpose that these defendants had in the creation and dissemination of this program?
Sullivan: Multiple purposes, Your Honor. The record is clear that there were multiple purposes. One was to inform the scientific community to make accessible to the scientific community in the way that things in the Internet community are, through open public dissemination over the Internet, the qualities of the studio's use of encryption, and the ease with which it might be decrypted. The other was simply to publish truthful information lawfully obtained. Nobody here broke any laws to obtain DCSS, a function of the press that's protected under a long line of cases such as Florida Star. The purpose was also to show the world how easy it was to decrypt these movies, and some people in the audience might use decryption for bad purposes, but many don't. And when Congress is trying to stop a harm, it's got to tailor its restrictions much more closely to the harm.
Judge 2: Can we assume that for these purposes, the defendants have in fact violated the Act?
Sullivan: As interpreted by the District Court, so we would urge you to hold either that the Act is unconstitutional as applied or that the Act must be read more narrowly in order to avoid those constitutional questions.
Judge 2: Assuming, for the argument, that they violated the statute, you don't contest that unless they're enjoined they'll continue to violate?
Sullivan: No, we don't contest that, Your Honor, but we reserve – we don't waive our statutory defenses, I just don't press them here. The District Court interpreted the statutory defenses of encryption research and of reverse engineering so narrowly that they don't begin to encompass what would be fair and non-infringing uses in the non-digital world, so we reserve a right to claim that those statutory defenses should have been applied. We urge you to reverse the judgment --
Judge: Should it apply to this defendant?
Sullivan: Yes. Well, they should have been applied to this defendant under a constitutional interpretation of the exceptions. To bring this statute into line with the First Amendment, you either have to narrow its liability provisions to permit the publication of truthful, lawfully obtained information by a news magazine on a website unless and until it can be shown that it's being used overwhelmingly for infringing purposes. And that hasn't been shown here.
Judge 2: I want to go back to this question of damages that the plaintiffs would suffer. It's not obvious to you that if anyone can download DCSS from the Internet that some people will engage in fair uses and other people will just steal movies? That's not clear on this record?
Sullivan: Your Honor, there are easier ways to steal movies. What this does is --
Judge 2: That may be, that may be. What's I'm dealing with – that's another case.
Judge: In this case, with this --
Sullivan: Your Honor, it's extremely important to separate what DCSS does and what copy infringement does into two steps. Decrypting does not automatically make an infringing copy, and there's a second step involved --
Judge 2: Not automatically, but clearly it permits illegal copy.
Sullivan: Well, it does – but DCSS itself does not – is not an act of copyright infringement. Were you to have a different program, DCSS plus DivX, which decrypted and compressed and automatically posted to the Internet, an issue not -- you know a hypothetical -- not at issue in this case, maybe that program would be the functional equivalent of a program for copyright infringement. But DCSS gets you into the house. It doesn't determine whether once you're in the public library inside the house you've stolen the book or just browsing it lawfully. DCSS can be used for both, and unless and until Congress or the plaintiffs below could show that DCSS has substantially more infringing uses than not, showing they didn't make but they stipulated they couldn't make, intermediate scrutiny, the minimum standard that applies in this case, requires your reversal. I've taxed your patience with going over my time. I'll reserve one minute for rebuttal if that's all right, Judge _______.
Judge 2: Thank you.Sullivan: Thank you very much.
Alter: May it please the Court. My name is Daniel Alter, I'm an Assistant United States Attorney in the Southern District of New York, and I will try my hardest to do more than hover for the United States during this argument. Your Honor, if we were here today talking about a software program that shut off navigational systems on airplanes or shut down smoke detectors in public buildings, I don't think anyone could reasonably argue that the First Amendment would bar the government from prohibiting the dissemination and distribution of that software, and the reason why is because that software creates a very real possibility of harm that it will be used and it will injure others in that use. That is precisely what is at issue here. Now, make no mistake --
Judge: Well, it isn't precisely. There's no – you can't make fair use of navigational systems but you can make fair use of copyrighted material.
Alter: I will happily address the fair use component in a moment, Judge Newman, but my point is this. DECSS is a digital crowbar. It, in the vernacular of defendants, was created for the sole purpose of ripping open DVDs so that would be fair users perhaps, infringers more likely, can make copies of these films. And they can't just – they don't just make a copy, they make a perfect copy. And then they are able to take that perfect copy and put it on the Internet and distribute it worldwide. This is something that Congress can protect against. Now, we've heard argument that really all the defense in this case were attempting to do was to disseminate truthful information, and that DECSS in and of itself can be included in a Haiku. Well, that argument was rejected over 50 years ago by Justice Black, not someone who's hostile to the First Amendment, in the Gidney case that we cited to the Court. In Gidney, what was at issue was peaceful labor picketing, and the court upheld an injunction notwithstanding the fact that the protester said "All we're trying to do is publicize truthful information about the buying practices of the company we're protesting." Court said, "That may well be, and in fact your placards may be written in English and easily read or incorporated into a poem, but the fact of the matter is the Court need look at the overall course of conduct to determine whether in fact any arguable expression falls within the protection of the First Amendment." Well this Court in recent decisions such as Vartuli brought the principles of the Gidney case into the 21st century. Writing for the Court in Vartuli, Judge Sack explained that when you have a computer program which is distributed for the purpose of being an automatic system to complete a task, that distribution of the program does not partake of communication that falls within the protection of the First Amendment. Implicitly, the argument there is you have to look at the overall course of conduct in distributing the computer program. Well that's exactly what the defendants here did, Your Honors. They distributed DECSS, and when you look at the overall course of conduct and the risk, the threat that is created by that global distribution, you have a risk that Congress clearly can regulate against. Now, I'd like to move to the O'Brien test – the intermediate level scrutiny which counsel contends the statute fails. Well, in fact its very helpful to put it into a larger context before we go to the specifics. To begin, the copyright clause creates a constitutional license by which Congress can create and regulate a market in protectable expression. That's what it does. Under the First Amendment cases, the Supreme Court has held that Congress may act to correct a market flaw, if you will, when that action will assist in creating a greater amount of speech. The case I'm referring to, in fact, is the Turner Broadcasting case, because there Congress upheld -- I'm sorry, the Supreme Court upheld Congresses must carry provisions finding that the economic reality of the industries involved, the cable industry and the free broadcast television industry, was such that the cable industry could get a chokehold on free broadcasters and potentially cause a great deal of harm. So cable stations were required to carry free broadcast signals so that there would remain a vibrant-free broadcast television source of speech in this country. Well, I think you can map this theory onto this case quite directly. What Congress has done in the DMCA is attempt to correct a flaw in the copyright market for digital works. It is clear from the record in this case and from the congressional record that digital technology, unlike any prior medium of communication, has a particular problem, if you will. Some people see it as being a wonderful advancement, others a problem. And that problem is that it can be copied – perfect copies – and disseminated worldwide in an instant. Counsel argued that the purpose – that the content neutral purpose of Congress with regard to the DMCA was to prevent copyright infringement. I take issue with that. I would view it in a different way. And it's quite clear from the legislative reports what Congress was trying to do. Congress was trying to allay the concerns of content providers – people who made movies, put books in digital form, music in digital form -- later concerned that this inherent nature of the digital world need not be a threat, and you can put that material on the Internet because we will enact a provision that allows you to protect it technologically. So the purpose of Congress there wasn't just solely to stop infringement, but it was a carrot to ensure that more speech was made available for the public to use. It had a pro-First Amendment benefit. In fact, the Supreme Court has repeatedly reminded us that copyright is itself an engine of free expression, so Congress was trying to augment the amount of content on the Internet. Now, with regard to the --
Judge: I'm not sure you're describing anything different than she was. I think you're just emphasizing different consequences of having the copyright law.
Alter: I agree with you, Your Honor, that it's the flip side, but it's an important flip side insofar as it responds to counsel's argument that the record is devoid of any evidence or support to --
Judge 2: You don't want her to occupy the ground as the proponent of the First Amendment.
Alter: Certainly not, certainly not. And, I – Congress surely didn't view it that way. There are, and I have for the Court, and I can cite hearings and testimony in prior incarnations of the bill which ultimately became the DMCA, where Congress took testimony from numerous providers of content on the Internet, and they all testified before Congress that they would refrain from putting as much content on the Internet unless they had a technological way of protecting it. That is the evidentiary basis required by Turner.
Judge: Can you help us understand why they couldn't use the Digital Audiotape Recording Act technique?
Alter: I think I can, Your Honor, although there isn't much discussion of it in the legislative reports. As we note in our brief, that Act does not address the very problem that the DMCA targeted, which is once you have the original and you make one copy, you can then make numerous copies that you post somewhere in cyberspace, where all you need is one copy to post on the Internet and then everyone who seeks to obtain an unlawful copy need only click onto a site on the Internet and download.
Judge: Is that not true of an audio digital tape?
Alter: They dealt with individual copies, individual disks, so that it made it difficult for people to make numerous disks which they could sell on the street corner. We're not dealing here with a street corner forum. It's not a protection for the street corner. We're dealing here with the Internet, and that's why I believe that Act just does not address the concern that Congress was wrestling with.
Judge: With audio digital tapes, can't the user make one copy without infringing?
Alter: That's exactly right.
Judge: And without it violating that Act?
Alter: That's right.
Judge: Perfectly true copy.
Alter: That's right.
Judge: As far as most human ears are concerned, indistinguishable from the original?
Judge: Can they post that on the Internet?
Alter: Well, under the Home Recording Act, there's no – you run into at that point in time a potential copyright violation.
Judge: If you post the copy?
Alter: I would suggest that that might violate the Copyright Act.
Judge: But you get to make the first copy?
Alter: That's correct.
Judge: So why couldn't they do that with DVDs?
Alter: Well, my point is is that it would not give the content providers any protection, because if someone made one copy --
Judge: Wouldn't it give them the same protection the Audio Act gave the music providers?
Alter: No. Because once – let me try to explain. Once that copy is on the Internet, if it is naked --
Judge: Well, maybe you can enjoin them from putting it on the Internet. That's an idea.
Alter: Well, that's what we have with the --
Judge: But the fair use arguments here are all about making that first copy. The little girl, the professor, the journalist, all those people, they don't want necessarily to put it on the Internet. Maybe in their heart of hearts they do, but their best fair use argument is they want to make one copy.
Alter: That's the best argument. I don't hear them to be making that argument here though.
Judge: Well actually they're going to make all their arguments, and it wouldn't even surprise me if they overstate them a tiny bit. [Laughter] The government does that too.
Alter: From time to time I understand. [Laughter]
Judge: But I'm trying to get at all we need to decide here. not the most everyone would like us to decide.
Alter: And that's precisely, Judge Newman, why I would urge you not to reach any of the fair use issues, because this case does not deal with fair use.
Judge: But if there is a technology available, or in Sullivan's terms, technology that has not been shown to the unavailable, that would provide protection from making more than one copy, then why isn't this statute not sufficiently tailored?
Alter: Let me back up because I must be unclear, and I would like to explain that. The other act which they're relying on required that there be placed into technological devices that made copies, or into the actual musical content copies, some technological device that prohibited any more than one copy be made. And that would prohibit infringers from taking a digital home audio disk and making a million copies because arguably they could do it, and what they would then do, what they were trying to prohibit, was stop that infringer from making a million copies and going out to the corner of Broadway and selling them. My point is that you need only make one copy to have catastrophic infringement because if you make one copy and put that on the Internet, anyone from around the world can go onto the Internet and download the copy you've made, because it exists purely in digital form, whereas the other act prohibited the copies as contained on disk. There would be an inability to make innumerable, individual copies. Once you have the one copy and put it into cyberspace, people can download, so the prior act -- when I say download, they can go onto a website, they can draw the information off the website, and the website is contained in electronic digital form.
Judge: You're saying that's not true of the digital audio tape?
Alter: It's not true, and I'll tell you why. Because the DMCA stops you altogether from making that first copy, or helps you stop the infringer from making the first copy.
Judge: Oh yeah, I understand this Act stops. The question is, what could you do when the Digital Audio Act was passed before you got to this Act? Couldn't you do the --
Alter: No one was thinking about the Internet when the Digital Audio Act was passed.
Judge: Alright, so you're saying it's not that the technologies are different. It's that when the Audio Act was passed, and one copy could be made, the full significance of the Internet wasn't appreciated, and therefore Congress had to come along and do a more restrictive technique.
Alter: That is --
Judge: It's not that they're technologically different, it's that the Internet is more of a factor today than it was at the time of the Audio Act.
Alter: That captures the point precisely. I would add that since the first act was passed in 1991-92, there have been substantial advances in digital technology, but you've captured the legal point. And that's why that offering up this other act as an alternative means is really meaningless because it doesn't attack -- it doesn't give solace to the content providers which Congress was trying to do to augment the amount of content on the Internet.
Judge: What do you say about the issue that has been raised whether fair use requires either the best technologically available means of making fair use or at least a method that is very superior, maybe not the absolute best, but at least not something as rudimentary as setting up a camcorder in front of the TV set while the DVD is playing.
Alter: I say to that, Your Honor, I have yet to see a case which would support such a view. The Supreme Court in Abend said that a copyright holder could essentially hoard his or her work for the entire term of the copyright. In our brief we cite the Duncan case from the 11th Circuit. In our footnote on page 54 --
Judge: Oh yeah, they don't have to put it out at all. But my position is, once they put it out, once the maker or creator of copyrighted work puts it out for public consumption, that triggers a whole range of fair uses, right?
Alter: Well, Duncan says to that point that a copyright holder need not make his or her work the most available to the public. That's presuming that it does make it available in some capacity. Assuming that it does put it out to some extent, Duncan says there's no obligation on a copyright owner to make it the most publicly accessible, and that's what I understand the defense to be arguing, that if you put it out it has to be out on digital, because they would like to make all these special fair uses that could only be done, say they, on digital format.
Judge: Well, I think your argument -- well, they'll speak for themselves, but I think they would put it a little differently, that once the copyright proprietor puts it out in digital form, it certainly -- certainly if a copyright provider put the movie out in analogue form, I don't think a fair user could say "I'm suing you because you didn't put it out in digital form." But once the copyright proprietor puts it out in digital form, the argument is the fair user gets to make fair use in digital form. That's the argument we have.
Alter: Of course, the flip side to that argument is that the content provider may choose not to put it out in digital form --
Judge: But these did.
Alter: Yes, they did in part with the understanding that there was going to be protection for it. These treaties --
Judge: But that can't make it constitutional, the fact that they hoped we would uphold the law?
Alter: Well, I would back up from that, Your Honor.
Judge: A lot of people have been disappointed. They have done things thinking there was protection --
Alter: Sure, and they end up --
Judge: -- and found there wasn't.
Judge: So, their expectation -- this isn't Fourth Amendment reasonable expectation.
Alter: That certainly doesn't carry today.
Judge: A reasonable expectation of a First Amendment limitation.
Alter: That's not our argument.
Judge: I don't think.
Alter: I would take it one step back, and I'd like to make this point if I may, that the court really need not, and we urge the Court not to grapple with these fair use questions, because at heart that claim is an over breadth claim. They claim to be able to stand in the shoes of would-be fair users. They readily concede that they have never actually circumvented any work.
Judge 2: That's the next case, as it were.
Alter: That's right. And in that case --
Judge 2: These defendants – there's nothing in the record in your view that suggested that they are afraid of fair users?
Alter: They don't claim to be, and what I think is particularly relevant about that is fair use, as the Supreme Court tells us, is a case-by-case analysis. You can't decide it with large. They put up a whole category of potential fair uses, but we don't know at any given point whether there were other possible fair uses. This goes to your point, Judge Newman, that is someone required to have the best available material for a fair use? I have not found such a case. It also goes to the point of whether fair use is even understood to be an aspect of the First Amendment or required by the First Amendment. Judge Newman, in your Roy Export decision, you made passing discussion of the fact that the notion of fair use in a First Amendment privilege to use something might at that time be considered only in the most unique instance where the expression and the information merge. It was in essence a merger theory that might be incorporated by the First Amendment. Other courts have viewed it similarly. I'm not here to say that the First Amendment doesn't have a component of fair use or require it. I just say it's not time to decide that case, and because it is a very important issue, the Court ought to await the case that has all the facts relevant to deciding whether or not any one individual can call upon the Constitution to set aside copyright protection.
Judge: Let's turn to one other thing. The District Court took some guidance from Times and Sullivan, and in some sense adapted limiting principles that were used for defamation, applied them here, presumably to save the constitutionality of the statute, right?
Alter: Well, I understand he took it not so much to save the constitution of the statute, but to justify his linking injunction.
Judge: Alright, well to save the constitutionality as to applications to linking, is that clear?
Judge: Alright. From the government's standpoint, do you think he correctly identified the factors that he derived from Sullivan? Were they too broad, too narrow, or just right?
Alter: We argue, Your Honor, in the brief that Sullivan was not a good template because Sullivan involved defamation law which regulates pure speech, and here at issue is the regulation of his – Your Honor and another Judge _______ -- a speech that has, at best, speech with a very overwhelming functional component. We do agree with the Judge's essential structure for linking liability insofar as there is an intent requirement as Your Honor noted in the prior colloquy. We take issue, although not a definitive position, with the Judge's requirement that it be shown by clear and convincing evidence, because there is Supreme Court authority that says you assume preponderance unless Congress says otherwise and unless clearly very, very important rights are at stake and there is Supreme Court authority to suggest that incidental burdens on First Amendment rights don't fall into the category that require clear and convincing evidence. So--
Judge 2: Did Judge Kaplan indicate in his opinion that that was the required standard, or what was he simply finding it by clear and convincing evidence?
Alter: No, he said -- he added that as an element to imply imposing a linking injunction. Now, we say that but for the clear and convincing evidence, that injunction essentially coincides with the direction of the Supreme Court in the Healey case which deals with associational -- regulation of associational conduct which may or may not have First Amendment protection, depending upon what the intent of the association is and whether the association seeks to forward an unlawful purpose. That's essentially what Judge Kaplan did without saying it. He didn't cite those cases, but we think in this particular context it works, because here you had the defendants associating, if you will, with other websites. They were aligning themselves with those sites that contained the program for download. And not only they did that, they connected a link. Now, I think for useful purposes, a kind of simple analogy helps. You might look at a link as kind of a shuttle bus on the Internet. It takes a user from website to another website. Now, you might have a link that takes a user from one website to another website where they're passing out handbills, and that activity – and the intent was to take you so you could get a handbill. And from our point of view, that's perfectly appropriate and that link would enjoy constitutional protection. You might have a situation as you did in this case where the bus would take the user to a different website where the website was handing out contraband, and the purpose of taking those users to that website was to facilitate their obtaining contraband. It's our position that in that scenario the government can stop the bus and that the injunction is appropriate, because what you have here is, in essence, an unlawful association. One which has a purpose and takes active steps toward facilitating and gaining an unlawful end.
Judge: Well, before we make the New York Times too nervous, I want to know what you mean by "purpose" in that analysis.
Alter: I agree with what Your Honor --
Judge: The Times has its website up – I guess it normally does. Take something that is a website that its main purpose is to provide a lot of links. There are several that are just collections of links, various encyclopedias, dictionaries, collections of information. And if you go to those links and find on them hundreds of other links that you sometimes do, and on one of those pages is DCSS, is the first website liable under the Act?
Alter: I would say no. I would say under the Judge's analysis and the injunction no, because there you haven't shown, even by a preponderance of the evidence, that the purpose of the initial website was to shuttle you.
Judge: So, in your view we can affirm the New York Times can relax?
Alter: Yes, absolutely, because I think that you would have to show that the purpose, the design of the Times was to afford a shuttle bus to all those readers who wanted to obtain this unlawful software to do what is prohibited. And may I back up on that point for a second? We heard a lot about the notion that this record is devoid of any evidence that anyone used DECSS to actually decrypt a DVD. In response to that, I would note that this Court in the Ondavis case recently decided by Judge Laval, noted that the fundamental elements of a copyright claim is to establish that there is a valid copyright in existence and there has been an unlawful copying. But the Court noted and underscored this, there need be no pleading that the copyright holder actually was damaged, and the reason for that is Congress, in its predictive judgment, took the obvious into account and said if somebody is copying something that is protected under a copyright, and with regard strictly to copyright, unless it's fair use or some other permissible use, it's gonna hurt the holder of the copyright, and here we have the same thing. Congress could reasonably within its predictive judgment assess the fact that if people are making this software which rips open the DVD and makes it available for anyone to pirate, if someone is going to put that out on the Internet for the world to obtain, then it's more likely than not, in fact it's compelling, that it's going to be used to the detriment of the copyright holder. So I would strongly argue that this notion that this record is devoid of a single incidence where they could show that person used this website to do it, is ultimately irrelevant.
Judge 2: Can I ask you something about this injunction, how it actually works? There was a suggestion by Ms. Sullivan that it really doesn't accomplish even the purpose of the injunction. She may have a different view of my interpretation, but I'm – I mean, once it's out there on the Internet, is it possible, by virtue of this injunction, to achieve the objectives of the proponents of this legislation?
Alter: To some extent –
Judge 2: And to achieve the purpose of this injunction?
Alter: Yes, Your Honor, I would say yes to a degree. I mean, it's not a perfect cure by any means. I mean, that's just a reality. Once it's out and it's disseminated among people who use the Internet, you can't put that genie back in the bottle and presumably it will be used. However, Congress doesn't have to create the perfect cure in order to address a problem. And clearly to the extent –
Judge 2: So it can enjoin these defendants from, and as many other defendants presumably as are in due course subject to the injunction?
Alter: That's right. And to the extent that they get this software off the Internet, they are cutting back on some people using it. Again, it's not a perfect solution.
Judge 2: I'm really a novice in these matters. How could it get it off the Internet? Could it actually get it off the Internet by the use – or actually by an injunction or series of injunctions along these lines?
Alter: I think you'd run into problems with extraterritorial application of statutes. For example, the underlying treaty which gave rise to this is – has been adopted by several numerous nations, but there have been those nations that refuse to partake, so where there are in this world people who are putting this software on the World Wide Web and they're not subject to the treaty and they're not subject to the processes of the United States, I, you could access those websites?
Judge 2: But it's not in your view a problem as far as the lawfulness of the injunction or the constitutionality of the statute?
Alter: No, I would say – Congress has said, you know, when attacked – I'm sorry, the Supreme Court has said that when Congress attacks a problem, it doesn't have to solve the whole thing at once, that incremental –
Judge: Well, in that respect, isn't this case really about the next generation of encryption, not the current one? That you and the – I guess we'll hear from the plaintiffs – want to be sure the act can be applied to the crypting devices so that when they go to the next generation of encrypting programs, and the law, in your view, has been upheld, there can be an immediate injunction to stop the spread --
Alter: Certainly, Your Honor.
Judge: -- so that what we're really talking – at that extent, we're talking about the next case, aren't we?
Alter: Yes, because ultimately this is not a DECSS-targeted statute. I mean, it may encompass many other things in fact besides encryption technology. I couldn't speculate as to what, but I agree with Your Honor –
Judge: Let me go back to the linking part -- intrigues me and somewhat troubles me. You use the bus example, the carrying of information. I'm just wondering, if you have something that clearly can be considered contraband, such as obscene works, you can prosecute trafficker in obscene works. Can you prosecute the newspaper that publishes a list of bookstores that carry obscene works?
Alter: Solely the list, Your Honor?
Judge: Yeah. For listing, where you can buy them.
Alter: I would say in some circumstances maybe yes and some maybe no. And the reason I give such a kind of wavering response again goes back to Gidney. All roads seem to go to Gidney back 50 years ago, because there you had to look – what was at issue was clearly an isolation-protected speech. You had a placard, you had a newspaper built. But what the Court instructed is you had to look at it as a part of an overall course of conduct, so it's hard for me in the abstract to answer, Your Honor, because I think if it were truly a listing, there might be a very good argument that no, that would work a prior restraint and would be subject to that analysis, although perhaps fall with outside the prior restraint doctrine on particular –
Judge: So we can check prior restraint out by saying, "Could you come after them after the fact, after the public --"
Alter: Right, exactly, and then in those circumstances I think you'd have to look at what the course of conduct was, you'd have to look at it as an integrated whole. It may well –
Judge: Whether they're trying to promote the sale of the –
Alter: Exactly, what are they doing? Are they actively providing a device which falls –
Judge: But there's no requirement, as I understand the linking portions of this opinion, that the defendant be found to be anxious to have people use DECSS on DVDs? His test is they must know it's there and link it for the purpose of getting you to it?
Judge: But not – it doesn't require a purpose that the end user -- or the end recipient of the program use it to decrypt?
Alter: And I would say that, right.
Judge: And you're not requiring that?
Alter: No, because I would say that partakes of the –
Judge: But in your – when I asked you about listing bookstores, it sounded like you went a little bit into "Well, if they were really doing something that was sort of . . . part of the conduct of purveying obscene works, then maybe we could prosecute."
Alter: They would have to be intentionally facilitating the distribution of contraband, whether it be obscene works or –
Judge: Right. But the end illegality here is the infringement.
Alter: No. Not under the Act. The illegality –
Judge: Well, the end justification for permitting this whole approach needs to ensure people can't infringe, isn't it?
Alter: Well, I'm afraid you're looking at the flip side. Yes, Your Honor, to some extent, but the end is also to encourage people to put it on the Internet. I mean, I think it's a two-prong consideration, and ultimately it is to make the world of easy infringement a smaller world for –
Judge: But we're still, under this approach of this injunction, or the opinion at least, enjoining somebody who has not been found to have the purpose of wanting people to use. He may in fact want them to infringe, but the three tests that the Judge posits do not include encouraging them to actually decrypt?
Alter: That's right, and the reason why I think that's permissible ultimately turns on whether the Court finds that the statute is permissible as a constitutional matter, because Congress also only was concerned that it be made available. Whether or not it presumed, I think, is a matter of rationality that a significant number of people would use it for the unlawful end.
Judge 2: Thank you Mr. Alter.
Alter: Thank you very much, Your Honor.
Judge 2: Mr. Sims. You probably thought you'd never get here.
Sims: I was hoping I would, Your Honor. Thank you. I'm Charles Sims. I represent the Motion Picture Studio appellees. Dean Sullivan began with a valiant attempt to sever 1201(b) from 1201(a)(2), the provision dealing with access and the provision dealing with copying, and so I want to start there. It is not the case with this case, or Judge Kaplan's decision was only about access. The plaintiffs rely on 1201(b) as well as 1201(a)(2). Judge noted that in his opinion at 26:30 of the appendix, and nothing in the opinion of the Order makes claim that it relies only on the access provision. Now here, there is one decryption utility or decryption device that accomplishes both. What it does is it frees the encrypted signal to put the signal form or in a clear manner so that it can be copied, and that is exactly what Congress attempted to avoid. What Congress was aiming at here was the provision of additional security to copyright orders and orders, as Mr. Alter said repeatedly, to induce the provision of the creation and the dissemination of copyrighted works more broadly for the public which is, after all, the purpose of the Congressional copyright clause. Congress said "Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously, copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy."
Judge: You distinguish (b) and (a) – what is it?
Sims: (a)(2) and (b). In this case --
Judge: Well, you distinguished then that one covers access and the other doesn't? I thought one of them covered protecting the work and one covered protecting the right?
Sims: Well, protecting the work is protecting access to the work. In other words, if the work is encrypted, if there's a secure envelope around the work, (a)(2) is what you can sue on if somebody has distributed to the public the provision that would allow you to get to the work, and (b) is the provision that you could sue on if somebody had disseminated the device that would allow you to copy the work. In this case, there's no difference because there is only one device and it serves both purposes. The way this device worked was to encrypt, to protect the digital signal from ever reaching the part of the computer which would allow it to be transmitted onto the Internet or to any other computer. So, I think that the distinction Dean Sullivan was trying to make between those two provisions doesn't work here. This injunction was in fact predicated on both, and I think it's kind of –
Judge 2: Can you address Ms. Sullivan's response, comments regarding the actual empirical record before Congress when it enacted this legislation, and indeed, she also referred to the absence of such a record in the record of this case?
Sims: I want to respond in two ways, Your Honor. First, the test and the inquiry that the Court undertook in Turner is not applicable here. There are, without complicating matters unduly, two kinds of O'Brien kind of cases. In one, Congress was trying to reach conduct. Not speech-related conduct, but simply legislating with respect to conduct. That's the O'Brien case, the Clark case involving sleeping in the park, the Albertini case involving a __________ orders, and in those cases the Supreme Court has never required the kind of close attention to the record that was before Congress. In the Turner case is a different kind of matter, because there Congress really did undertake legislation that was focused on the media and focused on what people could say and what outlets they could own, and in that case the Court did require some sort of closer attention to the record that was available, but one can search Albertini, Clark, O'Brien, and all the other O'Brien cases that deal with pure regulations of conduct as this one is and not see any kind of such requirement or inquiry. Second, some of the legislative history we've put in the addendum to our brief, which is why it's so thick, there are substantial, additional portions, hearings where Congress heard from music industry, the publishing industry, I think various sports people, people on the other side, 65 law professors, and so there is clearly here, much more than there ever had been in Congress in the Turner case, an extraordinary record demonstrating that the digital age posed new dangers to copyright owners, and in particular to the dissemination-inducing function that copyright has. There was, after all, a treaty signed by many, many countries, and Congress enacted the DMCA to comply with that treaty, and to induce publishing industry and others to have the freedom and the comfort and security to make their works available to the public. Now, with respect to the standard of review –
Judge 2: Let me continue a little bit. What about Ms. Sullivan's comment that there was no finding anywhere in the record regarding any non-innocent use?
Sims: I was surprised to hear that, Your Honor. It is true that the studios at trial were unable to tie a particular motion picture decrypted by DCSS, and the reason is is forensic. There is no fingerprint that is left when a motion picture is decrypted. You can't tell technologically at least so far what mechanism was used to decrypt it, but Judge Kaplan made extensive factual findings about the harm faced by the studios here.
Judge 2: Actual harm?
Sims: Actual harm. Well, actual threat of harm [laughter] and after all, the statute provides for injunctive relief to restrain or prevent, I think are the words. He found, at page 315, "The availability of DCSS on the Internet has effectively compromised plaintiff's system of copyright protection through DVDs, requiring them either to tolerate an increased piracy or to expend resources to develop and implement a replacement system unless the availability is terminated." It's analogous to publication of a bank vault combination in a national newspaper, and therefore this incessant repetition that you didn't show a particular film was decrypted by DCSS, aside from the fact that we had experts at the trial who did, it is – what Congress was trying to afford –
Judge 2: Who did what? What did the experts do?
Sims: Well, we had an expert who had a graduate student who went on to the Internet and got a hold of a decrypted copy of a major motion picture release. He didn't download it from the Internet; he had to make the connection on the Internet and then go to some place, as I recall it, to obtain it, but having watched what has happened to the music industry with unencrypted materials, in Napster requires no great feat of prediction to understand the risk that the motion picture studios, and the publishing industry for that matter, face, and the justification for this law. The fact is that all of the problems Dean Sullivan identifies are a function of the consequence that the machines are dumb. They don't distinguish, and they can't distinguish, between what someone at a university will do with it and what a pirate will do with it. And Congress considered all of that and decided to bar the public provision of the machines and to create a narrow exemptions for particular uses on which otherwise if it had afforded a fair use defense, which it considered and rejected, might have been available under such a defense. Now, I did not hear a serious argument that the statute was subject to strict scrutiny, and unless the Court has questions on that point, I think that the notion that it is not narrowly tailored within the meaning of intermediate scrutiny is indefensible. The fact is that the statute bars the public provision of these devices, and throughout the range that it does that, it does exactly what Congress was hoping to accomplish, namely it makes copyright infringement the Napsterization of motion pictures less likely. There is a suggestion that was made that the AHRA provides a model for a less restrictive means, and I think – the first point I'd make is that by saying that one slipping between less restrictive means and strict scrutiny and less restrictive means and intermediate scrutiny, but in any event, the fact is that the AHRA was, as I think Judge Newman elicited from Mr. Alter, it was not addressed to the problem of Internet copying. It was enacted in 1992. Congress was focused on a much narrower problem, namely the problem of digital audio tape, and the AHRA doesn't apply to computers at all. That, I think, is the holding of the Ninth Circuit in two cases now, the Diamond Rio case and the Napster case, so I don't think the AHRA can be found to be a less restrictive alternative when it was designed to address a different kind of problem and not the harms posed here.
Judge 2: When was the Digital Millennium Copyright Act enacted?
Sims: 1998, Your Honor, and the legislative history makes plain that it's the Internet and network transmissions that is –
Judge 2: It's undoubtedly irrelevant, but was there no effort at that time to include digital audio tapes within the scope of the statute?
Sims: Actually, there was not. If music is encrypted, then obviously it's subject as any copyrighted work would be to the DMCA. With respect to the AHRA, the one final point that I'd like to make is that there is, of course, this quid pro quo under that Act, and there are royalty mechanisms that go along with the machines which Congress allowed to be imported and the tapes which would henceforth be sold, but it has never been the case that motion pictures were subject to the scope of fair use that Congress concluded – or the scope of use that Congress concluded, then the AHRA would be permissible. That is, there is no case in which any Court has said that the back-to-back copying of a videocassette, for example, or a DVD onto another one, would be constitutional. Sony dealt with time shifting off-air, but there is certainly an extent of tradition even of usage of music in a different way than motion pictures. Dean Sullivan suggested that floor—
Judge 2: And why is that?
Sims: Well, I think partly it's that the amount of investment in motion pictures is entirely different. I mean, a motion picture may cost a hundred million dollars to make, so Congress may well have or courts may well have seen a different kind of calculus. But the right that Congress afforded in the AHRA to make one copy, one personal copy, of a sound recording from a digital audio tape, and that is a right, by the way, that the Ninth Circuit is, as I say, held does not apply to copying off computers, simply has no application to motion pictures. There's certainly no case that would suggest that it would.
Judge: What do you say about the argument that one thing the statute does is in effect extend the term of copyright?
Sims: Well, I guess the first thing I'd say would be what Judge Oak said in the manufacturing clause case, which is "We'll deal with that when we get to it." It is nowhere near a problem now. When and if it turns out to be one, Congress can deal with it. The register of copyright in an extraordinarily intensive proceeding made findings that this was not a problem now.
Judge: Why is that? Don't things fall into the public domain every day?
Sims: Well, they do, but there's nothing in the product that has been produced disseminated to the public since enactment of the DMCA that would preclude fair use or just use of materials after they fell out of copyright. That is, a DVD, for example, of say, It Happened One Night, it's out of copyright, I don't know whether it is or not, but if it were, number one, it's available in videocassettes, number two, anyone can take a DVD player and display that film on a television set to the public in Times Square. There are enormous range of fair uses of all works, and they are not precluded – fair use is not precluded, or use is not precluded just because access is difficult. The fact is --
Judge 2: If indeed there is an effective extension of copyright, is there a problem?
Sims: Well, the DC Circuit, in a lengthy opinion over the last few months in the __________ case, I think, concluded that there wasn't. I don't think that question is presented in this case, that's for sure.
Judge: But if – I'm surprised your answer to the term argument is there can always fair use because it's not just –
Sims: Well, there can be use –
Judge: -- that you connect fair use after the term.
Sims: I thought I said use, Your Honor.
Sims: There can be use, I mean, after the term's over, one doesn't need to meet the criteria for fair use, you're entitled to use.
Judge: Exactly, exactly.
Sims: But I don't think it's the case that the existence of encryption precludes use.
Judge: Well again, we're back to it does preclude use in digital form.
Sims: It – well, it precludes perfect digital rotation, that's correct. Whether the studios or other copyright owners, we talk about publishing companies as well, would simply make the works available at that point in another form, is a question that's years off in light of the –
Judge: Or permit the encryption after the term of the copyright?
Sims: Yes, but what Congress –
Judge: Yeah, but – I appreciate you quickly agree with that, that they could permit decryption afterwards. The difficulty is that if the Act, as it does, bars the manufacture of decryption devices, then when those works fall into the public domain over time, where are the decryption devices programs going to be to enable people to decrypt things in the public domain?
Sims: Well, Congress has multiple interests to accommodate here. The interest in protecting the security of the copyright system so that new works can be created and disseminated, and the problem of users of old works, and there are certainly numerous ways Congress can attempt to deal with those. There are numerous ways the private market would attempt to deal with those without jeopardizing the former to serve the latter, and that's really what the case – the problem that the appellants face.
Judge: What is it? From the industry standpoint, what do you suggest?
Sims: Well, the industry could make copies of older movies available, but the fact is that fair use has –
Judge: In non-digital form? Is that what you mean by copies?
Sims: Yeah, well, or in unencrypted digital form. There are many paintings, Your Honor, for example, which have long passed out of copyright, but that doesn't give me a right to go into someone's living room and look at them. There are motion pictures that are screened in theatres, and a condition of entrance is ordinarily that you cannot make a – take a camera in with you and make a copy of that. Those kinds of restrictions that govern access are privilege of copyright owners or former copyright owners, and they do not raise First Amendment problems to the existence of those property rights.
Judge: Thanks very much, Mr. Sims. We'll here from Ms. Sullivan. Why don't you take three minutes?
Sullivan: Thank you, Judge __________. I'll make five points in three minutes. They'll each be brief. First of all, you asked about the availability of technologies that would enable the prevention of second generation copying, and I've informed Judge Newman and Judge __________, in answer to your earlier questions, that those technologies do exist now, although they did not at trial. There are now technologies that do allow you to watch the DVD in an exploding form, watch it two or three times, and then not be able to be watched again. We'd be happy to file supplement the letter, if you'd like more detail on those. Second point, on linking, Judge Newman is precisely correct that the prohibition on the link here is exactly like a prohibition on the New York Times writing an article that lists the addresses of stores that sell obscenity or contraband. That is, even assuming somebody's doing something unlawful when they go to those stores, the First Amendment surely bars the prevention of a newspaper or a news magazine from publishing their address in a story. Third point, Mr. Sims tried to argue that the Turner standard does not apply here. That argument is without merit. Surely the Turner standard applies here fully, and therefore requires an empirical record of the harms that Congress is trying to prevent, and they may not be real – they may not be threats, they must be real. They may not be possibilities or speculations, they must be actual. And Turner was a case about filtering out broadcast signal over a cable wire. It was every much about the kind of speech that combines speech and conduct as this case is about. The Turner standard plainly applies, and the O'Brien standard is really no different. An empirical here is required, Congress didn't provide one, neither did the defendants below. Fourth point, on 1201(b), Mr. Sims again tried to suggest that this is -- somehow he ran rescue the flaws in the 1201(a)(2) case by saying it's really a 1201(b) case, and maybe that would be more constitutional. Judge Kaplan did not find a 1201(b) violation below. He focused in his logic of his entire opinion on 1201(a)(2), and quoted the language of 1201(a)(2) in the operative language of paragraph 1 of the injunction. If there's a 1201(b) issue, surely this requires reversal and remand for further findings. DCSS does not copy at the same time as it decrypts. It decrypts. It does not automatically copy, and therefore there's a material issue of disputed fact about whether 1201(b) could possibly be applied to DCSS. And last, this is not a case about disseminating the combination to a bank vault, as Mr. Sims suggested, because a copyrighted work is not now, and never has been, akin to a bank vault, which has an absolute barrier to entry by anyone. Quite the contrary. A copyrighted work is more like a house with a public library, or a house in which you can't come in the front door, but you're certainly allowed to be on the sidewalk and look in and take photographs of it and think about buying it someday, make otherwise fair uses of the existence of the house. What DMCA does is build a giant fence way out at the street that keeps people from even getting on the sidewalk to see the house. This is not a case about breaking into bank vaults or breaking into houses, and this is not a case about a digital crowbar, or if it is, it's a case in which the government has tried to impose, in violation of the First Amendment, strict liability for having a crowbar, whether you're a carpenter or a thief. First Amendment does not allow that. Thank you very much.
Judge: Can I ask you one thing about what you first said, that there does exist technology that would sort of carry out the audio home technique. Did you say to us, or do you know, does that technology permit the first copy to be made, or does it even bar that?
Sullivan: I don't know the answer to that, Your Honor. We'd be happy –
Judge: Well if it allows the first copy, and that copy can then be put onto the Internet, then this Mr. Alter right, that the technique of the Audio Act has been overtaken by technology.
Sullivan: Judge Newman, I think it would be wise, since none of this is in the record, if we try to clarify that in a supplemental letter. Under the full sail doctrine, it's not the first copy that's the problem, it's the copies beyond that. Congress is certainly free to try to stop the second generation copies. Okay? Can we supplement that with a letter?
Judge 2: Yes. Let me give you instructions on that, and I thank you Ms. Sullivan.
Sullivan: Thank you.
Judge 2: The parties only, which is to say not the amici, shall be afforded an opportunity to submit letter briefs to respond to any questions that may have arisen during oral argument. Such letter briefs shall be no longer than ten pages, double spaced, and shall be due at the clerk's office or court no later than the close of business on Wednesday, May 10, 2001. We'll reserve decision. We're adjourned.