Dept. of Justice Supplemental Brief

in Corley v. Universal Appeal (June 20, 2001)

[22 pages.]

MAY 30 2001
Roseann B. MacKechnie, CLERK

U.S. Department of Justice

United States Attorney
Southern District of New York

100 Church Street
New York. New York 10007

May 30, 2001


Hon. Roseann B. MacKechnie
Clerk of Court
United States Court of Appeals
     for the Second Circuit
United States Courthouse
40 Foley Square
New York, New York 10007

Re: Universal City Studios, Inc. v. Corley
       Dkt. No. 00-9185 (2d Cir.)

Dear Ms. MacKechnie:

This office represents Intervenor United States of America (the "Government") in the above-referenced appeal. The panel (Newman, Cabranes, C.JJ., Thompson, D.J.) heard oral argument in this case on May 1, 2001. By Order dated May 8, 2001, the Court modified its oral instruction, previously issued from the bench, permitting the parties to submit supplemental briefing. In accordance with the May 8th order, this letter constitutes the Government's supplemental submission, and we respectfully request that you forward the enclosed copies and accompanying legislative materials to the members of the panel for consideration.

A. The Government's Response to Issues Raised By Defendants At Oral Argument

At oral argument, defendants attacked the premise upon which Congress enacted 17 U.S.C. § 1201 ("§ 1201") as factually unsupported. Having failed to submit any evidence in the district court regarding alternative measures that would be equally effective though less restrictive than § 1201, defendants nonetheless also maintained that the Digital Millennium Copyright Act ("DMCA") was insufficiently tailored. Their claims are entirely without merit. The factual record underlying the DMCA convincingly supports Congress's conclusion that § 1201 will promote the. exchange of expressive works in digital format, and the statute is appropriately tailored for First Amendment purposes.*

* Of course, should the Court conclude that defendants' dissemination of DeCSS software does not constitute protected expression under the First Amendment, see Brief for Intervenor United States of America ("Gov't Br.") at 15-27, it need not reach either of these issues.

Given the ease with which infringers can copy expressive works in digital format, and then distribute them world-wide almost instantaneously, Congress concluded that copyright holders would refrain from placing their works on the Internet absent some form of effective protection. See Gov't Br. at 27. Congress therefore enacted S 1201, with its prohibition against the dissemination of circumvention technology, as an incentive for copyright holders to use the digital medium as a platform for making their intellectual property accessible to the public. See id. at 27-29. Consequently, the statute seeks to increase -- not to limit -- the public availability of a wide variety of expressive materials. As a speech enhancing measure, § 1201 helps to "assur[e] that the public has access to a multiplicity of information sources." Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 633 (1994) ("'Turner I"). The Supreme Court has described this goal as "a governmental purpose of the highest order, for it promotes values central to the First Amendment." Id.

When "reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgment of Congress." Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) ("Turner II") (citation omitted). In this regard, the judiciary's "sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id. (citation omitted). Congressional findings warrant such deference "in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions." Id. (citation omitted). As the Supreme Court, has instructed, "[t]his principle has special significance in cases, like this one, involving congressional judgments concerning regulatory schemes of inherent complexity and assessments about the likely interaction of industries undergoing rapid economic and technological change." Id. at 196. Thus, "[e]ven in the realm of First Amendment questions where Congress must base its conclusions on substantial evidence, deference must be accorded to its findings as to the harm to be avoided and the remedial measures adopted for that end." Id.

The factual basis supporting the enactment of § 1201 is unquestionably substantial. In February 1993, President Clinton formed the Information Infrastructure Task Force ("IITF"). Chaired by the Secretary of Commerce, the IITF included officials from numerous federal agencies responsible for the development and application of information technologies. Its mission was to articulate and implement a National Information Infrastructure ("'NII"), which, among other technologies and facilities, incorporates the Internet. After holding public hearings at which numerous witnesses testified, and receiving voluminous written submissions during several comment periods, the IITF produced a 1995 report and legislative proposal: Intellectual Property and the National Information Infrastructure -- The Report of the Working Group on Intellectual Property Rights (1995), also known as the "White Paper."

The White Paper observed that the NII's mutual benefits for both "authors and consumers" -- additional markets, greater product choice, and rapid distribution -- were "by no means assured." Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (September 1995) at 10, <>. Based upon an extensive evidentiary record, the White Paper concluded that

[c]reators and other owners of intellectual property rights will not be willing to put their interests at stake if appropriate systems -- both in the U.S. and internationally -- are not in place to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment. Likewise, the public will not use the services available on the NII and generate the market necessary for its success unless a wide variety of works are available under equitable and reasonable terms and conditions, and the integrity of those works is assured. All the computers, telephones, monitors, printers, switches, routers, wires, cables, networks and satellites in the world will not create a successful NII, if there is no content. What will drive the NII is the content moving through it.

Id. at: 10-11 (emphasis in original); see also id. at 16 ("unless the framework for legitimate commerce is preserved and adequate protection for copyrighted works is ensured, the vast communications network will not reach its full potential as a true, global marketplace"); id. at 178 ("without providing a secure! environment where copyright owners can be assured that there will be some degree of control over who may access, retrieve, and use a work, and, perhaps most importantly, how to effectuate limits on subsequent dissemination of that work without the copyright owner's consent, copyright owners will not make those works available through the NII").

Responding to the White Paper's legislative proposals, Congress held hearings on a precursor bill to the DMCA, known as the NII Copyright Protection Act of 1995. During those hearings, representatives of the music, publishing, and software industries gave testimony emphasizing that many copyright owners would not make their works available digitally for Internet publication without the sort of statutory protection provided by § 1201.*

* See Hearings on H.R. 2441 Before the Subcommittee On Courts and Intellectual Property of the House Committee on the Judiciary (Part 2), 104 th Cong., at 40 (1996) (statement of Edward M. Murphy) ("'The public will have access to more copyrighted works via the NII if copyright owners have some assurance that their works will not be subject to widespread, unauthorized copying."); id. at 72 (statement of Barbara A. Munder) ("without effective protection we cannot risk our hard work and investment in cyberspace where it is so easy to copy, retransmit, and alter our property without our permission, and often without our knowledge"); id. at 85 (statement of Garry L. McDaniels) ("Without the measures now before Congress, it is true that . . . software companies will make some software available on the Internet for promotional purposes. But we just could not afford to risk putting our best programs and multimedia works out there. . . . and millions of others would not enjoy the full promise of the Internet and other digital highways."); id. at 185 (statement of Richard Robinson) ("Without an effective legal foundation for the protection of intellectual property, the most commercially valuable content will be withheld and the potential to create new first rate multimedia and digital content will simply not develop, let alone flourish."); id. at 402 (statement of Arthur B. Sackler) ("So, if copyright owners can protect what they own, then they will participate in this new and magnificent medium with fervor."); id. at 435 (statement of James R. Cregan) ("Without this protection, copyright owners -- both individual and corporate -- simply will not make use of the NII."); id. at 600 (statement of Pete Higgins) ("Without this protection, the Internet will not carry the compelling content necessary to drive the further development of the Internet."); id. at 617 (statement of Daniel Warren and Andrew Jacobson) ("Any system that does not recognize that a great range of publications -- including, especially, newsletters -- derive their commercial value from being browsed, runs the very serious risk of eviscerating the incentives the Copyright law was intended to create, and of driving newsletter and other types.of publishers either out of business or, at the least, off of the NII.").

Additionally, both the Register of Copyrights and the Commissioner of Patents and Trademarks advised Congress that § 1201's prohibition against circumvention technology was necessary to broaden the availability of copyrighted materials in digital format and on the Internet.*

* See Joint Hearing on H.R. 2441 and S. 1284 Before the Subcommittee On Courts and Intellectual Property of-the House and Senate Committees on the Judiciary (Part 1), 104 th Cong., at 98 (1995) (statement of Marybeth Peters) (without § 1201, "'many copyright owners will be reluctant to take the risk of making their works available on the NII"); id. at 112 (statement of Bruce A. Lehman) ("The commercial potential of the NII will only be realized if the intellectual property rights of creators and distributors of commercial products are adequately protected. Only then will they be willing to make their works available on the NII.").

In sum, the predictive judgment embodied in § 1201 "was reasonable and supported by substantial evidence in the record before Congress." Turner II, 520 U.S. at 211. It is therefore constitutionally sound. Congress was "under no obligation to wait until the Internet withered from lack of content. Id. at 212. Rather, Congress acted wisely "to prevent" that harm by fortifying a new medium of communication against very real and crippling technological assaults. Id.

Defendants' other unsubstantiated claim -- that § 1201 is somehow inadequately tailored in light of the Audio Home Recording Act, 17 U.S.C. 5 1002 ("AHRA") -- is equally unavailing, To start, as the legislative history makes crystal clear, the AHRA was an industry-negotiated response to infringement in the music recording business; it imposed specific technological standards on electronic recording devices, but did not address either the market-specific concerns of other media industries such as film and publishing, or the technological and enforcement. concerns that are unique to the distribution of materials on the Internet. See generally H.R. Rep. No. 102-873(1) (1992), reprinted in 1992 U.S.C.C.A.N. 3578; H.R.Rep. No. 102-873(II) (1992), reprinted in 1992 U.S.C.C.A.N. 3600. Indeed, the rampant, unauthorized copying and distribution of musical works over the Internet has proven the AHRA to be a relatively ineffectual response to digital piracy. See A&M Records, Inc. v. Napster. Inc. 239 F.3d 1004 (9th Cir. 2001).

In any event, "less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of content neutral regulations on speech," and courts "will not invalidate the preferred remedial scheme because some alternative solution is marginally less intrusive on a speaker's First Amendment interests." Turner II, 520 U.S. at 217-18 (citations omitted). Legislative deliberations over § 1201 "reflect awareness of" the AHRA's approach, id. at 219; Gov't Br. at 31 n.*, and Congress nevertheless adopted the DMCA's prohibition against trafficking in circumvention technology. That choice warrants great deference. See Turner II, 520 U.S. at 219. Because § 1201 is tailored to address the risks to copyrighted works inherent in digital technology, it meets constitutional requirements. See Gov't Br. at 29-33.

B. The Government's Responses To The Questions Contained In The Court's May 8th Order

As a threshold observation, the Government notes that several of the questions posed by the Court in the May 8 Order touch upon First Amendment issues not necessarily implicated by this case. In Name.Space, Inc. v. Network Solutions, Inc., 202 F.2d 573 (2d Cir. 2000), this Circuit wisely adopted a cautious approach to First Amendment claims involving Internet technologies. The Court recognized that

a decision involving the application of the First Amendment to new communications technologies, including the Internet, should be narrow, because a broad, decision rendered at this time [may be in error.] . . . A more evolutionary approach, involving the accretion of case-by-case judgments, could produce fewer mistakes on balance, because each decision would be appropriately informed by an understanding of particular facts.

Id. at 584 n. 11 (citation omitted).

Given the similar nature of this case, the Government respectfully urges the Court to adhere to the incremental approach taken in Name.Space, and to apply "the kind of particularistic, context-sensitive analysis that is appropriate" in these circumstances. Id. at 586; see also CFTC v. Vartuli, 228 F.3d 94, 112 (2d Cir. 2000) (applying "careful and particularized analysis" in determining that distribution of computer software did not warrant First Amendment protection). As Justice Breyer recently emphasized, courts "should avoid adopting overly broad or rigid constitutional rules, which would unnecessarily restrict legislative flexibility" in responding "to the challenges future technology may pose." Bartnicki v. Vopper, 532 U.S. ___ (2001), 2001 WL 530714, at *15 (U.S. 2001) (Breyer, J., concurring). This admonition is especially relevant where Congress has enacted legislation like the DMCA, which is specifically designed to promote the use of encryption and other technologies to address serious copyright-related concerns over digital piracy. Accord id. (legislatures should have sufficient flexibility to create "tailored provisions designed to encourage . . . more effective privacy-protecting technologies").


1. Are the anti-trafficking provisions of the Digital Millennium Copyright Act content-neutral?

Yes. See Gov't Br. at 24-27.

2. Does DeCSS have both speech and non-speech elements?

Yes. Although computer programs are "essentially utilitarian" works, Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 704 (2d Cir. 1992), insofar as they are comprised of code, computer programs do contain an expressive element. However, that fact alone by no means determines whether the First Amendment governs this case. "[T]he mix of functionality and expression" that comprises any particular computer program must be "sufficiently imbued with the elements of communication" to trigger First Amendment protection. Name.Space, 202 F.3d at 585 (citation omitted); see also Gov't Br. at 15-16.

3. Does the dissemination of DeCSS have both speech and non-speech elements?

The answer to this question largely depends upon both the manner and purpose of the dissemination at issue. See, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing Spence v. Washington, 418 U.S. 405, 410-11 (1974)). If, as in this case, someone has distributed operable DeCSS software as an "automatic system for" decrypting DVDs, that person has engaged in "non-speech activities" that do not warrant First Amendment protection, Vartuli, 228 F.3d at 112; see also Gov't Br. at 16-23. Because "'the purpose of such a delivery" is not "to provide the recipient with the text of recorded statements," distribution of DeCSS software as an automatic decryption system is not "like delivery of a handbill or pamphlet," and is therefore not "the kind of 'speech' that the First Amendment protects." Bartnicki v. Vopper, 532 U.S. ___ (2001), 2001 WL 530714, at *7 (U.S. 2001). In these circumstances, DeCSS software is nothing more than a digital crowbar for cracking open protected DVDs, and should be treated as such.

But if, for example, someone disseminated DeCSS code in furtherance of actual computer science or cryptographic research, that conduct could involve significant expressive components. Ultimately, whether an activity can be said to manifest a "speech element" depends upon the overall context or course of conduct in which that activity occurs. See Vartuli, 228 F.3d at 111; see also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).

4. Does the use of DeCSS to decrypt an encrypted DVD have both speech and non-speech elements?

No. The use of DeCSS to decrypt a CSS-protected DVD exhibits no speech elements. The Supreme Court has "rejected 'the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.' " Johnson, 491 U.S. at 404 (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)). It has also made clear that "First Amendment values may not be invoked," for instance, "by merely linking the words 'sex' and 'books.' " Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986) (adult booksellers enjoy no First Amendment protection against enforcement of state health codes). That same principle should apply equally to defendants' attempt to insulate their unlawful conduct by simply joining the words "decryption" and "programs." The act of decryption by computer software accomplishes a purely mechanical task and is entirely non-expressive. See Gov't Br. at 15, 18-19. It therefore does not implicate protected speech.

5. Does the existence of non-speech elements, along with speech elements, in an activity sought to be regulated alone justify intermediate scrutiny?

No. By itself, the combination of speech and non-speech elements in a regulated activity does not dictate the appropriate level of First Amendment scrutiny. Regulation of conduct that has an arguably expressive component can result in heightened. scrutiny, see. e.g., Johnson, 491 U.S. at 412 (statute criminalizing flag burning subject to "the most exacting scrutiny" (citation omitted)), intermediate scrutiny, see, e.g., Turner I, 512 U.S. at 661-62 (statute requiring that cable television operators carry broadcast television signals subject to intermediate scrutiny), or no scrutiny at all, see, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (applying promissory estoppel against newspaper for publishing truthful information on matter of public concern in violation of confidentiality agreement triggers no First Amendment scrutiny).

Thus, when "decid[ing] whether O'Brien's test applies," courts should primarily examine whether the governmental interest supporting a challenged regulation "is unrelated to the suppression of expression," rather than categorically parse the regulated activity's so-called speech and non-speech elements. Johnson, 491 U.S. at 407. Assuming that any constitutional scrutiny is warranted, "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny . . . because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue." Turner I, 512 U.S. at 644. Considering this diminished risk, intermediate scrutiny applies "even if [such regulations have] an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

6. If DeCSS or its dissemination or its use to decrypt has both speech and non-speech elements and is not subject to intermediate level scrutiny simply because of the non-speech elements, is intermediate level scrutiny appropriate because of the close causal link between dissemination of DeCSS and its improper use? See 111 F. Supp. 2d at 331-32.

Intermediate scrutiny is the highest level of scrutiny that is arguably applicable in this case because the challenged statute targets the risks of harm that are unrelated to the content of speech and are unique to digital media. The Supreme Court has warned that "[i]t would be error to conclude . . . that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or subset thereof) but not others." Turner I, 512 U.S. at 660. The "fact that a law singles out a certain medium . . . is insufficient by itself to raise First Amendment concerns." Id. (citation omitted). Thus, "heightened scrutiny" -- as opposed to intermediate scrutiny -- "is unwarranted when the differential treatment is justified by some special characteristic of the particular medium being regulated." Id. at 660-61 (citation omitted).

The DMCA addresses the "special characteristics" of the digital medium. Among these special characteristics are the technological ease with which digital works are copied and distributed world-wide, and the resulting susceptibility of such works to massive copyright infringement. The district court's causation analysis, see 111 F. Supp. 2d at 331-32, is simply another way of describing this technological justification for regulating the digital medium. See Gov't Br. at 37 n.*. And because this justification is, itself, the content-neutral basis for enacting the DMCA, intermediate scrutiny is the most exacting standard of review by which to judge the DMCA. See Turner I, 512 U.S. at 661.

7. If the District Court is correct that the dissemination of DeCSS "carries very substantial risk of imminent harm," 111 F. Supp. at 332, does that risk alone justify the injunction? In other words, does that risk satisfy the requirements for regulating speech under Brandenburg v. Ohio, 395 U.S. 444 (1969), thereby rendering unnecessary an inquiry as to whether non-speech elements of DeCSS or its dissemination or its use (if such exists) may be regulated under United States v. O'Brien, 391 U.S. 367 (1968)?

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court narrowly held that the government could "forbid or proscribe advocacy of the use of force or of law violation" only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action," id. at 447 (emphasis added). After deciding Brandenburg, however, the Supreme Court cast doubt on applying its standard to First Amendment cases that do not involve laws regulating advocacy. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842 (1978) (questioning "relevance" of "clear-and-present danger test" in evaluating statutory ban on publishing confidential information regarding judicial misconduct proceedings). This case is not about unlawful advocacy. Defendants crossed the line between permissible advocacy and impermissible conduct by trafficking in circumvention technology. Thus, any reliance upon Brandenburg to decide this appeal would be dubious at best.

On the other hand, the breadth and flexibility of the O'Brien analysis is extremely useful in circumstances such as these. Because DeCSS is a computer program, defendants maintain that their distribution of DeCSS software had an expressive element. This Court need not actually accept or reject defendants' position, though, because the O'Brien analysis permits courts to assume that a party's activity has an expressive element and go on to assess the regulation's validity in light off its content-neutral purpose. See O'Brien, 391 U.S. at 376 (proceeding "on the assumption that the alleged, communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment"). Thus, the relevant O'Brien analysis in this case is not whether the government can regulate the "non-speech" elements of DeCSS, but whether the government -- in regulating such elements -- can incidentally regulate the so-called "speech" elements of distributing DeCSS software, assuming any exist. The answer to that latter question is unquestionably yes. See Gov't Br. at 24-33.

8. Are the three criteria identified at 111 F. Supp. 2d 333 the correct criteria for determining the validity, under intermediate level scrutiny, of the use of DeCSS that has been enjoined?

The three criteria identified by the district court at 111 F. Supp. 2d 333 are the appropriate elements under the DMCA for issuing a valid content-neutral injunction against defendants, distribution of DeCSS software. Were a court merely evaluating the constitutionality of the DMCA,under the intermediate scrutiny standard, the district court's second criterion -- that there be "no other practical means of preventing infringement through use of the programs," id. -- would be too restrictive. Intermediate scrutiny requires only that a challenged regulation be narrowly tailored, such that "it promotes a substantial government interest that would be achieved less effectively absent the regulation." Turner I, 512 U.S. at 662 (citation omitted). The regulation "need not be the least speech-restrictive means of advancing the Government's interests," so long as it does not "burden substantially more speech than necessary" to achieve the intended goal. Id. (citation omitted).

However, the district court went beyond upholding the statute's prohibition against disseminating circumvention technology and granted injunctive relief. Assuming arguendo that defendants, distribution of DeCSS software as a device for decrypting CSS-protected DVDs qualifies as expressive conduct, the district court's order is arguably subject to the standard for content-neutral injunctions set forth in Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994). Under Madsen, a valid content-neutral injunction may "burden no more speech than necessary to serve a significant government interest." Id. at 765. The district court's "no other practical means" criterion, 111 F. Supp. 2d at 333, more than satisfies Madsen's heightened tailoring requirement for injunctions affecting speech. See Gov't Br. at 35.

9. If not, what modification or supplementation would be required to conform to First Amendment requirements?

None. The district court's analysis for enjoining defendants' posting of DeCSS software is constitutionally sound.

10. Are the three criteria identified at 111 F. Supp. 2d 341 and the "clear and convincing evidence" standard the correct criteria and the correct standard of proof for testing the validity of the injunction's prohibition of posting on the defendants, web site and of linking?

The three criteria and the "clear and convincing" evidentiary standard discussed by the district court at 111 F. Supp. 2d 341 relate only to the district court's order enjoining defendants from linking to other web sites that post DeCSS software for downloading.* The district court's criteria for establishing link-based liability under the DMCA are consistent with the constitutional limitations that inform government regulation of associational conduct, and therefore provide adequate protection for any First Amendment interests implicated by defendants' intentional affiliation with other web sites that offer DeCSS software. Defendants established those links for the specific purpose of aiding the unlawful dissemination of DeCSS software. See Gov't Br. at 44-45. By maintaining those links -- which automatically shuttle Internet users between web sites in order to facilitate their acquisition of contraband -- defendants crossed the "critical line for First Amendment purposes . . . between advocacy, which is entitled to full protection, and action, which is not." Healy v. James, 408 U.S. 169, 192 (1972).

* The appropriate criteria for enjoining defendants from posting DeCSS software on their web site are addressed in the Government's responses to questions 8 and 9, above.

Whether the "clear and convincing" evidentiary standard imposed by the district court is an appropriate construction of the DMCA is less clear. Because the DMCA is silent as to the intended burden of proof, the general "preponderance of the evidence" standard is presumed to apply in civil cases unless it would jeopardize some particularly important individual right or interest. See Gov't Br. at 46 & n.*. No such threat is apparent here. See id. at 46 n.*.

Moreover, the district court's reliance upon New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is misplaced. Sullivan's heightened evidentiary standard for defamation claims asserted by public officials modifies legal rules that regulate pure speech on issues of public concern. In contrast, application of the DMCA in this case affects the distribution of a mechanical device that seriously threatens the market for expressive works in digital format, and, at best, has only an expressive component. See Gov't Br. at 46 n.*.

In sum, we urge the Court to leave unresolved for now whether the First Amendment requires a heightened evidentiary showing to impose link-based liability under the DMCA. Defendants, conduct here would satisfy the clear-and-convincing standard in any event, see Gov't Br. at 45-46, and a "more evolutionary approach," which is "appropriately informed by an understanding of particular facts," would better serve the development of the law in this field of rapid technological change. Name.Space, 202 F.3d at 584 n.11 (citation omitted).

11. If not, what modification or supplementation would be required to conform to First Amendment requirements?

None. The district court's imposition of link-based liability under the DMCA in this case is constitutionally sound.


For the reasons set forth in this submission, and for the reasons set forth in the Government's main brief, the judgment of the district court should be affirmed.

Respectfully submitted,

United States Attorney

By: [Signature]

Assistant United States Attorney
Tel. No.: (212) 637-2741


cc: Kathleen Sullivan, Esq. and Martin Garbus, Esq.
      Charles S. Sims, Esq.
      By Overnight Delivery w/ enclosures

Original transcription and HTML by Cryptome, from hardcopy from Records Office, Second Circuit Court of Appeals.

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