2600 Magazine 2nd Cir. En Banc Appeal

in MPAA v. Corley, et al. (Jan 14, 2002)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Introduction

2600 Magazine hereby petitions for en banc review of the panel decision on the grounds that the decision makes new law that conflicts with governing United States Supreme Court and Second Circuit precedent in a case of exceptional importance.

The question in this case, one of first impression, is whether the Free Speech Clause of the First Amendment permits a district court to enjoin the publication on an Internet web site of a computer program ("DeCSS") that can be used to unscramble the content of digitally recorded movies, or the publication of hyperlinks to other web sites that publish that program, under the purported authority of a provision of the Digital Millennium Copyright Act ("DMCA") that bars "trafficking" in devices designed to circumvent technologies aimed at controlling access to copyrighted works. 17 U.S.C. § 1201(a)(2). The panel upheld such an injunction based on the mere speculation that Internet distribution of DeCSS would cause copyright infringement, even though it is undisputed that there was no demonstration of actual harm.

In reaching this conclusion, the panel made two novel and unprecedented rulings regarding computer code and Internet publication that warrant this court's en banc review. The panel held that, although computer code is "speech" within the meaning of the First Amendment, it is subject to greater regulation than other speech because of its "functional capability" to be executed by a computer as well as read by a human eye. Slip op. 7515-16. The panel further opined that, although not a single incident of copyright infringement using DeCSS had been demonstrated in the district court, the injunction was adequately narrowly tailored to satisfy the First Amendment because the speed and scope of the Internet create the potential for such harm: "Posting DeCSS on the Appellants' web site makes it instantly available at the click of a mouse to any person in the world with access to the Internet." Slip op. 7522.

The panel decision conflicts with governing First Amendment precedent. Even assuming that the government interest furthered by such an injunction (preventing theft of intellectual property) is content-neutral, the injunction fails the heightened scrutiny required of content-neutral speech restrictions under Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I); and Turner Broadcasting v. FCC, 520 U.S. 180 (1997) (Turner II). A fortiori, the order below fails the especially heightened scrutiny required of content-neutral injunctions of speech under the Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994).

The panel decision further conflicts with governing precedent by treating the publication of computer code on the Internet as "functional" speech subject to diminished First Amendment protection. This creation of a new subcategory of less protected speech conflicts with Reno v. American Civil Liberties Union, 521 U.S. 844, 970 (1997)(ACLU I), which held that the Internet is a fully protected medium of speech and that regulation of speech on the Internet is subject to ordinary standards of First Amendment scrutiny. It likewise conflicts with City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994), which held that content-neutral prohibitions foreclosing the use of entire media "can suppress too much speech."

Even if the panel correctly upheld the ban on posting DeCSS, its decision upholding the ban on merely posting hyperlinks to other web sites posting DeCSS should be held independently unconstitutional under settled First Amendment principles of intent and causation set forth in Brandenburg v. Ohio, 395 U.S. 44 (1969), and Bartnicki v. Vopper, 121 S. Ct. 1753 (2001).

Because of these plain conflicts with governing precedent, the panel decision requires correction by this Court sitting en banc. The exceptional importance of the questions in this case is plain: computer code is a crucial part of our scientific and political discourse. Scientists, programmers and hobbyists publish computer code in textbooks, journals, popular magazines, and discussion groups Ñ both on the Internet and in print. Hyperlinks are one of the most easily understood and widely used form of computer code and, are, quite literally, the lifeblood of the Internet. As one court observed, "the ability to link from one computer to another, from one document to another across the Internet regardless of its status or physical location, is what makes the Web unique." ACLU v. Reno, 31 F.Supp. 2d 473, 483 (E.D. Pa. 1999), cert. granted 121 S.Ct. 1997 (U.S. May 21, 2001)(No. 00-1293) (ACLU II). The panel's unprecedented decision to relegate Internet transmission of computer code to second-class First Amendment citizenship plainly warrants the scrutiny of this entire Court.

I. THE PANEL DECISION'S INCORRECT APPLICATION OF INTERMEDIATE SCRUTINY CONFLICTS WITH TURNER, VARTULI, AND MADSEN.

A. Turner.

Having correctly held that computer programmers express ideas and information via programming languages, and that publishing computer code is therefore fully a form of "speech" protected by the First Amendment, see Slip op. 7506-13, the panel erred in its application of First Amendment law to the district court's injunction. Even assuming that the injunction was aimed not at the content of DeCSS but rather at its capacity to be used to facilitate copyright infringement, content-neutral regulation of speech requires at a minimum intermediate scrutiny.^[1] See Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996), cert. denied, 117 S.Ct. 2408 (1997). The panel paid lip service to such a standard, see Slip op. 7522, but in fact applied a standard of deference wholly inappropriate to even content-neutral regulations of speech.

To survive intermediate scrutiny, content-neutral speech regulations must "not burden substantially more speech than necessary" to advance the government's interests. Turner I, 512 U.S. at 661-62; Turner II, 520 U.S. at 185. The burden of demonstrating this rests upon the government. Turner I, 512 U.S. at 664-665. The proper showing requires an empirical record "assur[ing] that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id. at 666.

The panel decision conflicts with this settled standard in two ways: the panel incorrectly failed to scrutinize the empirical record for "substantial evidence" to support the burden on speech, and likewise failed to scrutinize "the availability and efficacy of 'constitutionally acceptable less restrictive means' of achieving the Government's asserted interests." Id. at 668.

First, the panel failed to analyze properly whether §1201, as applied by the district court, burdens more speech than necessary. The panel admitted that under the injunction below, Appellant is flatly "prevent[ed] . . . from conveying to others the speech component of DeCSS." Slip. Op. at 7522. It is undisputed that the prohibition of circumvention tools would burden scientific speech, especially in the area of computer security. See Amicus Brief of ACM Committee on Law and Computing Technology and Amicus Brief of Bellovin, et. al. (computer security experts).

In addition, both the district court and the panel acknowledged that their rulings would reduce the speech that results from fair uses of copyrighted works. The district court noted that barring use of DeCSS would prevent, for example, the use of digital quotations from a film by a movie reviewer, digital analysis of portions of the sound track by a musicologist, or clips of scenes by a film scholar to make a comparative point. Universal v. Remeirdes, 111 F. Supp 294. at 337 ("[n]umerous other examples doubtless could be imagined"). Appellant and Amici described many others.

Yet rather than carefully consider the legislative record underlying §1201, or the evidence and argument from the parties and amici on the impact of the injunction on speech involving DeCSS, the panel simply recited the Turner legal standard, improperly attempted to shift the burden of proof to defendant (slip op. 7523), and then summarily concluded that "[t]he prohibition on the Defendants' posting of DeCSS satisfies that standard." Id.

This conclusory approach contradicts Turner I, where findings concerning the actual effects of the regulations on protected speech were labeled "critical to the narrow-tailoring step of the O'Brien analysis, for unless we know the extent to which the . . . provisions in fact interfere with protected speech, we cannot say whether they suppress 'substantially more speech than . . . necessary.'" Turner I, 512 U.S. at 668. The panel's cursory application of intermediate scrutiny to §1201 contrasts sharply with the exhaustive review of the empirical record to which the Supreme Court subjected the Cable Act must-carry rules in two rounds of litigation in Turner I and Turner II.

The panel likewise failed to consider "the availability and efficacy of 'constitutionally acceptable less restrictive means' of achieving the Government's asserted interests," as Turner requires even under intermediate scrutiny. 512 U.S. at 668. In doing so, this Court "can take Congress' different, and significantly less restrictive, treatment of a highly similar problem as at least some indication that more restrictive means are not 'essential' (or will not prove very helpful)." Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 757 (1996).

The panel stated "the appellants have not suggested, much less shown, any technique for barring them from making this instantaneous worldwide distribution of a decryption code that makes a lesser restriction on the code's speech component." Slip op. 7522. But to the contrary, the Panel did receive substantial argument and evidence describing an array of means for preventing digital copyright infringement without the blunderbuss of banning decryption programs altogether. See Opening Brief at 57-60. At oral argument the panel requested and then later accepted even more information from Appellants about the alternatives that were available to Congress to prevent digital copyright infringement. See Supplemental Brief at15-17; Order of May 30, 2001 allowing exhibits in support of supplemental letter brief.

Those less restrictive means included the following:

1. Create explicit and enforceable exceptions for circumvention and circumvention tools for fair and noninfringing uses. Opening Brief at 57-58.
2. Restrict circumvention liability to those who intentionally aid and abet copyright infringement or who conspire to infringe copyrights, following the path taken by "burglars' tools" statutes. Reply at 17-19; ACLU amicus brief at 19-22; Supplemental brief at 16.
3. Limit liability to circumvention for illegal purposes, as outlined in the Boucher and Ashcroft bills, rather than extend liability to tools makers and tools disseminators. H.R. 3048, 105th Cong. § 8 (1997) (Boucher); S. 1146, 105th Cong. tit. III (1997) (Ashcroft). Opening brief at 58, footnote 42; Supplemental Brief at 16.
4. Protect fair and non-infringing uses the same way it protected ephemeral recordings in the DMCA. 17 U.S.C. §112(a)(2). There, Congress expressly required copyright owners to "make available to the transmitting organization the necessary means" for making ephemeral copies and authorized self-help if such means are not made "timely" available. Id. Congress could have done the same for fair use: required that copyright owners using technological protection measures make copies of their works available for fair or non-infringing uses, allowing circumvention and the dissemination of the circumvention means should they fail to do so. Supplemental brief at 16.
5. Follow the model of the Vessel Hull Design Protection Act, 17 U.S.C. §1309, passed as part of the legislative package that contained § 1201. Under that statute, a disseminator of information is liable only if he or she "induced or acted in collusion with" one who actually gains unauthorized access to a work. Opening brief at 58, footnote 42; Supplemental Brief at 16.

Inexplicably, the panel ignored almost all of the available alternative approaches, even after specifically requesting supplemental briefing on them, stating merely that "a content-neutral regulation need not employ the least restrictive means of accomplishing the governmental objective," and suggesting that Appellants had fatally failed to "present evidence" of such alternatives in the district court. Slip op. 7523, n.28.

Neither reason excuses the panel's failure to follow Turner's clear guidelines for intermediate scrutiny. Even if a content-neutral regulation need not be the least restrictive alternative, the availability of an array of less restrictive alternatives casts doubt on the narrow tailoring of Congress's choice. And the existence of other federal statutes taking alternative legislative approaches to similar problems is something of which this Court may take judicial notice without any fact-finding in the district court. Thus the panel's refusal to give more than cursory consideration to the evidence and argument presented about these other options available to Congress was clear error in need of correction by this Court.

B. Vartuli.

The panel's approach to narrow tailoring also conflicts with this Court's ruling in Commodity Futures Trading v. Vartuli, 228 F.3d 94 (2nd Cir. 2000). In Vartuli, this Court rejected a complete injunction banning the distribution of a computer program that could be executed to trade commodity futures illegally. Holding that the First Amendment would be violated if the ban applied when the program was "being used solely as speech, if, for example it [was] being advertised, sold and used as an academic commentary on commodities markets," id. at 112, this Court narrowed the injunction to reach only the dissemination of the program for the purpose of automatic trading of futures contracts. Id. In contrast to Vartuli, the panel's failure here to narrow the district court's injunction to allow the publication of DeCSS for purposes other than copyright infringement was First Amendment error.

C. Madsen.

Finally, even if the panel decision could somehow be squared with the requirements of ordinary intermediate scrutiny of content-neutral laws, it falls far short of the especially heightened scrutiny required of content-neutral injunctions. Under Madsen, Chief Justice Rehnquist wrote that intermediate scrutiny must be applied with special stringency in the case of injunctions, because "[i] njunctions [carry] greater risks of censorship and discriminatory application than do general ordinances." Content-neutral injunctions must "burden no more speech than necessary to serve a significant government interest," Madsen 512 U.S. at 766, a standard that is not satisfied by the panel's conclusory finding that the injunction below did not burden a substantial amount of such speech.

II. THE PANEL DECISION CONFLICTS WITH RENO v. ACLU AND CITY OF LADUE.

By effectively foreclosing the Internet as a medium for speech like DeCSS, the panel decision conflicts with ACLU I, 521 U.S. at 970, which held the Internet a fully protected medium of speech, and City of Ladue v. Gilleo, which held that the First Amendment forbids even content-neutral "laws that foreclose an entire medium of expression," id., 512 U.S. at 55 (citing cases). In striking down an ordinance that banned a common, cheap and convenient medium of expression Ð signs placed on one's property -- the City of Ladue Court explained:

Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent--by eliminating a common means of speaking, such measures can suppress too much speech.

Id. (footnote omitted). For computer scientists, programmers and hobbyists, the Internet is not only a "common means of speaking," but the most appropriate. To deny these speakers the Internet as a medium of expression for computer programs is to strike at the most obvious and essential medium for their speech.

The panel's rationale for upholding the district court's ban on Internet publication of DeCSS was the Internet's ability to permit "instantaneous worldwide distribution" of posted information. Slip op. 7522. In short, the panel upheld the injunction because the Internet is too good a medium of expression. Yet the Internet's efficiency and its ready availability as a "common means of speaking" were the very features that led the Supreme Court to embrace the Internet as a fully protected medium of expression in ACLU I:

From a publisher's standpoint, [the Internet] constitutes a vast platform from which to address and hear from a worldwide audience of millions or readers, viewers, researchers and buyers . . .. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, . . . the same individual can become a pamphleteer.

ACLU I, 521 U.S. at 853, 870. The Internet is not a second-class speech medium. Id. ("no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium").

By using the Internet's "efficiency" as a medium of expression as the basis for downgrading the level of First Amendment protection accorded web posting, the panel stood ACLU I on its head. This conflict with governing Supreme Court precedent furnishes independent reason for this Court's en banc review.

It is no answer to suggest, as did the panel, that the Internet is somehow a less protected medium of speech for computer programs because of the "functional" capacity of such programs. The panel reasoned that computer programs have "both a nonspeech and a speech component" and that "the posting prohibition of the injunction targets only the nonspeech component." Slip op. 7521. The panel thus concluded that the injunction can ban the posting of DeCSS, "regardless of whether DeCSS code contains any information comprehensible by human beings that would qualify as speech." Slip op. 7522.

But what computer programs say cannot be separated from what they do. Banning computer programs for what they enable computer users to do necessarily bans what computer scientists and programmers may say.

In other words, the "functional capability" of a computer program to instruct a computer to perform a task is inseparably intertwined with its speech component. The panel's comparison of the anti-trafficking regulations to "a restriction on trafficking in skeleton keys identified because of their capacity to unlock jail cells, even though some of the keys happened to bear a slogan or other legend that qualified as a speech component," Slip. op. at 7522, wholly misses this point. The key is still a key without the message. But computer programs do not just "happen" to have a speech component; they are texts written in a programming language. One cannot detach the nonspeech from the speech component. Thus, even if the injunction targets only the nonspeech component, the effect on speech is identical. To aim at one is to aim at both.

In other areas where such functional and expressive components are inseparably intertwined, the Supreme Court has not hesitated to apply a more exacting form of intermediate scrutiny than normal. For example, in City of Ladue, the Supreme Court invalidated a content-neutral sign ban even though signs posted on houses or front lawns involved the "functional" creation of "visual blight and clutter" inseparable from the expression of ideas. In Turner, the Supreme Court applied exacting scrutiny to must-carry rules even though they involved inseparably the "functional" commandeering of a segment of fiberoptic cable as well as mandated programming.

And in the context of charitable solicitation, involving the "functional" exchange of money as well as support for ideas, the Supreme Court has consistently "refused to separate the component parts of charitable solicitations from the fully protected whole." Riley v. National Federation of the Blind, 487 U.S. 781, 796 (1988); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980) (solicitation is "characteristically intertwined with informative and perhaps persuasive speech . . . [and] without solicitation the flow of such information and advocacy would likely cease"). And "where . . . the component parts of a single speech are inextricably intertwined," the Court has held, "we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical." Riley, 487 U.S. at 796.

The same is true here. The panel's "artificial and impractical" attempt to sever the speech and nonspeech components of computer programs should be reviewed by this Court en banc.

III. THE PANEL'S TEST FOR ENJOINING HYPERLINKS CONFLICTS WITH BRANDENBURG AND BARTNICKI.

The district court injunction barred Appellant not only from posting (publishing) DeCSS on his web site, but also from posting hyperlinks to other web sites that he "kn[e]w" contained DeCSS for the "purpose of disseminating that technology." Remeirdes, 111 F. Supp. at 341; see Slip op. 7526. In so doing, the district court fashioned out of whole cloth, and without any statutory guidance from the DMCA (which nowhere in its text or legislative history refers to hyperlinks), a novel test for the constitutional permissibility of such a restriction, cobbled from the standards of New York Times v. Sullivan, 376 U.S. 254, 283 (1964). But Sullivan does not present an appropriate analogy, and this test conflicts with the appropriate standards, set forth in Brandenburg, and Bartnicki at 1753, for enjoining speech that might bear some causal relationship to harmful conduct.

Brandenburg addressed future illegal activity that the publication of speech might facilitate, and held that advocacy of law violation may not be proscribed "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg, 395 U.S. at 447 (footnote omitted). Bartnicki addressed the publication of speech facilitated by past illegal conduct and held that the disclosure on a radio show of an illegally intercepted phone conversation may not be prohibited when the publishers did not participate in the illegal interception. As the Supreme Court observed, "it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed order to deter conduct by a non-law-abiding third party." Bartnicki, 121 S. Ct at 1762. These decisions taken together forbid speaker guilt by association. See also NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).

Yet the district court held, and the panel affirmed, that Appellant may be stopped from publishing the Internet address of other web sites on which DeCSS might be found (along with much other material), without any showing that he intended to facilitate unlawful copyright infringement, as Brandenburg requires, and without any showing that he had himself participated in illegal activity, as Bartnicki requires. This ruling conflicts with settled First Amendment principles and requires review by this Court en banc.

The district court and the panel mistakenly relied on New York Times v. Sullivan for the view that mere knowledge of potential unlawful conduct on posted-to web sites is sufficient for liability even in the absence of any proven intent to aid and abet that conduct. New York Times involved speech that is wholly unprotected Ð false and defamatory statements of fact Ð but gave it limited First Amendment protection in order to ensure "breathing room" for protected truthful speech. By contrast, the speech elements of DeCSS are concededly fully protected, and thus ordinary First Amendment standards require nothing less than a showing of intent.

This new standard opens up a potentially staggering range of liability for those who knowingly post hyperlinks to web sites that might be implicated in illegal conduct, and for this reason alone warrants the Court's careful review. The panel itself apparently concedes that it would violate the First Amendment to enjoin a newspaper from publishing the address of an obscene bookstore, as it would, presumably, to enjoin a periodical index from stating the title, volume and page number of an obscene periodical. The panel's supposed distinction between the ease of enforcement against the ultimate illegal conduct in the publishing world and in the "digital world," see Slip op. 7528, is fallacious: to the contrary, enforcement may if anything be easier in the digital world, where cease-and-desist orders may issue immediately to linked-to sites far more readily than vice squads may be dispatched to red light districts and ever-shifting contraband hideaways.

This Court should review the panel's linking ruling en banc to make clear that free speech principles turn not upon newly minted distinctions between pen-and-ink and point-and-click, but rather upon time-honored distinctions between intentional aiding and abetting of unlawful conduct and speech that at most can be construed as making such conduct easier to commit.

IV. CONCLUSION

For all of the foregoing reasons, and the reasons set forth in his briefs and supplemental briefs below, Appellant respectfully requests that the decision of the panel in this case be reheard en banc.