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The motion picture industry won a major victory Thursday, when Southern District Judge Lewis A. Kaplan ruled that the distribution of computer code that enables the copying of Digital Versatile Disks is not protected by the First Amendment. In a 90-page opinion upholding the constitutionality of the Digital Millennium Copyright Act, Kaplan said that while computer code is speech, it is not “purely expressive any more than the assassination of a political figure is purely a political statement.” The decision comes three weeks after the bench trial of self-styled journalist Eric Corley, who the movie industry said was nothing more than a hacker bent on ensuring that the means for undermining protections for copyrighted movies would spread like wildfire. In yesterday’s ruling in Universal City Studios v. Reimerdes, 00 Civ. 0277, Corley was permanently enjoined from using his Web site to make available a software program called DeCSS, which allows users to descramble the encryption code that blocks the copying of DVDs. He was also enjoined from providing links on his 2600.com Web site to other sites from which DeCSS can be downloaded. Corley and his supporters had argued that the Digital Millennium Copyright Act (DMCA), passed by Congress after intense lobbying by the movie industry, is unconstitutional because it gutted the fair use doctrine. While Corley’s lawyers contended that computer code was pure speech, the eight major movie studios countered that distribution of DeCSS was conduct clearly barred under the DMCA, and that provisions of the DMCA that prohibit the dissemination of circumvention technology do nothing to undermine the fair use doctrine. On Thursday Kaplan found that Corley was in clear violation of the act, as he had in granting a preliminary injunction to the studios earlier this year. But the judge also said Congress had specifically addressed fair-use concerns in the statute. And he made several strong statements to the effect that the complexity of the digital age, and the lightening speed with which information travels, is no excuse to abandon the rule of law. “In an era in which the transmission of computer viruses — which, like DeCSS, are simply computer code and thus to some degree expressive — can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination of code in the appropriate circumstances,” the judge said. “The Constitution, after all, is a framework for building a just and democratic society; it is not a suicide pact.” In finding that the computer code at issue was not pure speech, Kaplan focused on its “functionality.” Computer code is “a fundamentally utilitarian construct, albeit one that embodies an expressive element,” he said. However, that “expressive element” of code “no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin’s actions.” He then ruled that the DMCA, as applied here, is a “content-neutral” restriction on speech “in furtherance of important governmental interests that does not unduly restrict expressive activities.” “Congress is not powerless to regulate content-neutral regulations that incidentally affect expression, including the dissemination of the functional capabilities of computer code,” he said. Kaplan talked about the difficulty of enforcing copyrights on the Internet, as compared with those for materials on paper, where it is relatively easy to trace unauthorized copies of a book back to the printing press that produced it. He analogized the transmission of the software to “a propagated outbreak epidemic.” “Finding the original source of infection … accomplishes nothing, as the disease … may continue to spread from one person who gains access to the circumvention program or decrypted DVD to another,” he said. LIMITS OF RULING Kaplan was careful to note that his was a narrow holding. It is limited, he said, “1) to programs that circumvent access controls to copyrighted works in digital form in circumstances in which 2) there is no other practical means of preventing infringement through use of the programs and 3) the regulation is motivated by a desire to prevent performance of the function for which the programs exist rather than any message they might convey.” “One readily might imagine other circumstances in which a governmental attempt to regulate the dissemination of computer code would not similarly be justified,” he added. He said the same logic applied to his decision to enjoin Corley and 2600.com from offering links to other sites where DeCSS can be found, saying that “posting and linking do very much the same thing.” “An anti-linking injunction on these facts does no violence to the First Amendment,” the judge said. “Nor should it chill the activities of Web site operators dealing with different materials, as they may be held liable only on a compelling showing of deliberate evasion of the statute.” But Kaplan said he was troubled by the possibility raised by the defense that an injunction would be futile because DeCSS is already all over the Internet — or what he termed the “horse is out of the barn” argument. “They will not be allowed to continue to do so simply because others may do so as well,” he said. “Indeed, it is likely that this decision will serve notice on others that the ‘strong right arm of equity’ may be brought to bear against them absent a change in their conduct and thus contribute to a climate of appropriate respect for intellectual property rights in an age in which the excitement of ready access to untold quantities of information has blurred in some minds the fact that taking what is not yours and not freely offered to you is stealing.” Leon P. Gold of New York-based Proskauer Rose was lead counsel for the movie studios. Martin Garbus of New York’s Frankfurt, Garbus, Klein & Selz was lead counsel for Corley.

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