April 27, 2001
CYBER LAW JOURNAL
Does an Anti-Piracy Plan Quash the First Amendment?
By CARL S. KAPLAN
There's a long-accepted notion in the publishing world that between the
right of an author to control the uses of his book and the right of a
reader to engage in free speech is the safety valve known as "fair use."
The fair use doctrine under copyright law permits uncompensated use of
copyrighted works in some circumstances, such as in teaching, research and
news gathering. Thanks to fair use, a reporter can quote portions of a
newsworthy letter in an article and a scholar can use parts of a poem in a
But there's a related question that has never been settled by the courts:
Does fair use, which has its roots in the First Amendment, entitle the
scholar, reporter or others to gain access to the copyrighted work in the
first place -- -- especially when the material is guarded by a
technological device designed to prevent digital piracy?
The riddle is not some academic musing. It's at the heart of a
closely-watched copyright and First Amendment case winding its way through
the federal appeals maze. A panel of judges from the United States Court of
Appeals for the Second Circuit, in Manhattan, is scheduled to hear
arguments in the case, "Universal City Studios v. Reimerdes," on May 1.
In what is sure to be a packed courtroom, Kathleen M. Sullivan, the dean of
Stanford Law School and a celebrated First Amendment scholar, will argue
for the defendant Eric Corley, a Long Island-based editor and publisher of
2600, a hacker publication and Web site.
Arguing for the other side, a group of movie studios, will be Charles Sims,
a New York-based lawyer. A lawyer for the Department of Justice, Daniel S.
Alter, will also address the panel. Whatever the Second Circuit decides,
legal experts say it's likely the case will be heard eventually in the
United States Supreme Court.
The case revolves around a piece of software devised by a Norwegian
teenager called DeCSS. The underground code, available on the Internet,
decrypts or unlocks the information in an encrypted DVD movie disk and
allows a user to view the film on an unauthorized Linux DVD player or place
it on a hard drive, potentially for copying or mass distribution.
Not surprisingly, DeCSS became Hollywood's nightmare. Last year eight major
studios filed suit in federal court against Corley for posting the software
on his own Web site and linking to other sites that also contained the
code. The studios argued that Corley's actions in providing and
"trafficking" in the software violated a federal law, the Digital
Millennium Copyright Act of 1998, which prohibits distribution of a device
that is primarily designed to circumvent a technological barrier guarding a
copyrighted work. (Shawn Reimerdes, another defendant, was earlier dropped
from the case).
Following a trial last summer, Judge Lewis A. Kaplan of the United States
District Court for the Southern District, in Manhattan, agreed with the
studios that Corley's distribution of the code violated the law. He issued
an order banning Corley from posting or linking to the software.
Significantly, Judge Kaplan also found that the anti-trafficking law passed
constitutional muster even though it does not include any fair use safety
valve. According to Judge Kaplan, anyone who distributes DeCSS code
violates the law, even if he distributes it to someone who merely wishes to
employ it to 'unlock' a movie and make a fair use of it.
"This case poses the most important constitutional issues of the first part
of the 21st Century," said Eben Moglen, a law professor at Columbia Law
School and one of the co-authors of a friend-of-the-court brief supporting
Corley. "The case points up the intrinsic First Amendment conflict with the
new law of copyright," he said.
On appeal, the legal arguments will consider whether Congress may pass a
law that, in effect, allows movie studios not only to place a digital
"lock" on their films but also to sue anyone who distributes the digital
key. Such powers would prevent pirates from copying films but fair users as
Various civil liberties groups, some law professors and the defendant in
the Universal lawsuit all argued in briefs and friend-of-the-court briefs
that the First Amendment absolutely requires that would-be fair users have
the right to use certain information -- such as decryption software -- to
gain access to copyrighted works.
They argue that the doctrine of fair use becomes meaningless in a digital
world where any publisher, movie studio or record company can place an
electronic wrapper around a work of art making it impossible to make a
In the past, when a company published a book, the fair use rights of
readers limited its control over the work. But if the same company issues a
book today and encrypts it, its control over readers is far greater -- in
fact, almost unlimited -- unless there is a right of access to the material.
The plaintiffs in the lawsuit, along with law professors and the Department
of Justice, argued in a flurry of briefs and friend-of-the-court briefs
that the First Amendment does not require that would-be fair users gain
access to books and movies.
"There is no right to use [decryption] software" so as to use a protected
work for fair use purposes, Rodney A. Smolla, a law professor at the
University of Richmond and co-author of a friend-of-the-court brief, said
in an interview.
"You don't have a fair use right to view an HBO televised fight and make a
copy of it," he said. "Similarly, a movie theater can restrict access by
charging admission -- even charging a movie critic," he said. In fact, he
added, there is nothing preventing an author from hoarding a work and not
sharing it with the public, including would-be fair users.
In addition, said the movie studios in legal papers, using encryption
software to prevent mass digital piracy would be impossible if consumers
could freely distribute and study decryption software. "This is an
important, practical issue," Charles Sims, the lawyer representing the
movie studios, said in an interview. "One reason why e-books have been so
delayed is that the publishers are concerned about the security of their
works and their ability to earn a fair profit without the books getting
pirated the first day out there," he said. "The ability of technological
protection schemes to be backed up by . . . some enforcement is vital," he
According to Peter Jazsi, a law professor at American University's
Washington College of Law and a co-author of a friend-of-the-court brief
supporting Corley, the Second Circuit has three choices with respect to the
First Amendment/Fair Use debate.
They can accept, as Judge Kaplan did, the "unforgiving nature" of the
Digital Millennium Copyright Act and uphold it against the First Amendment
challenge mounted by Corley. Or they can disagree with Judge Kaplan's
analysis and say that the anti-trafficking provision "is too much in
tension with free expression to stand," said Jazsi. Alternately, the court
may "save" the anti-trafficking statute from unconstitutionality by
interpreting it as containing a fair use loophole.
"That's where fair use originally came in," said Jazsi. "The judges made it
up. It's been around in the American case law since the middle of the 19th
Century, and only made it into federal law in 1976," he said.
Jazsi said that a second major issue that the Second Circuit will grapple
with is the constitutionality of Judge Kaplan's order banning Corley from
linking to sites that provide the DeCSS code.
"The whole question of liability for linking . . . is still in its
infancy," he said. "I would be very concerned about the broad precedential
impact of the Second Circuit's embrace of [Judge] Kaplan's rule."
But Sims, the movie studio's lawyer, said the linking ban was narrow in
scope and justified because Corley had been previously told by the court to
stop distributing DeCSS. Corley's subsequent list of links, which he termed
an act of electronic civil disobedience, frustrated the will of the court,