By Elaine Hargrove-Simon
On November 28, 2001, the U.S. Court of Appeals for the Second Circuit unanimously ruled in Universal City Studios v. Corley (273 F.3d 429 (2001)) that an injunction prohibiting web sites from publishing hyperlinks to another site which contains information on how to unlawfully copy DVDs and other digital material is constitutional.
In 1996, CSS, the Content Scrambled System, was developed to prevent the copying of movies that were available on DVDs. To further strengthen copyright protection in the digital age, Congress passed the Digital Millennium Copyright Act (DMCA; see 17 U.S.C. section 1202 et seq. (Supp. V 1999)) in 1998. But in 1999, a Norwegian teenager, Jon Johansen, created DeCSS, a computer program that is able to decrypt CSS. Eric C. Corley, who was also one of the defendants in Universal City Studios, Inc. v. Reimerdes, (111 F.Supp.2d 294 (S.D.N.Y. 2000)), publishes a magazine and maintains a web site geared toward computer scientists, computer buffs and others. He had posted a hyperlink to a copy of the DeCSS program on his web site. Eight movie studios sued Corley under the provisions of the DMCA in the Southern District of New York. The District Court entered a permanent injunction barring Corley from posting DeCSS on his web site or from knowingly linking via a hyperlink to any other web site containing DeCSS.
In his appeal to the Second Circuit in Universal City Studios v. Corley, Corley challenged the constitutionality of aspects of the DMCA. Corley contends the hyperlinks are "speech" entitled to First Amendment protection.
In Universal City Studios v. Reimerdes, Judge Lewis A. Kaplan of the District Court set a standard he characterized as "highly analogous" to the First Amendment fault standard for libelous speech, holding that an online publisher could be enjoined or held liable if it were proven that "those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating the technology."
An amicus curiae (friend of the court) brief, co-authored by the Silha Center in 2001, addressed First Amendment issues raised by censoring such hyperlinks.
Because the Internet is widely used as a source of information, hyperlinks have proved invaluable for supplying consumers with additional information on a story. The amicus brief argued that the defamation analogy is inapt and will chill speech. Moreover, the standard in defamation confines relief to damages, but the test in Reimerdes authorizes injunctions. The District Court's test does not require that the publication be harmful to the subject's reputation, and not merely untrue.
The restrictions would also prohibit journalists from presenting all they know and could report about an issue. It would place an undue burden on journalists to have to testify on each part of the test set forth by the standard set by the District Court on each hyperlink featured in a story, the amicus brief contended.
Corley stated that in posting links to sites that carry the DeCSS code, he was merely doing the same thing a newspaper does when it adds a photograph to a story. For his particular audience, including a link to a site that contained the code added validity to the story.
Second Circuit Judge Jon Newman, however, rejected these concerns, agreeing with Kaplan's ruling that a hyperlink has both a speech as well as a non-speech component. Newman compared the contents of the sites bearing DeCSS to a slogan or "some other legend that qualified as a speech component" to marks on skeleton keys that could be used to gain access to restricted areas. The problem lies with the capacity of the code contained in the DeCSS program to infringe on copyright restrictions, and the hyperlink is immaterial, thus making the provisions in the DMCA "content neutral."
Newman cited Turner Broadcasting, Inc. v. FCC (512 U.S. 662 (1994)), for the proposition that, as with other content-neutral regulations which have incidental effects on a speech component, "the regulation must serve a substantial governmental interest, the interest must be unrelated to the suppression of free speech, and the incidental restriction on speech must not burden substantially more speech than is necessary to further that interest," in order to be constitutional.
Recognizing that restricting links to web sites that contain the DeCSS code may also restrict access to other information contained there and which is not prohibited by the DMCA, Newman suggested that such web sites simply delete DeCSS from their sites, leaving the other information intact. He further stated that the appellants "ignore the reality of the functional capacity of decryption computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted material by anyone anywhere in the world."
Accordingly, because of the content-neutral wording in DMCA and the damage that could be done by DeCSS to the film industry when copies of DVDs are pirated, the Second Circuit court upheld the earlier decision in Reimerdes.
On January 14, 2002, Corley's lawyers filed a petition for an en banc rehearing with the Second Circuit. The appellant claims that the Turner case was misapplied, and that the panel's decision conflicts with the U.S. Supreme Court's ruling in Reno v. ACLU (31 F.Supp. 2d 473, 483 (E.D. Pa.1999)), (holding that the Internet is a fully protected medium of speech) and Bartnicki v. Vopper (121 S. Ct. 1753 (2001)) (holding that "it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party").
As the Bulletin went to press, the Second Circuit had not yet acted upon the petition.