By Eric Ugland
For the first time since its founding in 1984, the Silha Center for the Study of Media Ethics and Law has co-authored an amicus curiae ("friend of the court") brief in a First Amendment case.
The brief was filed Jan. 25, 2001 in the U.S. Court of Appeals for the Second Circuit in support of the defendants-appellants in the appeal of the Federal District Court's ruling in Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000). Reimerdes is a closely watched case whose outcome could substantially limit the ability of online journalists and other World Wide Web communicators to use hyperlinks to connect their audiences to Web content.
The issue in Reimerdes is whether courts may, consistent with the First Amendment, enjoin Web site operators who either post programs capable of decrypting copyrighted digital versatile disks (DVDs), or who provide hyperlinks to sites containing such programs. Universal and seven other studios joined forces to seek injunctions against Eric Corley, publisher of 2600: The Hacker Quarterly, whose Web site contained the DVD decryption program known as DeCSS, and also against Shawn Reimerdes and Roman Kazan, operators of other Web sites containing the decryption program. DeCSS is a program that decrypts CSS, the encryption program used to protect DVDs from being unlawfully copied.
The Digital Millennium Copyright Act empowers judges to issue injunctions against those who "offer to the public" or "otherwise traffick" in decryption programs designed to circumvent copyright protections. 17 U.S.C. section1201 (a)(2). District Court Judge Lewis A. Kaplan held that by posting DeCSS on their Web sites, the defendants were offering the software to the public. Moreover, Judge Kaplan held, "posting ... and linking amount to very much the same thing." Reimerdes, 114 F.Supp. 339. As a result, injunctions can be issued against those who provide hyperlinks to sites containing DeCSS, provided: the person creating the link knows DeCSS is available on the linked-to site, knows DeCSS is illegal, and created the link for the purpose of disseminating DeCSS. Id. at 341. This language seems to provide some protection for certain kinds of links, but it remains unclear whether, for example, an online journalist doing a story about DeCSS could be enjoined or held liable for posting a link to a site containing the program.
The appellants contend that the District Court's interpretation and application of the DMCA is unconstitutional because it sanctions prior restraints of expression, punishes the communication of truthful information, disallows the "fair use" defense to copyright violations, and restricts expression without any evidence that an actual violation of protected copyrights occurred. The District Court's ruling equating linking with posting would leave journalists and others vulnerable to injunctions or civil liability for merely pointing their audiences to sources containing decryption programs, even if those programs were not used for an illicit purpose.
The Silha Center's amicus brief focused on this latter aspect of the case, and the possibility that the District Court's ruling, if upheld, would create a chilling effect on Internet expression, particularly for online journalists who use hyperlinks to augment their stories, and to provide readers with access to original source materials and useful supplemental information available elsewhere on the Web.
The amicus brief was authored by Silha Center Director Jane Kirtley and SJMC graduate student Erik Ugland, together with David Greene of the First Amendment Project in Oakland, Calif., and Milton Thurm of Thurm & Heller law firm in New York City. It was written on behalf of the Silha Center and several other journalism and free-press organizations, including the Newspaper Association of America, the Online News Association, the Reporters Committee for Freedom of the Press, the Student Press Law Center, Wired News, the Pew Center on the States and the College of Communications at California State University, Fullerton. All of these organizations are concerned about the prospect of online journalists and others being punished or shut down for providing links to information over which they exercise no editorial control.
The amicus brief addressed three broad concerns. The first was the importance of the Court's ruling in establishing not only the legal boundaries of linking, but also the extent of the judiciary's respect for online journalism and the growth of the Web as a source of news and information. An affirmation of the District Court's ruling not only would substantially limit the rights of online journalists and other Web communicators, but would also inhibit the use of links - the defining feature of the Web - at a time when their value as journalistic tools is just beginning to be tapped.
As the brief notes, "When Judge Starr issued his report on allegations against President Clinton, and when the Florida Supreme Court issued its recent election rulings, online accounts were accompanied by links to the actual documents." These are the kinds of uses that are now commonplace. But what about linking to information that was confidential or that was obtained illegally? The brief notes that "if the Web had been available in 1971, journalists for the Washington Post and New York Times may have linked to the Pentagon Papers in addition to publishing their own interpretations of those controversial documents." Although the Pentagon Papers would not be covered by the DMCA, upholding the District Court's framework would provide support for the adoption of parallel legislation targeting this kind of information, even if the information is true and in the public interest.
The second area addressed by the brief was the District Court's test for linking liability and its consistency with existing First Amendment standards. The authors argue that the District Court creates a double standard, treating Web publishers more harshly than those using other media in the face of the U.S. Supreme Court's insistence that publication on the Web be afforded the highest level of First Amendment protection. Reno v. ACLU, 521 U.S. 844, 870 (1997). The District Court relies on the notion that the speech in question in Reimerdes is "functional" - that it can be used to perform some operation or to complete some task. But, as the authors of the brief note, this is "no different from the pre-Web practice of identifying reference material that a reader could then retrieve from a library." The fact that someone might later use that information for an illegal purpose should not be the responsibility of the Web publisher. No one would contend, the authors argue, that a newspaper should be liable because its publication of details of a robbery was later used by a reader in committing a similar crime.
The brief's authors also contend that the District Court's ruling treats Web publishers more harshly by permitting prior restraints, which are nearly always found unconstitutional as applied to other media. Furthermore, it does so without any evidence that the linked-to information was actually used or that anyone was actually harmed.
"Banned from publication are links to a Web site containing DeCSS in a report on permissible efforts to reverse engineer CSS, or in a report on the way a film professor compiles film clips for exhibition in class, or in a report on the District Court's decision. Banned are links that inform the reader exactly what DeCSS is, even if the reader is advised not to 'use' DeCSS."
The brief concludes with the argument that the District Court erred by interpreting the publication of a link to another website to be "offering to the public" or "trafficking" in decryption technology. As the brief states, "The First Amendment requires that 'trafficking' be more than merely directing a reader to another source of information. Although a hyperlink may be evidence of actionable conduct, it cannot be the basis for liability in and of itself."
A decision in Reimerdes is probably still months away. But the briefs of the parties have been filed and oral arguments are scheduled for May 1. Whatever the outcome, Reimerdes will serve as a significant precedent in the still unsettled terrain of Internet law, and an appeal to the U.S. Supreme Court should be anticipated.