Section I On-Line Issues: II. Online Intellectual Property CasesTest Copyright, FreeSpeech TensionThe digital revolution has greatly simplified the ability to copy and distribute creative works. Thishas led to increased copying and greater pressure to legitimize such copying under the fair use doctrineand the First Amendment. It also has given rise to technology that permits copyright holders to placerestrictions on the access to and use of their works. This permits them to exert copyright-like restrictionson unprotected elements of their works, and to limit or eliminate uses of their works that might have beenprotected under the fair use doctrine.In addition, the rapid growth of the Internet has greatly increased interest in the use and protection oftrademarks, because Internet users commonly rely on trademarks to locate goods and services and tobypass the clutter on the World Wide Web.Anti-Circumvention Provisions of the DMCAThe anti-circumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA) werethe focus of intense public, academic, and judicial scrutiny in 2001. The anti-circumvention provisions,which are found in Section 1201 of the DMCA, prohibit the circumvention of technological measuresthat control access to a copyrighted work. They further prohibit the manufacture and distribution oftechnology, products, and services primarily designed or produced to circumvent technical measuresapplied by copyright holders to control access to a copyrighted work, or that effectively protect the rightsof a copyright holder in a copyrighted work.The anti-circumvention provisions are viewed as essential by copyright holders, who want to ensurethat they can protect their digital works from unauthorized access and copying before making themwidely available for electronic distribution. For example, movie studios today usually “encrypt” filmsdistributed in a digital versatile disk (DVD) format to prevent copying, using a “contents scramblesystem” or “CSS.” Congress, in passing the DMCA, sought to put the weight of the law behind suchcopyright holders.Critics view the anti-circumvention provisions as jeopardizing the balance between copyright and theFirst Amendment in two ways: (1) by putting copyright holders in a position to bar access to non-copyrightable elements of their works; and (2) by enabling copyright holders to prevent uses ofcopyrighted works that would be permitted under the doctrine of fair use. The anti-circumventionprovisions of the DMCA were at the heart of several high-profile cases in 2001.Universal City Studios, Inc. v. CorleyPage1of5TMI-The First Amendment and the Media 2002 ONLINE9/16/2007http://www.mediainstitute.org/ONLINE/FAM2002/Online_I.htmlIn one of the first cases brought under the DMCA, the movie industry sued a number of individualsfor distributing a computer program called “DeCSS,” which circumvents the CSS encryption system thatprevents the copying of motion pictures distributed on DVDs. In Universal City Studios, Inc. v. Corley,2001 U.S. App. LEXIS 25330 (2nd Cir. Nov. 28, 2001), the U.S. Court of Appeals for the SecondCircuit affirmed the lower court decision granting a permanent injunction prohibiting the defendantsfrom posting DeCSS on their Web site and from posting hyperlinks to other sites containing DeCSS.After discussing the broad scope of the First Amendment, the court concluded that computer code --both source code and object code -- is speech protected by the First Amendment. Like the lower court,however, the Second Circuit found that computer code contains both expressive and functional aspectsand, therefore, would be treated differently from “pure speech” under the First Amendment.The court held that the application of the DMCA to the defendants was a content-neutral regulation ofspeech, because it prohibits the posting of DeCSS solely because of the code’s functional attributes (i.e.,its ability to decrypt encrypted DVDs) and not its expressive elements. The court found that thisprohibition was consistent with the First Amendment, because it furthered the substantial governmentalinterest of protecting unauthorized access to encrypted copyrighted material, was unrelated to thesuppression of free expression, and did not burden substantially more speech than necessary.The court also affirmed the district court’s prohibition on hyperlinking to Web sites containingDeCSS. The district court established a three-part test intended to ensure that the prohibition would notburden more speech than necessary. The court of appeals found that the three-part test was sufficient tosatisfy the First Amendment, but did not rule on whether the three-part test was required by the FirstAmendment.The court rejected the appellants’ argument that the DMCA restricted their ability to make fair use ofcopyrighted material, largely because the appellants had not identified any such fair use. In addition, thecourt stated that the injunction barring appellants from trafficking in a circumvention device did notprohibit them from making fair use of copyrighted materials.Moreover, writing in dicta, the court stated that it was not persuaded that CSS encryption prohibitedfair use because, while a person would be unable to make digital copies of a DVD, a person was notprevented from making copies of the work in other ways. The court opined that fair use does notguarantee a right to copy “by the optimum method or in the identical format of the original.”DVD Copy Control Association v. BunnerIn a decision issued prior to Corley, a California state court of appeal reversed a lower court decisiongranting a preliminary injunction against the republication of DeCSS, holding that the injunctionconstituted an unlawful prior restraint of speech. DVD Copy Control Association v. Bunner, 113 Cal.Rptr.2d 338 (Cal. App. 2001). That case was brought by the trade association that controls the rights tothe CSS encryption system against a number of Web site operators. The trade association alleged thatDeCSS contains trade secrets relating to CSS and that the defendants misappropriated those trade secretsin violation of the California Uniform Trade Secrets Act (UTSA) by distributing DeCSS through theirWeb sites.The court held that computer source code was speech protected by the First Amendment. However,in a critical departure from the Second Circuit in Corley, the California court rejected the appellee’sargument that the functional elements of
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