The Reimerdes case was brought by Universal City Studios and seven other motion picture studios that produce DVDs (digital versatile disks) of their movies for sale to the public. The disks are encoded using an encryption system, called CSS (content scramble system), that prevents the making of copies, and limits the playing of the movies to appropriately configured DVD players and computer drives.

The case in the district court

      DeCSS is a computer program that decrypts the CSS encoding on DVDs, ostensibly for the purpose of allowing them to be played on Linux-based computers. The decoding also allows the DVDs to be played on other unauthorized systems, to be copied, and, using other software, to be compressed for easier storage and access on the Internet or otherwise. Shawn Reimerdes and Eric Corley posted the object and source code for DeCSS on their websites, and, in an act that Corley termed "electronic civil disobedience," encouraged other hackers to post the code on their websites. They then created links to the other websites where the code was available.

      The motion picture studios brought suit in the Southern District of New York, claiming that the actions of Reimerdes, Corley, and 2600 (the hackers magazine) violated the provisions of the Digital Millennium Copyright Act. That act, passed in 1998, makes it illegal to circumvent copyright protection systems that protect copyrighted works, or to distribute technology that allows such circumvention. (See my book at pp. 112-20).

      The defendants made several arguments. They argued that their actions didn't come within the language of the statute, or that they came within one of several elaborate exceptions to the act (covering, for example, reverse engineering and security testing). They claimed that their actions were protected by the copyright doctrine known as fair use. And they argued that their activities were protected by the First Amendment, and that the act, if read to cover them, was therefore unconstitutional.

      In an elaborate opinion, 147 pages long (with 279 footnotes!), District Judge Kaplan basically rejected all of defendants' arguments, and granted an injunction to bar their posting of the decryption code, or their linking to sites that contained such code.

Read the full text of the Reimerdes case
(Southern District of New York, Sept. 7, 2000)

The argument in the Second Circuit Court of Appeals

      Since I teach at New York Law School, only three blocks away from the Second Circuit Court, I went to observe the oral arguments on May 1, 2001. Dean Kathleen Sullivan argued the case for 2600, and Daniel Alter, an assistant United States Attorney, and Charles Sims, of the Proskauer Rose law firm, argued for the motion picture studios. (Shawn Reimerdes did not appeal the lower court ruling, but instead agreed to discontinue posting of the DeCSS code on his site.)

      Sullivan's first argument was that the posting of the DeCSS code was protected by fair use, since it made the code available not only for illegitimate uses, but also for uses that were otherwise protected by exceptions to the statute or by fair use. Judge Newman, the most vocal of the three judges, and an expert in copyright law (having decided several key cases and written several key articles on the subject) noted that the DVD works, even in their encrypted form, were available for playing on authorized systems and even for copying in analog form, and questioned whether fair use required that copies be available in the most technologically "excellent" form.

      Sullivan then made the argument that if the Digital Millennium Copyright Act prevented the posting of DeCSS code, or even the linking to sites that posted such code, it was unconstitutional under the First Amendment. She argued that the statute, by blocking access to works as well as preventing copying of works, was overly broad, and that the court should limit Congress to a less restrictive means of protecting copyrighted works. She claimed that applying the act to prevent even the discussion of decryption technology would chill the development of perhaps less restrictive technologies.

      In the arguments by Alter and Sims, Judge Newman several times compared the Digital Millennium Copyright Act to the Audio Home Recording Act of 1992, and asked if that act might not represent the less restrictive alternative that Sullivan had advocated. (The earlier act, for example, allows the making of a "first generation" copy of a work, but bars second-generation copies.) Newman himself seemed to hint at the answer when he suggested that the earlier act did not address all of the Internet concerns because it was passed before the Internet had been fully developed. (I think there are other distinctions that were not fully addressed in the oral argument. The earlier act was part of a package that also provided for the collection of royalties by copyright owners. And the earlier act basically was a failure, precisely because hardly anyone bought the digital audio tape technology that was supposed to generate the funds for the copyright owners whose works were being copied.)

      The district court case was solidly reasoned, and the judges from the bench didn't evince any particular eagerness to reverse the lower court in this case. While there may be some fair use contexts in which particular parties might be able to argue that the Digital Millennium Copyright Act should be narrowly construed, the judges indicated by their questioning that these particular defendants may not be the ones to make the best fair use or constitutional arguments. (There was a lot of discussion about whether the New York Times, for example, would be barred from linking to various sites relating to its articles, including a site that happened to post code that violated the statute.)

     The decision of the Second Circuit ultimately did end up affirming the district court.

(Read the full text of the Second Circuit opinion.)
(2d Cir., November 28, 2001)

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