THE COURT: And it was your practice to verify the existence of the proposed mirrors before you linked to them, when you put them on your mirror list, right?

THE WITNESS: That’s correct.

THE COURT: So the means of knowing whether the link that you posted to your mirror list took someone who clicked on that hyperlink to a page containing a whole bunch of content, some of it relating to DeCSS and others relating to God only knows what, as compared to taking you directly to the source code for DeCSS was entirely in your hands, true?

THE WITNESS: If we had spent more time on it, we could have refined it so it took you directly to the actual [DeCSS] files, yes.

1. Defendants Have injured plaintiffs by Trafficking in a Circumvention Device

2. Even if proof of copying were required, plaintiffs have shown that DeCSS has led to copying and threatens to cause further copying and resulting financial loss in the future

3. The Internet Evidence Offered by Plaintiffs is Admissible

4. Defendants’ "Others Are Doing it Too" Defense Is Unavailing under the Reasoning of Summers v. Tice

1. A Permanent Injunction Should be Granted to Prevent or Restrain the Ongoing and Threatened Harm Plaintiffs Face

2. Defendants May not Avoid entry of a permanent Injunction by Suggesting that such an Injunction would be Futile

The Court plainly has the power to grant declaratory relief and, in conjunction with a permanent injunction, should declare in clear and forceful terms that defendants’ conduct has violated plaintiffs’ rights under the DMCA. Bilbrey v. Brown, 738 F.2d 1462, 1471 (9^th Cir. 1984) ("a court declaration is a message not only to the parties but also to the public and has significant educational and lasting importance"). "It is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose," and courts must "adjust their remedies so as to grant the necessary relief where federally secured rights are invaded." J.I. Case Co., 377 U.S. at 433.

Salutary as declaratory relief would be in addition to injunctive relief, denial of the injunctive relief requested would not only be error (see supra at Section I.B.2), but also would deprive plaintiffs of relief that the defendants’ conduct has made essential. Indeed, the Second Circuit has noted that declaratory relief is secondary to coercive relief. See United States v. Doherty, 786 F.2d 491, 498 (2d Cir. 1986) (the declaratory judgment procedure "creates a means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy, or in which the party entitled to such a remedy fails to sue for it").

First, given defendants’ continued illegal trafficking activities, plaintiffs submit that denial of a permanent injunction against posting and linking would fail to restrain threatened harm. With an injunction comes the effective deterrent of a contempt remedy for its violation by the defendants and those in active concert or participation with them. A declaratory judgment, without more, provides no such deterrent. Moreover, if the present extent of proliferation of DeCSS precludes injunctive relief now, it would presumably preclude it a week after entry of a declaratory judgment.

Second, denial of injunctive relief would send a message to other "posters" (both those acting in concert with defendants and those acting on their own) that the Court has refused, or would refuse, to prohibit their posting and proliferation of DeCSS.

Third, refusal of injunctive relief would signal other courts, and the public at large, that there is no effective remedy in cases such as this — i.e., that courts are powerless to enforce the DMCA so long as wrongdoers purposely proliferate all circumvention devices (or infringing copies) over the Internet, or succeed in enlisting others to do so. Such a message also, in all likelihood, would encourage such conduct and lessen the willingness of Internet Service Providers to take down web sites that are posting DeCSS, although they were willing to do so following the entry of the preliminary injunction in this case. (Tr. 548:5-9 (King)).

Disrespect for, and disobedience of, the rule of law are corrosive. Thus, while supplemental declaratory relief would be welcome, the circumstances here — including that, as a practical matter, CSS must continue to play a role in protecting plaintiffs’ works; plaintiffs have had success so far in causing 60% of the sites posting and linking to DeCSS to take it down (DX AZS, 94:5-95:19 (Jacobsen Dep.)); and the conduct of defendants and those who have responded to their call to "Stop The MPAA" has been willful — render injunctive relief imperative, and declaratory relief alone insufficient, to "make effective the congressional purpose" underlying the DMCA. J.I. Case Co., 377 U.S. at 433.

In its February decision granting a preliminary injunction, the Court expressed doubt that the application of the DMCA’s anti-circumvention proscription to DeCSS implicates First Amendment concerns at all, but proceeded to hold that, even if it did, injunctive relief would not violate the First Amendment. Universal City Studios, 82 F. Supp. 2d at 220-21. Although it was clearly their burden to do so, defendants adduced no evidence at trial that should change the holding correctly reached months ago — namely, that the DMCA does not violate the First Amendment, either on its face or as applied.

A. The DMCA Is an Appropriate Governmental Regulation of Conduct, Not Speech .

The prohibition against trafficking in circumvention devices is a law of general application aimed at conduct, not speech. Congress prohibited "manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king]" in any such circumvention devices. See 17 U.S.C. § 1201(a)(2). Laws of general application aimed at conduct are generally not subject to First Amendment review, even when applied to the press. Cohen v. Cowles Media Co., 501 U.S. 663, 669-70 (1991) (noting well-established "line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."); see also Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).

B. DeCSS is Neither "Speech" Nor "Expressive Conduct. "

Although laws of general application may be subject to intermediate First Amendment review when they are applied to expressive conduct, defendants have not established that DeCSS has expressive content sufficient to warrant even intermediate scrutiny here. Compare Cohen v. Cowles Media Co., supra (no First Amendment review for promissory estoppel claim against newspaper), with Barnes v. Glen Theater, Inc., supra (applying intermediate review to nude dancing).

The question presented is not whether computer code can be sufficiently expressive to warrant First Amendment protection. See Junger v. Daley, 209 F.3d 481 (6^th Cir. 2000); Bernstein v. United States Dep’t of Justice, 176 F.3d 1132, 1141 (9^th Cir.) (holding that encryption software in source code form can be constitutionally protected expression, but expressing no opinion with respect to object code), reh’g en banc granted, op. withdrawn, 192 F.3d 1308 (9^th Cir. 1999). Rather, the proper question is whether DeCSS — particularly in its executable form, but also in any other form posted or sought to be posted by defendants — is sufficiently expressive to warrant First Amendment protection. The testimony was virtually unanimous that DeCSS is simply a tool for decrypting DVDs — that it has no expressive content itself. DeCSS is a decryption device and, in that respect, is functionally indistinguishable from a key or "virtual machine." See Universal City Studios, 82 F. Supp. 2d at 219 n.30 (citing R. Polk Wagner, The Medium Is The Mistake: The Law of Software for the First Amendment, 51 Stan. L. Rev. 387 (1999); Mark A. Lemley & Eugene Volakh, Freedom of Speech and Injunctions In Intellectual Property Cases, 48 Duke L.J. 147, 236-37 (1998)).

It is significant that Congress itself considered decrypting technologies and devices to be the equivalent of modern "keys." See S. Rep. No. 105-190 at 11. If, as plaintiffs submit, the unauthorized provision of an automobile key is proscribable and unprotected by the First Amendment, it is hard to see why any different analysis should apply merely because the decrypting technology defendants are providing happens to have been configured as software instead of hardware.

The testimony of Professor Touretzky affords no convincing basis otherwise, since the question of whether DeCSS is "speech" or "expressive conduct" for First Amendment purposes presents a question of law, not one of computer science or philosophy. At bottom, his argument would establish that a housekey is speech as well (as it communicates information to tumblers, which could as well be communicated to humans in various other languages or ways) — a conclusion that may be a tour de force but would not make house keys eligible for First Amendment protection. Dr. Touretzky’s view is based on his puzzlement that the Court could "decide to ban, say, the C source code but not discussion of the algorithm," since "in [his] mind these things are all equivalent." (Tr. 1068:19-1069:2 (Touretzky)). With respect, the law does not treat instructions to machines in the same way as it treats political or academic discussions of those instructions, just as it distinguishes between illicit dealing in firearms and literary discussion of committing a crime. No matter how clever one may be in converting code to English or translating it into any other language, DeCSS itself (whether as an executable utility or in source code) is still just a set of unscrambling instructions to a machine, as inexpressive as the numeric combination to the locks to a bank vault. See also Universal City Studios, 82 F. Supp. 2d at 222 ("Executable computer code of the type at issue in this case does little to further traditional First Amendment interests.") And since Professor Touretzky’s testimony established that the source code can be readily converted to object code which, in turn, can be used to create the executable utility, the DeCSS source code is just as much a "technology," "device" or "component, or part thereof" within the meaning of the DMCA as is the executable utility. See 17 U.S.C. § 1201(a)(2).

C. At Most, Application of the DMCA to DeCSS Has An Incidental Impact on Speech and Does Not Violate Defendants’ First Amendment Rights.

Assuming arguendo that DeCSS, as provided by defendants (as an executable utility or as object or source code), is sufficiently expressive to constitute "speech" within the meaning of the First Amendment, that conclusion only begins the inquiry, Universal City Studios, 82 F. Supp. 2d at 220, and the DMCA’s application to defendants’ provision of DeCSS would still be constitutional. The government may regulate, or even proscribe, unlawful conduct and apply those regulations even to conduct claimed to be imbued with elements of protected "speech." See, e.g., United States v. O’Brien, 391 U.S. 367 (1968) (Congress may constitutionally punish expressive burning of Selective Service draft card); Albertini, supra (regulation of expressive entry onto military bases); Clark, supra (regulation of expressive sleeping in parks); Barnes, supra (regulation of nudity applied to dancing); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 536-37 (1987) (upholding, under O’Brien, Congress’s exclusive grant of the use of the word "Olympics" to respondent); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 388 (1973) (regulation of unlawful commercial transactions applied to newspaper’s help-wanted notices).

Here, assuming arguendo that the Court finds some expressive aspect to DeCSS (in any form), the DMCA represents unquestionably permissible governmental regulation of a particular course of conduct that causes substantive harm in an area that is within Congress’s power to regulate — in this case, the widespread trafficking in devices which circumvent effective technological measures employed by copyright owners to protect their works. See Universal City Studios, 82 F. Supp. 2d at 220 (finding that "the DMCA appears to be a legitimate exercise of Congress’ power" under the Copyright and the Necessary and Proper Clauses of the Constitution). The Supreme Court consistently has deferred to Congress’s ability to balance competing interests when technological innovations threaten to diminish constitutionally-based incentives to create, which are protected by the Copyright Act. See, e.g., Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 431 (1984) ("Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology."). Indeed, the Congressional record for the DMCA reflects this careful balancing of First Amendment rights with the clear need to provide strong protections to copyright owners.

Defendants’ argument that all computer code (and therefore DeCSS) is necessarily protected speech, and its reliance on Professor Touretzky’s "slippery slope" arguments, goes too far. If DeCSS is "speech" immune from any regulation, then no device that can be embodied in computer software could ever be regulated by Congress. That is clearly not the case. Indeed, Congress intended that unlawful "devices" within the meaning of the anti-trafficking provisions would include any "technology measure" meeting the statutory definition, specifically including computer code. See H.R. Conf. Rep. 105-796, 105th Cong., 2d Sess. (Oct. 8, 1998), at 68 ("the conferees believe and intend that . . . software ‘hacks’ are equally prohibited by the general circumvention provision"). Moreover, taken to its logical extreme, defendants’ argument would compel the conclusion that Congress could not regulate any Internet activities because, invariably, the transmission of any information over the Internet requires some level of computer processing and, therefore, necessarily entails the use of programming languages/source code. Congress’s recent legislative efforts demonstrate the absurdity of such a premise. See, e.g., 15 U.S.C. § 6502 et seq. (prohibiting collection of personal information by websites or online service operators whose services are directed at children); 18 U.S.C. § 1030, et seq. (prohibiting, inter alia, fraud and related activity in connection with unauthorized access to computer systems).

Under O’Brien, the DMCA’s application to defendants’ conduct easily passes First Amendment muster. As the Court correctly held in its February decision, § 1201’s anti-trafficking prohibitions are within the constitutional power of the Government, further a substantial governmental interest unrelated to the suppression of free expression and, if they restrict First Amendment interests at all, any such restriction is no more than is essential to further the interest served. Congress’s determination that the DMCA serves a substantial government interest in carrying out the objectives of the Copyright Clause of the Constitution in the Internet age is beyond dispute, and the DMCA’s prohibition against trafficking in devices that threaten to diminish copyright holders’ incentives to make their works available in digital form furthers that legitimate interest.

The First Amendment does not prohibit the enforcement of laws protecting intellectual property. See Universal City Studios, 82 F. Supp. 2d at 220 ("it is no longer open to doubt that the First Amendment does not shield copyright infringement"); see also Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539, 555-60 (1985); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (rejecting First Amendment challenge to damage award against broadcasting company that violated plaintiff’s rights of publicity); San Francisco Arts & Athletics, supra; Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 849 (11^th Cir. 1990). That premise holds true whether such laws must be applied in the "brick and mortar" world or in cyberspace. Indeed, the First Amendment does not permit even a newspaper to copy the work of another without the copyright owner’s consent. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 731-32 n.1 (1971) (White, J., concurring) ("No one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another"); Flamm v. American Ass’n of University Women, 201 F.3d 144, 149 (2d Cir. 2000); Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 93 (2d Cir. 1998); cf. Don King Prods., Inc. v. Douglas, 742 F. Supp. 778, 782 n.4 (S.D.N.Y. 1990).

Congress’s purpose and goals in enacting the DMCA would be eviscerated if exceptions to the anti-trafficking provisions were crafted for defendants, or available whenever a plainly illegal decryption device is embodied in software. To hold that the DMCA’s anti-circumvention provisions cannot be applied to software devices distributed over the Internet because any form of software is "protected speech" would render the DMCA "dead on arrival."

Congress has enacted comparable laws prohibiting the manufacture, distribution and sale of cable and satellite television "descramblers," which also defeat access control devices, see, e.g., 47 U.S.C. § 553(a)(2) (prohibiting the manufacture or distribution of equipment intended for the unauthorized reception of cable television service) and 47 U.S.C. § 605(e)(4) (prohibiting the manufacture, assembly, import and sale of equipment used in the unauthorized decryption of satellite cable programming), and the federal courts have upheld them.

For example, in Cable/Home Commun. Corp., supra, the Eleventh Circuit held that the defendants’ promotion of statutorily-prohibited "descrambling devices" for subscription cable television programming, as well as defendants’ creation, advertisement and sale of pirated computer chips to compromise the copyrighted program used to scramble or encrypt the plaintiffs’ transmissions, were not protected by the First Amendment. The Eleventh Circuit also noted that because the defendants’ "speech" "not only violated the copyright and communications laws, but also encouraged third parties to do so, . . . defendants-appellants have no protection within the First Amendment for their unlawful expression." 902 F.2d at 850. See also California Satellite Sys. v. Seimon, 767 F.2d 1364, 1367-68 (9^th Cir. 1985) (no First Amendment right to pirate scrambled satellite broadcast signals). This conclusion should apply with even greater force in this case where the purported "speech" being provided to the public constitutes the unlawful device itself. Moreover, this case fits squarely within the holding of Pittsburgh Press that the First Amendment does not bar the proscription of speech which is itself unlawful conduct that Congress may prohibit. 413 U.S. at 388. See also United States v. Rowlee, 899 F.2d 1275, 128 (2d Cir.) ("Speech is not protected by the First Amendment when it is the very vehicle of the crime itself.") (citing cases), cert. denied, 498 U.S. 828 (1990).

The permanent injunction sought by plaintiffs does not transgress the First Amendment because it proscribes a narrowly defined course of conduct in trafficking in an unlawful circumvention device, and in no way silences defendants (or anyone else) from discussing DeCSS or from criticizing anyone or anything at all (including, but not limited to, the DMCA, Congress, intellectual property law, plaintiffs, or the Court). To the contrary, the injunction furthers, rather than detracts from, speech interests, just like injunctions against copyright infringement: it furthers the constitutional mandate "to Promote the Progress of Science and Useful Arts," U.S. Const. Art. I § 8, by ensuring that plaintiffs’ copyrighted expressive content will be more widely disseminated, not less. Not one of defendants’ academic witnesses, including Dr. Touretzky, testified to needing wide dissemination of DeCSS on the web, in executable or source code form, in order to teach their students or perform their research.

Finally, on the record adduced at trial, entry of a permanent injunction that reaches defendants’ linking is proper, even if linking by others arguably may raise more complex issues. In light of Corley’s testimony that, while subject to the preliminary injunction, defendants deliberately solicited additional postings, created links to those postings, and went to the length of personally verifying that the DeCSS program was present on these other sites before establishing each link, there is no doubt that defendants’ linking scheme was designed to ensure that they could continue providing DeCSS to the public. Accordingly, this Court can easily conclude that the defendants’ linking scheme was designed to avoid the spirit of the Court’s preliminary injunction, so that they could continue trafficking in DeCSS in violation of § 1201 of the DMCA, thereby warranting injunctive relief against activities that might not, in some more innocent context, be unlawful otherwise. Accord Oral-B Labs, Inc. v. Mi-Lor Corp, 810 F. 2d 20, 24 (2d Cir. 1987) ("Furthermore, a party who has once infringed a trademark may be required to suffer a position less advantageous than that of an innocent party"); Sunbeam Prods., Inc. v. West Bend Co., 123 F.3d 246, 260-61 (5^th Cir. 1997), cert. denied, 523 U.S. 1118 (1998); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 390 (5^th Cir. 1977) (in fashioning equitable relief against a party "who has transgressed the governing standards, a court of equity is free to proscribe activities that, standing alone, would have been unassailable"). See generally T. Cahn and J. Floum, Applying the Safe Distance Rule in Counterfeiting Cases: A Call for the Use of Broad Equitable Power to Prevent Black and Gray Marketeering, 8 Fordham I. P., Media & Ent. L.J. 487 (1998).

Copyright law regulating digital piracy, and the ability of Congress and the federal courts to protect copyrighted works on the Internet, are subjects of much current public debate. Pirates and hackers have widely publicized the concept that nothing can be done to preserve copyright laws as they relate to the Internet, and that the courts are helpless to apply the law to stop infringement and illegal trafficking in circumvention devices. This is far from the first time that advocates of lawlessness have told the courts that their movement of the day, whatever it is, cannot be dealt with by the law or by the courts established to enforce the law.

Just at this time, this propaganda is at its loudest. Internet technology has reached a cusp with the proliferation of file-swapping utilities where unauthorized copies of copyrighted works, including movies, can be simply and anonymously made available to millions of people. The use of these file-swapping utilities to do just that with respect to virtually every song in the libraries of the major music companies has become front page news. Quantum leaps in technology, and the consequent increase in the power to use that technology to do previously unimagined harm are challenging Congress and the courts to find ways to protect the lawful interests of copyright owners in the digital age. Just at this time, this Court is being asked to enforce Congress’s decision to afford copyright owners an additional tool to protect those interests and reject defendants’ invitation that the Court ignore their violation of the anti-circumvention law because, they assert, the Court is impotent to prevent the trafficking of DeCSS. According to defendants, the Court cannot eradicate this admittedly illegal device and, therefore, must stand by and allow the widespread dissemination over the Internet of a device whose sole function is the illegal decryption of movies — at least until the motion picture industry suffers the same immense piracy as the record companies have suffered already (the very harm the DMCA was enacted to prevent).

It is wrong to state that DeCSS has been circulated so widely that it is beyond the reach of the laws. Moreover, it is defendants and their loyal band of believers who have created a large percentage of the sites carrying DeCSS. A permanent injunction against these particular defendants, and those acting in concert with them, will have the immediate, direct effect of eliminating many of the existing sites containing DeCSS, and will give plaintiffs an essential tool for effecting elimination of the remainder. A declaration of law would work to tell those who are not clear about the law, and who truly wish to understand the law, that their acts are illegal.

The judgment, the permanent injunction, and, indeed, the message plaintiffs seek in this case are uniquely important. The DMCA and its anti-circumvention provisions were Congress’s answer to its conclusion that a new law was needed to stop infringement, to stop digital piracy, before copying becomes truly ubiquitous. Should this Court say Congress’s solution does not work and rule out the availability of injunctive relief in its first significant test? Plaintiffs most respectfully submit that the Court should enforce the law. Plaintiffs are, as they must be, committed to CSS; but they would not lightly risk destroying the value of their new movie releases, or the DVD business, by staying with an encryption system that cannot continue to work and that the law will not protect, notwithstanding the clear mandate of the DMCA. The trial record demonstrates that the industry can control DeCSS with the tools Congress has given it. It will keep the piracy "manageable," but only so long as the courts will enforce the DMCA through the injunctive relief which Congress provided.

For all the foregoing reasons and the reasons set forth in plaintiff’s previous memoranda of law, the Court should grant a final judgment: (a) permanently enjoining, pursuant to Fed. R. Civ. P. 65, defendants, their officers, agents, employees, and all those in concert or participation with them, from providing DeCSS by any means, including by posting it to any web site or by linking to any web site that contains it; (b) declaring that the provision of DeCSS to the public violates plaintiffs’ rights under 17 U.S.C. § 1201; (c) awarding plaintiffs their costs and reasonable attorneys fees, pursuant to 17 U.S.C. § 505 and/or §§ 1203(b)(4) and (b)(5); and (d) awarding plaintiffs such other and further relief as is appropriate.

Dated: August 8, 2000