II. DVDs: The Movie Industry’s Latest Marketing Ploy
Since the time of silent pictures the film industry has proved to be immensely profitable.  Today, blockbuster hits such as “Titanic” and “Episode I: The Phantom Menace” gross hundreds of millions of dollars.   Movie studios, ever aware of their potential for profit, consistently search for new and innovative ways to market and sell their product.
The movie industry’s latest marketing ploy is one that allows people to order their favorite movies on DVDs over the Internet.  DVDs or digital versatile disks, are the latest technology for private home viewing of recorded motion pictures.   They are five-inch disks that are identical in appearance to that of a compact disc or CD.  However, DVDs have superior sound quality and hold full-length motion pictures.  This digital technology markedly improves the clarity, sound and overall quality of motion pictures viewed at home.   DVDs also contain added features such as clipped scenes, soundtracks and trailers and may be played on a home computer in addition to the television set.
Although DVDs are already available for both purchase and rental, they are still not as prevalent as their dated counterpart, the videotape.  Moreover, due to the novelty of DVDs, not all titles are yet available in digital format.  In an effort to improve the marketability of DVDs, many movie studios allow their films to be purchased directly over the Internet.  The process is simple.  To order a film, a patron simply visits a website such as www.Reel.com, picks his or her movie of preference and types in a credit card number.   The movie is delivered to the patron’s home in only a matter of days.  This effectively erases the inconvenience of wading through the crowd at Best Buy to search for a particular title on DVD.  In addition, new releases are more apt to be available over the Internet before retailers even have them out on the shelves.

III. Protecting Their Product: Copyrights and CSS
Movie studios that sell their movies in digital format protect themselves against bootleggers through the use of copyrights.  Copyrights provide the originator of a product legal recourse against anyone who reproduces or distributes that product without proper authorization.   However, by the time movie studios actually become cognizant of the fact that their product is being illicitly reproduced, it has usually been dubbed and distributed numerous times over.  Thus, copyrights law alone is insufficient to protect the interests of movie studios.
Keen to this problem, movie studios sought to preempt the problem before it reached the stage of illicit reproduction.  Many studios developed an access control and copy prevention system to inhibit the unauthorized reproduction and distribution of their motion pictures.   This preventative system is known as CSS.  CCS stands for Content Scramble System.  It is a technological measure that effectively controls access to the owners copyrighted material.   CCS “is an encryption based security and authentication system that requires the use of appropriately configured hardware, such as a DVD player or a computer DVD drive, to decrypt, unscramble and play back, but not copy, motion pictures on DVDs.”   In simpler terms, the Content Scramble System allows individuals to watch but not copy a movie on a digital versatile disk.

IV. DeCSS: The Problem
 Since the invention of CSS, many individuals have attempted to crack its encryption code.  Some have been successful.  These individuals who illegally gain access to digital information are commonly referred to as “crackers.”  After cracking the encryption code, crackers generally develop a program that enables any individual using the program to unscramble the CSS code.  One such program is known as DeCSS.  Many crackers have already made DeCSS readily available to the public by “posting” the program on the Internet.  Once an individual downloads the DeCSS program, he or she may unscramble the CSS code, and post the decrypted movie on the Internet were it can be copied.  Consequently, legions of websites have sprung up offering free downloadable movies and encouraging people to add to the website those movies the cite does not yet contain.
This rampant free exchange of movies over the Internet has prompted legal action by many motion picture studios engaged in the business of distributing copyrighted motion pictures.   These movie studios have brought their claims pursuant to Section 1201(a)(2) of the Digital Millennium Copyright Act.

V. 1201(a)(2) of The Digital Millennium Copyright Act
 In 1998 Congress responded to the DeCSS program by adding section 1201 to the Digital Millennium Act.   Section 1201 is an anti-circumvention provision that makes it a felony to crack a protection regime, such as the CSS, even if the use of the underlying material is not itself a copyright violation.   To circumvent a technological measure is to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate or impair a technological measure absent the permission of the copyright owner.
Opponents of DeCSS programmers have begun filing claims under Section 1201(a)(2) of the Digital Millennium Copyright Act.  Section 1201 (a)(2) dictates that:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
 

Supporters of DeCSS programmers, however believe that Section 1201’s restrictions on the dissemination of the  DeCSS program violates the First Amendment freedom of speech.
The issue, whether Section 1201 of the Digital Millennium Copyright Act proscribes free speech, has yet to reach the Supreme Court.  Nevertheless, some lower courts have had the opportunity to address the matter.  The most current case on the issue is Universal City Studios, Inc. v. Reimerdes, 2000 WL 124997 (2000).  In Reimerdes the plaintiffs, eight movie corporations including Paramount, MGM, and Disney, brought an action against defendants, distributors of DeCSS, for posting the DeCSS program on the Internet.   The plaintiffs contended that the defendants offered technology that circumvented their copyright protection system and thus facilitated infringement under section 1201(a)(2) of the Digital Millennium Copyright Act.   The defendants responded by arguing that the DeCSS computer program is protected under the First Amendment freedom of expression.
The United States District Court for the Southern District of New York analyzed the constitutionality of the Digital Millennium Copyright Act on four separate grounds.  These grounds consisted of the Fair Use Doctrine, the Necessary and Proper Clause, the balancing of public interests, and courses of conduct in violation of the law.  Although the court in Reimerdes ultimately found that Section 1201(a)(2) of the Digital Millennium Act was constitutional, an independent examination of the aforementioned grounds is warranted.  The sections that ensue discuss these grounds in greater detail.

VI. The Fair Use Doctrine
 Conflicts between interests protected by the First Amendment and the copyright laws have been resolved by the application of the fair use doctrine.   The fair use doctrine is an equitable rule of reason.  Thus, each case raising the question of whether use of a copyrighted work constitutes a fair use must be decided on its own facts.   To determine whether the use of copyrighted material is fair, Congress identified four factors for courts to consider.  They are: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect on the potential market for or value of the copyrighted work.
DeCSS is a program made up of lines of code. A program code’s sole function is to provide a sequence of operations to be performed by a computer or other mechanism.   Although crackers argue that DeCSS allows individuals to legally make a backup copy of their DVDs, the true purpose of this particular program is to allow mass duplication of movies.  Thus, the primary purpose and character of the DeCSS program is to permit the circumvention and dissemination of copyrighted works.   This type of use cannot reasonably be construed as fair.
  The law provides greater protection to works of fiction or fantasy than it does to works of fact.   Because of the publics need to know, courts are more willing to allow dissemination of factual works.  However, the same is not true of fictional works.  Works of fiction and fantasy are original creations.  Courts have historically proscribed the unauthorized dissemination of original creations.  The Supreme Court stated that “[a] use that… infringes the copyright holder’s interests in… creative control is difficult to characterize as fair.”   Movies are almost entirely works of fiction or fantasy.  Thus, the nature of the copyrighted work in this case is one likely to be protected by the courts.
Where only a fraction or portion of a work is copied, courts are more willing to allow for its dissemination.  The DeCSS program, however not only allows individuals to copy a movie in its entirety, but also maintains the quality of the movie from copy to copy.  Thus, the DeCSS program far exceeds the partial use allowed by the fair use doctrine.
Finally, the DeCSS program has a dramatic effect on the potential market of the copyrighted work.  In the United States alone over 4,000 motion pictures have been released in digital format.   Motion pictures, both contemporary and classic, are being released on DVDs at the rate of over forty new titles per month.   Additionally, more than one million DVD disks are sold each week.   The fourth prong of the fair use doctrine contemplates the potential of an unauthorized use to adversely effect the market of a copyrighted work.  With the popularity of DVDs rapidly growing and the increasing availability of DeCSS programs online, the potential for lost revenue is enormous.  Because of the effect the DeCSS program will have on the market of DVDs, the DeCSS programmers fail the fourth and final prong of the Fair Use Doctrine.
A Constitutional analysis of the Digital Millennium Copyright Act does not end with the Fair Use Doctrine.  Section 1201(a)(2) of the Act “sweeps more broadly by prohibiting production and dissemination of technology that circumvent[s] measures taken to protect copyright, not merely infringement of copyright itself”.   Thus, further examination of the Digital Millennium Copyright Act is required.

VII. The Necessary and Proper Clause
The Necessary and Proper Clause allows Congress to make any law that is necessary and proper to prevent the unauthorized publication of copyrighted materials.
Additionally, “the Supreme Court has made clear that Congress should be accorded substantial deference in determining how best to protect copyright [sic] in an age of rapid technological change.”
The anti-circumvention provision of the Digital Millennium Copyright Act is a legitimate means of carrying out the objective of the Copyright Clause.   In considering Section 1201(a)(2) of the Act, Congress determined that the prohibition of such technologies as DeCSS would “facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education.”   To otherwise permit technological circumvention would be to stifle the greatest revolution since the industrial age.  Section 1201(a)(2) is thus a necessary and proper exercise of Congress’ power under Article I of the United States Constitution.

VII. Balancing the Public Interests
  In a First Amendment case, a court must also balance the public interests at stake before it can determine the constitutionality of a restriction on speech.  This is done by balancing the public interest promoted by the restriction against the public interest promoted by the kind of speech at issue.
In considering the DeCSS program, the speech at issue is nothing more than an executable computer code.  The program itself is devoid of any message, political or otherwise that is readily intelligible to the general public.  Only a select few are able to interpret or even understand the code.  The program itself is not sufficiently expressive.  Thus, when considering the interest of the public at large, the DeCSS program does little to promote traditional First Amendment interests.
The Digital Millennium Copyright Act, on the other hand, promotes a variety of interests that weigh heavily in the balance.  “Copyright protection exists to ‘encourage individual effort by personal gain’ and thereby ‘advance public welfare’ through the promot[ion of] the ‘progress of Science and useful Arts.’”   These objective are lofty and of great societal import.  The Digital Millennium Copyright Act serves to further these objectives in an era defined by technological advances.  Because the societal interests set forth by the Act outweigh those promoted by the DeCSS program, the anti-circumvention restriction must be considered a valid one.

IX. Courses of Conduct in Violation of the Law
The programmers’ posting of DeCSS was a course of conduct that was in clear violation of the law.  Speech that is an integral part of a course of conduct that violates important public law, may not be protected by the First Amendment.  This is best exemplified in the case of Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949).
The defendants in Giboney, union retail ice peddlers, peacefully picketed the plaintiff, a wholesale ice distributor, in an effort to force the distributor into an agreement not to sell ice to nonunion members.   Missouri law made it a felony for any person to enter into an agreement with any other person or business that resulted in a restraint of trade or competition in the transportation of any product or commodity within the state.   Plaintiff subsequently filed a complaint charging that in picketing Empire the union members were violating the antitrade restraint statute.   Giboney answered asserting a first amendment constitutional right to picket Empire’s premises.
The Supreme Court held that although labor picketing was traditionally protected by the First Amendment, in the case at hand the picketing was an integral part to a course of conduct that was in violation of a criminal statute securing competition and precluding combinations which tend to defeat it.  The Court reasoned that where allegedly protected speech is “used as an essential and inseparable part of a grave offense against an important public law” the constitution “cannot immunize that unlawful conduct from state control.”
The predominate purpose of the DeCSS program is to provide the public with the knowledge to circumvent the movie industry’s copyright protection.  The expressive aspect of the DeCSS program, if any, is de minimus.  The illegalization of a course of conduct because it was “in part initiated, evidenced, or carried out by means of language, either spoken, written or printed” has never been considered an unconstitutional restriction on speech.   As established in the foregoing pages, the need for copyright law is essential to the growth of innovative ways.  The DeCSS program violates this important public law.  Thus, it  any immunization under the First Amendment is unlikely.

X. Dissention in the Courts
The issue, whether a computer program is deserving of First Amendment protection, may appear clear cut.  There are, however differing views amongst the lower courts.
In Bernstein v. United States Department of Justice, 176 F.3d 1132 (9th Cir. 1999), plaintiff, a professor of mathematics and creator of encryption code, brought an action against the Department of Justice challenging the constitutionality of the International Traffic in Arms Regulations.   The International Traffic in Arms Regulations requires encryption codes to be licensed with the Department prior to the code’s exportation.   Plaintiff filed suit after unsuccessful attempts to determine the scope of the export regulations.   The United States Court of Appeals for the Ninth Circuit held that the challenged regulations “constitute a prior restraint on speech that offends the First Amendment.”   The court reasoned that encryption software in its source code form was a means to express scientific ideas.   The court dictated that the source code was sufficiently expressive and therefore entitled to protection under the First Amendment.
The facts of Bernstein, however are distinguishable from those concerning the DeCSS program and the Digital Millennium Copyright Act.   First, the court in Bernstein  gave First Amendment protection to the encryption software in its source code form only.  A source code is “meant to be read and understood by humans, and… cannot be used to control directly the functioning of a computer.”   DeCSS, however is not meant to be read or understood by humans.  Rather, the purpose of the program is to directly control the functioning of a computer.
Secondly, the DeCSS program was never intended to express scientific ideas or promote the public understanding of decryption codes.  Rather, its sole purpose was to enable individuals to make unauthorized duplicates of copyrighted material.
Third, section 1201(a)(2) of the Digital Millennium Copyright Act is an essential component of copyright law.  As mention above, copyright law is considered to be of substantial public interest.  The public interest of the International Traffic in Arms Regulation, however is difficult to demonstrate.  While statutes provide a record as to legislative intent, the intent of the drafters of a regulation is not usually determinable.  Thus, the public interest intended to be promoted by the regulation is likely to remain unknown.   If the public interest is unknown, it cannot be argued that the interest it promotes is greater than that of the encryption code.
Finally, the Ninth Circuit explicitly noted that its holding was not to be interpreted as saying that all software is expressive.  In fact, the court conceded that much of it would not be protected by the First Amendment.    Regardless of what the Ninth Circuit held, the Bernstein opinion is of little consequence.  The ruling has recently been withdrawn and will be reheard by the Court en banc.
 The facts of Junger v. Daley, 8 F. Supp.2d 708, (N.D Ohio 1998), are strikingly similar to those in Bernstein.  Nevertheless, the United States District Court for the Northern District of Ohio arrived at a differing conclusion.  In Junger, the plaintiff, a law professor, brought an action against defendant, the United States Secretary of Commerce, challenging the constitutionality of government export regulations on encryption software.   The court held that encryption software was not sufficiently expressive to warrant protection under the First Amendment.   The court reasoned that while some software is inherently expressive others are inherently functional.   Encryption software is inherently functional.  “[I]t is created and… exported to do a specified task, not to communicate ideas.”   The District Court did, however concede that because certain trained computer programmers would be able to interpret the source code, encryption software may “occasionally have communicative elements.”   In citing the Supreme Court the District court concluded, however that “[i]t is possible to find some kernel of expression in almost every activity[.]”   Merely because an individual’s activity contains a hint of expression does not necessarily mean that that activity is extended First Amendment protection.
 Karn v. U.S. Dept. of State, 925 F.Supp. 1 (D.D.C 1996), as in the prior two cases, concerns regulations on the exportation of encryption codes.  In Karn, the plaintiff, an encryption code exporter, challenged defendant’s determination that plaintiff’s encryption code was subject to ITAR export controls.   The plaintiff contended that because the encryption program’s source code contained attached comments that were comprehensible to the public, the code warranted First Amendment protection.   The District Court concurred with the plaintiff and assumed that source codes with attached commentary is protected speech.  The Court noted, however, that source codes absent commentaries are “merely a means of commanding a computer to perform a function.”
 In both Junger and Karn the courts refused to extend First Amendment protection to encryption code software even in their source code forms.  Although Bernstein held that an encryption code program in its source code form may be expressive, it did not hold that all encryption code programs are expressive.  Moreover, because this holding was withdrawn and is pending rehearing its rationale is of little consequence.

XI. Conclusion
The constitutionality of Section 1201(a)(2) is evident.  Congress’ addition of the anti-circumvention provision to the Digital Millennium Copyright Act was a necessary and proper exercise of its power.  Moreover, Section 1201(a)(2) promotes an important public interest since it furthers the purpose of copyright law in an expanding world of technology and fosters the growth Science and the Arts.  DeCSS, on the other hand, does little to promote the public’s interest in free speech.  In fact, numerous courts have held that the program lacks any expressive content worthy of First Amendment protection.  Although it is highly improbable that DeCSS will ever be fully removed from the Internet, the same probability exists that its use will ever be considered protected speech.  With that in mind, Congress will continue to add sections such as 1201(a)(2) to the Digital Millennium Copyright Act in order to ensure that copyright law evolves as new technology develops and the Internet expands.

1 Top 50 All Time Highest Grossing Movies (visited Mar. 31, 2000)<wysiwyg://4/http://movieweb.com/movie/alltime.html>.

2 Universal City Studios, Inc v. Reimerdes, No. 00 Civ.  0277(LAK), 2000 U.S. Dist. WL 124997, at *1 (N.D. N.Y. Feb. 2, 2000)

  Id.

  (visited Apr. 8, 2000)<http://www.reel.com>.

  BLACK’S LAW DICTIONARY 336 (6th ed. 1990)

  Universal City Studios, 2000 WL 124997, at *1

  Id.

  Memorandum Order, in MPPA v. Reimerdes, Corley and Kazan (visited Mar. 9, 2000) <http://www.nysd.uscourts.gov.courtweb/pdf/00-01149.PDF>.

  MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1996)

  See Universal City Studios, 2000 WL 124997, *2 (2000)

  Lawrence Lessig, Commentaries, The Law of the Horses: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 519 (1999)

  See Universal City Studios, 2000 WL 124997, *1 (2000)

  See 17 U.S.C.A. § 1201(3)(A)

  17 U.S.C.A § 1201(a)(2)

  Universal City Studios, 2000 WL 124997, *6 (2000)

  Id. at *2

  Id.

  Id.

  See Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2nd Cir. 1977)

  See Harper & Row Publishers, Inc v. Nation Enterprises, 471 U.S. 539, 560-561 (1985)

  H.R. No. 94-1476, 94th Cong. 2nd Sess. 73-74, reprinted in (1976) U.S.Code Cong. & Admin.News, p. 5687.

  MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1996)

  Universal City Studios, 2000 WL 124997, *8 (2000)

  See Harper & Row Publishers, 471 U.S. at 560

  Id. at 564

  Universal City Studios, 2000 WL 124997, *1 (2000)

  Id.

  Id.

  Id. at *7 (emphasis added)

  See U.S. CONST. art. I, § 8, cl. 18.

  Universal City Studios, 2000 WL 124997, *7 (2000)

  See Id.

  Id. (citing S.REP. No. 105-190, 105th Cong., 2d Sess. (1998)).

  See Id. at *7

  See Id. at *8

  Id. (citing Mazer v. Stein, 347 U.S. 201, 219 (1954))

  Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 492 (1949)

  Mo.Rev.Stat.Ann § 8305 (1939)

  Giboney, 336 U.S. at 492
  Id. at 502

  Id. at 498

  Bernstein v. United States Dept. of Justice, 176 F.3d 1132, (9th Cir. 1999)

  Id. at 1136

  Id.

  Id. at 1135

  Id. at 1141

  Id. at 1142

  Id. at 1147

  See Id. at 1144

  Junger v. Daley, 8 F. Supp.2d 708, 711 (N.D. Ohio 1998)

  See Id. at 715

  See Id. at 716

  Id. at 717

  Id.

  Id. at 717 (citing City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989))

  See Id.

  Karn v. U.S. Department of State, 925 F. Supp. 1, 3 (D.D.C. 1996)

  Id. at 9

  Id. at 10