SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001
The Freedom to Link?: The Digital Millennium Copyright Act Implicates the First Amendment in Universal City Studios, Inc. v. Reimerdes
David A. Petteys(fn*)
Table of Contents
I. Introduction .............................................................. 288
II. The Web, Free Expression, Copyright, and the DMCA.............................................................................. 290
III. The Case: Universal City Studios, Inc. v. Reimerdes ...................................................................... 293
A. Factual Background ................................................... 294
B. Findings of Fact ......................................................... 297
C. The Court's Statutory and Constitutional Analysis ..... 298
1. Statutory Analysis ................................................ 299
a. Section 1201(a)(1) ............................................ 299
b. Linking to Other Sites with DeCSS .................. 302
2. First Amendment Challenges ................................ 304
a. DMCA Prohibition Against Posting DeCSS .... 305
b. Prior Restraint ................................................ 307
c. The Prohibition on Linking ............................. 309
3. The Remedy ........................................................ 312
IV. Analysis......................................................................... 314
A. The Prohibition Against Posting DeCSS..................... 314
1. Fair Use ............................................................... 314
2. First Amendment Concerns .................................. 320
B. The Ban on Linking to Sites with DeCSS.................... 325
1. The Mechanics of Applying Section 1201 to Linking ........................................................................ 326
2. First Amendment Issues ....................................... 329
a. The Level of Scrutiny ...................................... 331
b. The Injunction and Intermediate Scrutiny ....... 332
c. The Chilling Effect on Linking ........................ 336
V. Conclusion ....................................................................... 337
I. Introduction
Imagine the following hypothetical:There are two Web sites. The first one, an online news report, publishes an article about copyright infringement featuring a hyperlink at its end which leads readers to a site [that] the article's publisher knows contains unlawful material-an illegal software code, perhaps, or a pirated music file or an unauthorized copy of a secret religious text. Meanwhile, the publisher of the second Web site, a lone crusader who believes that all information should be freely available to everyone, publishes an article with the exact same link. Question: May a court place the two publishers on the scales and reasonably conclude that one is engaging in lawful linking activity while the other has perpetrated a legal no-no?(fn1)
An issue analogous to this hypothetical was addressed by United States District Court Judge Kaplan in Universal City Studios, Inc. v. Reimerdes.(fn2) In short, the court resolved the issue by enjoining the defendants from maintaining hyperlinks(fn3) from their site to third-party sites offering a computer utility called Decode Content Scrambling System (DeCSS).(fn4) The primary attribute of DeCSS is its ability to decrypt or "rip" encrypted Digital Versatile Discs (DVDs).(fn5) During the manufacturing process, the contents of a DVD are encrypted with a process called Content Scramble System (CSS) that prevents the DVD from being played on anything other than a licensed DVD player capable of decoding the encrypted disc.(fn6) Once decrypted, the content of the DVD is unscrambled and may be copied.(fn7) The Digital Millennium Copyright Act (DMCA)(fn8) makes it unlawful to provide, offer or otherwise traffic in any technology that allows for the decryption or circumvention of technological measures intended to protect the access or use of copyrighted digital materials, such as encryption.(fn9) Beyond merely holding that the defendants violated the Act by posting copies of the program on their web site,(fn10) the court held that establishing and maintaining links to third-party web sites was equivalent to posting.(fn11) As a result, the court concluded that linking was equivalent to "providing, offering, or otherwise trafficking" in DeCSS.(fn12)
A summary of the competing principles involved is perhaps best stated by Judge Kaplan himself:[T]he dispute between these parties is simply put if not necessarily simply resolved. Plaintiffs have invested huge sums. . . in reliance upon . . . [assurances] that they will have the exclusive right to copy and distribute those motion pictures for economic gain. Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems .... Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era. Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs' favor.(fn13)
Universal City Studios, Inc. v. Reimerdes is about much more than decrypting DVDs. It raises questions regarding the extent to which fundamental values will be recognized in cyberspace and how regulation of the Internet will impact those values. This Note focuses on the application of the DMCA to prohibit the posting and linking of "circumvention technology"(fn14) on the Internet, while also addressing the larger issue of the unintended consequences that regulating cyberspace can have on free expression. Because hypertext links play such a fundamental role in the utility of the Internet, this Note argues that the application of the DMCA's anti-trafficking provisions to enjoin linking places a significant and unwarranted burden on the Internet as a forum for free expression.
Section II is intended to provide a brief background of the technological and legal environment in which the Reimerdes controversy arose. Section III focuses on the factual background and rationale for the Reimerdes decision. Section IV then analyzes the rule of law produced by the decision and the impact that this decision has on free speech in cyberspace. Finally, this Note concludes that any prohibition banning hyperlinks should be granted only under extraordinary circumstances because of the potential for creating a substantial chilling effect on the Internet as an engine for free expression.
II. The Web, Free Expression, Copyright, and the DMCA
The World Wide Web has revolutionized the way people and businesses communicate ideas and obtain and disseminate information. Cyberspace provides an optimal platform for publishers to disseminate their ideas to millions of people around the world simultaneously. Moreover, virtually anyone with access to the Internet can become a publisher because the transaction costs and barriers to entry in cyberspace are nominal compared to the costs of publishing in real space. With an Internet connection, any computer user can become a virtual worldwide "town crier" or "pamphleteer."(fn15) The potential uses of the Internet are limited only by the scope of the human imagination. In the words of the "inventor" of the Internet, Tim Berners-Lee:The dream behind the Web is of a common information space in which we communicate by sharing information. Its universality is essential: the fact that a hypertext link can point to anything, be it personal, local or global, be it draft or highly polished. There was a second part of the dream, too, dependent on the Web being so generally used that it became a realistic mirror (or in fact the primary embodiment) of the ways in which we work and play and socialize. That was that once the state of our interactions was on line, we could then use computers to help us analyze it, make sense of what we are doing, where we individually fit in, and how we can better work together.(fn16)
Like any technology, however, there are side effects and unintended consequences. Noxious computer programs such as viruses and Trojan horse programs invade computers, e-mail inboxes are bombarded with "junk" e-mails, and "cybersquatters" attempt to capitalize on the names of others. Just as the positive potential of the Internet is limitless, so is the potential for abuse. The challenge posed to Congress and to the courts is to create rules that minimize the negative externalities created by the technology without stifling the creative and commercial potential of the medium.
Digital technology probably impacts the copyright industry to a greater extent than any other industry. Simultaneously, the Internet presents both an incredible opportunity and a disastrous nightmare for the copyright industry. On one hand, the Internet provides a new frontier as a potential delivery medium for movies, music, games and other entertainment. On the other, it represents a giant, global copying machine, where pirated versions of copyrighted works can be...
