Advanced Copyright Issues on the Internet - Fenwick & West LLP

systems, or computer networks, and the defendants had not sought authorization for theiractivities. 690Fourth, the defendants claimed that they were engaged in a fair use under Section 107 ofthe copyright statute. The court categorically rejected this defense, noting that the defendantswere not being sued for copyright infringement, but rather for offering to the public technologyprimarily designed to circumvent technological measures that control access to copyrightedworks. 691 The court held that fair use is not a defense to Section 1201(a)(2) of the DMCA: “IfCongress had meant the fair use defense to apply to such actions, it would have said so. Indeed,as the legislative history demonstrates, the decision not to make fair use a defense to a claimunder Section 1201(a) was quite deliberate.” 692 The court noted that Congress had provided avehicle, in the form of rulemaking by the Register of <strong>Copyright</strong>s, by which particular classes ofcopyrighted works could be exempted from the prohibitions if noninfringing uses of thoseclasses of works would be affected adversely by Section 1201(a)(1). 693 The court also rejectedthe defendants’ assertion that, because DeCSS could be used for noninfringing purposes, itsdistribution should be permitted under Sony Corp. v. Universal City Studios, Inc. 694 The courtelected to follow the holding in the RealNetworks case that a piece of technology might have asubstantial noninfringing use, and therefore be immune from attack under Sony, yet nonethelessbe subject to suppression under Section 1201. 695Finally, in one of the most novel aspects of the opinion, the court addressed the issuewhether the mere linking by the defendants to other Web sites on which DeCSS could beobtained should be deemed to be offering to the public or providing or otherwise trafficking inDeCSS within the prohibitions of Section 1201(a)(2). The court, noting that the dictionarydefinitions of the words “offer,” “provide,” and “traffic” are broad, ruled that “the antitraffickingprovision of the DMCA is implicated where one presents, holds out or makes acircumvention technology or device available, knowing its nature, for the purpose of allowingothers to acquire it.” 696 Accordingly, the court enjoined the defendants from providing threetypes of links:690691692693694695696Id. at 321.Id. at 322.Id.Id. at 323 The court, in a very lengthy analysis, also rejected various First Amendment challenges to theconstitutionality of the anti-circumvention provisions of the DMCA. See id. at 325-341.464 U.S. 417 (1984).Reimerdes, 111 F. Supp. 2d at 323. In the preliminary injunction proceeding, one of the defendants asserted adefense under Section 512(c) of the DMCA, discussed below, which limits liability of “service providers” forcertain acts of infringement committed through systems or networks operated by them. The court rejected thisdefense on the ground that Section 512(c) provides protection only from liability for copyright infringement,and not for violations of the anti-circumvention provisions of Section 1201(a)(2). The court also ruled that thedefendant had offered no proof that he was a “service provider” within the meaning of Section 512(c). 82 F.Supp. 2d at 217.Reimerdes, 111 F. Supp. 2d at 325.- 166 -