Advanced Copyright Issues on the Internet - Fenwick & West LLP

Links “to sites that automatically commence the process of downloading DeCSS upon auser being transferred by defendants’ hyperlinks.” The court ruled that this was thefunctional equivalent of the defendants transferring the DeCSS code themselves. 697Links “to web pages that display nothing more than the DeCSS code or present the useronly with the choice of commencing a download of DeCSS and no other content. Theonly distinction is that the entity extending to the user the option of downloading theprogram is the transferee site rather than defendants, a distinction without adifference.” 698Links “to pages that offer a good deal of content other than DeCSS but that offer ahyperlink for downloading, or transferring to a page for downloading, DeCSS,” based onthe given facts, in which the defendants had intentionally used and touted the links to“mirror” sites to help others find copies of DeCSS, after encouraging sites to post DeCSSand checking to ensure that the mirror sites in fact were posting DeCSS or something thatlooked like it, and proclaimed on their own site that DeCSS could be had by clicking onthe links. 699On appeal, the defendants renewed their attack on the constitutionality of the DMCA. InUniversal City Studios Inc. v. Corley, 700 the Second Circuit rejected such challenges and upheldthe constitutionality of the DMCA anti-circumvention provisions. The court first rejected thedefendants’ argument that Section 1201(c)(1) should be read narrowly to avoid ambiguity thatcould give rise to constitutional infirmities. The defendants contended that Section 1201(c)(1)could and should be read to allow the circumvention of encryption technology when theprotected material would be put to fair uses. The court disagreed that Section 1201(c)(1)permitted such a reading. “Instead, it clearly and simply clarifies that the DMCA targets thecircumvention of digital walls guarding copyrighted material (and trafficking in circumventiontools), but does not concern itself with the use of those materials after circumvention hasoccurred.” 701 The court held that, in any event, the defendants did not claim to be making fairuse of any copyrighted materials, and nothing in the injunction prohibited them from makingsuch fair use. 702 “Fair use has never been held to be a guarantee of access to copyrightedmaterial in order to copy it by the fair user’s preferred technique of in the format of theoriginal.” 703The court ruled that computer programs are not exempted from the category of FirstAmendment speech merely because their instructions require use of a computer. Rather, the697698699700701702703Id.Id.Id.273 F.3d 429 (2d Cir. 2001).Id. at 443 (emphasis in original).Id. at 459.Id.- 167 -