Vol 7 No 1 - Roger Williams University School of Law

site, but after an interim injunction was issued they removed itfrom their site and linked to other sites. Judge Kaplan held thatthey breached the DMCA by providing or otherwise trafficking ina device that circumvents a technological protection measure.166One series of arguments in the case, which is now on appealto the second circuit, was that the DMCA was unconstitutional onFirst Amendment grounds, as it restricted the expression of thecomputer code. Judge Kaplan held that while code in object orsource code can be speech for First Amendment purposes, thatdoes not mean it cannot be regulated.167 He explained that whilethe code is expressive, the behaviour it causes is functional andthe functional aspect of speech can be regulated even if it has anincidental impact on the expressive aspect.168 He explained thatregulation of the functional aspect of speech is content neutral, notcontent specific, and therefore only requires an intermediate, asopposed to a strict, level of scrutiny.169 The government objectivehere was to prevent large scale copyright piracy in the digitalenvironment—this was a legitimate objective and the scrutiny wassatisfied.I suggest the judge understated the discursive aspect of thefunctional behaviour of code. Code expressed as 1s and 0s isexpressive, it is a literary text for copyright purposes—that muchis obvious. But the behaviour that the code causes is not justfunctional, it is also communicative and discursive. Thebehaviour created by this code allowed the people using DeCSS to166. Reimerdes, 111 F. Supp. 2d at 319.167. Id. at 326.Defendants’ assertion that computer code is “protected” by the FirstAmendment is quite understandable. Courts often have spoken of certaincategories of expression as “not within the area of constitutionally protectedspeech,” so defendants naturally wish to avoid exclusion by an unfavorablecategorization of computer code. But such judicial statements in fact are notliterally true. All modes of expression are covered by the First Amendmentin the sense that the constitutionality of their “regulation must bedetermined by reference to First Amendment doctrine and analysis.”Regulation of different categories of expression, however, is subject to varyinglevels of judicial scrutiny. Thus, to say that a particular form of expression is“protected” by the First Amendment means that the constitutionality of anyregulation of it must be measured by reference to the First Amendment. Insome circumstances, however, the phrase connotes also that the standard formeasurement is the most exacting level available.Id. (footnotes and citations omitted).168. Id. at 327.169. Id. at 328.