00-9185

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
____________________________________________

UNIVERSAL CITY STUDIOS, INC., et al.

Plaintiffs-Appellees

v.

ERIC CORLEY, A/K/A EMMANUEL GOLDSTEIN AND 2600 ENTERPRISES, INC.

Defendants-Appellants

SHAWN C. REIMERDES, ROMAN KAZAN

Defendants
____________________________________________

On Appeal From The United States District Court

For The Southern District Of New York
____________________________________________

BRIEF OF AMICI CURIAE

AMERICAN CIVIL LIBERTIES UNION, AMERICAN LIBRARY ASSOCIATION,
ASSOCIATION FOR RESEARCH LIBRARIES, MUSIC LIBRARY ASSOCIATION,
NATIONAL ASSOCIATION OF INDEPENDENT SCHOOLS, ELECTRONIC
PRIVACY INFORMATION CENTER, AND COMPUTER AND
COMMUNICATIONS INDUSTRY ASSOCIATION
IN SUPPORT OF APPELLANTS AND REVERSAL OF THE JUDGMENT BELOW
____________________________________________

Peter Jazsi, Professor of Law Ann Beeson

Washington College of Law Christopher A. Hansen
American University American Civil Liberties Union
4801 Massachusetts Ave NW Foundation
Washington, DC 20016 125 Broad Street, 18th floor
202-274-4216 New York, New York 10004-2400
212-549-2500
Jessica Litman, Professor of Law
Wayne State University Pamela Samuelson, Professor of Law
Detroit, MI 48202 University of California at Berkeley
313-577-3952 Boalt Hall
Berkeley, CA 94720
Counsel for Amici Curiae 510-642-6775
 TABLE OF CONTENTS

Table of Authorities .......................................................................................iii

Interest of Amici ............................................................................................. 1

Introduction..................................................................................................... 3

Argument…….. .............................................................................................. 7

I. Copyright Law Has Historically Recognized the Need

For Careful First Amendment Balancing ................................... 7

A. The First Amendment Requires that any Expansion

Of Liability to Copyright Holders Survive Careful
Scrutiny ............................................................................ 7

B. The Fair Use Doctrine Has Traditionally Served

To Ensure that Copyright Laws Are Narrowly
Tailored in Accordance with the First Amendment......... 9

II. As Interpreted by the District Court, the Anti-

Circumvention and Anti-Trafficking Provisions
of the DMCA Fail the Careful Scrutiny Required
of Statutes That Infringe Protected Speech .............................. 13

A. To Survive Constitutional Scrutiny, the Anti-

Circumvention and Anti-Trafficking Provisions
Must Accommodate Fair use and
Free Speech Rights......................................................... 13

B. To Survive Constitutional Scrutiny, the

Anti-Trafficking Provision Must also Require
Proof of Harm and a Direct Relationship
Between the Infringer and the Defendant ...................... 17

C. If Section 1201(a)(2) Lacks the Constitutional

Safeguards Outlined Above, It Must Be Voided
on its Face ...................................................................... 19

III. The District Court's Injunction Prohibiting the Use of

Links to Web Sites with Circumvention Technology
Violates the First Amendment.................................................. 21
i
 A. Linking Is Expressive, Communicative Activity
Protected by the First Amendment................................. 21

B. The District Court Erred by Interpreting the Anti-

Trafficking Provision to Prohibit Mere Links to
Circumvention Technology............................................ 23

C. Imposing Liability for Mere Links to Circumvention

Technology Violates the First Amendment ................... 25

Conclusion .................................................................................................... 27

Certificate of Compliance ............................................................................. 30

Certificate of Service 31

ii
 TABLE OF AUTHORITIES

CASES
ACLU v. Reno (ACLU II), 31 F. Supp. 2d 473 (E.D. Pa. 1999),
Aff'd 217 F.3d 162 (3d Cir. 2000) ............................................................... 24

Bernstein v. Dep't of Justice, 176 F.3d 1132, rehearing granted

and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999) .................................. 9

Blount v. Rizzi, 400 U.S. 410 (1971)............................................................. 22

Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) ........................ 11

DSC Communications v. Pulse Communications,

170 F.3d 1354 (Fed. Cir. 1999)..................................................................... 20

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) ................................................ 11

Gershwin Publ'd Corp. v. Columbia Artists Management, Inc.,

443 F.2d 1159 (2d Cir. 1971)........................................................................ 20

Harper & Row, Publishers, Inc. v. Nation Enterprises

471 U.S. 539 (1985)................................................................................ 10, 12

Hustler Magazine, Inc. v. Moral Majority, Inc.,

796 F.2d 1148 (9th Cir. 1986)........................................................................ 11

Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) ................................................ 9

Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc.,

964 F.2d 965 (9th Cir. 1992), cert. denied, 507 U.S. 985 (1993).................. 14

Nihon Keizai Shimbun v. Comline Business Data,

166 F.3d 65 (2d Cir. 1999)............................................................................ 12

Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc.,

907 F. Supp. 1361 (N.D. Cal. 1995) ............................................................. 20
Reno v. ACLU (ACLU I), 521 U.S. 844 (1997) .................................10, 23-24

RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999) ...... 13

Rosemont Enterprises, Inc. v. Random House, Inc.,

366 F.2d 303 (2d Cir. 1966).......................................................................... 11
iii
Sable Comm. v. FCC, 492 U.S. 115 (1989).................................................. 10

Sega Enterprises, Ltd. v. Accolade, Inc.,

977 F.2d 1510 (9th Cir. 1992)........................................................................ 13

Sega v. MAPHIA, 948 F. Supp. 923 (C.D. Cal. 1996).................................. 19

Shapiro, Bernstein & Co. v. H.L. Green Co.,

316 F.2d 304 (2d Cir. 1964).......................................................................... 20

Sony Corp. of America v. Universal City Studios, Inc.,

464 U.S. 417 (1984).......................................................................... 13, 14, 18

Stewart v. Abend, 495 U.S. 207 (1990)......................................................... 11

Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968) ...... 12

Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294

(S.D.N.Y. 2000) .....................................................................................passim

Virginia v. American Booksellers Assoc., 484 U.S. 383 (1988) ................... 22

STATUTES
Copyright Act of 1976, H.R. Rep. No. 94-1476, p. 66 (1976);
S. Rep. No. 94-473, p. 62 (1975) .............................................................12-13

Digital Millennium Copyright Act, 17 U.S.C. 1201(a)(2).....................passim

17 U.S.C. ' 106 .............................................................................................. 3

17 U.S.C. ' 501 .............................................................................................. 3

OTHER SOURCES
Benkler, Yochai, "Free as the Air to Common Use: First
Amendment Constraints on Enclosure of the Public Domain,"
74 N.Y.U. L. Rev. 354 (1999) ........................................................ 3, 5, 12, 22

Boyle, James, "A Politics of Intellectual Property: Environmentalism

for the Net?," 47 Duke L.J. 87 (1997)........................................................... 3

Cave, Damien, "A Hacker Crackdown?," Salon Magazine, at

http://salon.com/tech/feature/2000/08/07/yoink_napster/print.html
iv
(Aug. 7, 2000) ............................................................................................... 23

Cisneros, Oscar S., "Fear of a Pay Per Use World," Wired, 10/9/00.......... 23

Cohen, Julie, "Unfair Use," The New Republic Online,

www.tnr.com/online/cohen052300.html ...................................................... 23

Committee on Intellectual Property Rights, Computer Science

& Telecommunications Board, "The Digital Dilemma: Intellectual
Property in the Information Age (2000)"..................................................... 16

Digital Millennium Copyright Act (Conference Report to

Accompany H.R. 2281), House Rep. 105-796, 106th Cong.,
2d Sess., Oct. 8, 1998.................................................................................... 27

Digital Millennium Copyright Act of 1998, House Rep. 105-552,

Pt. 2, Comm. on Commerce, 105th Cong., 2d Sess., July 22, 1998 .............. 27

The Digital Millenium Copyright Act of 1998, Sen. Rep. 105-190,

Committee on the Judiciary, 105th Cong., 2d Sess., May 11, 1998 ................ 8

Ginsburg, Jane C., "From Having Copies to Experiencing Works: U.S.

Intellectual Property: Law and Policy," Hugh Hansen, ed. (Sweet &
Maxwell, forthcoming 2001; available at www.ssrn.org) ............................ 16

Goldstein, Paul, "Copyright and the First Amendment,"

70 Colum. L. Rev. 983 (1970) .................................................................. 3, 12
Harmon, Amy, "Group Says It Beat Music Security But Can't Reveal
How," The New York Times, Jan. 15, 2001 .................................................. 9

Nimmer on Copyright, Matthew Bender, 9/97 ............................................. 20

Nimmer, Melville B., "Does Copyright Abridge the First

Amendment Guaranties of Free Speech and the Press?"
17 UCLA L. Rev. 1180 (1970) ....................................................................... 3

Nimmer, David, "A Riff on Fair Use," 148 U. Penn. L. Rev. 673 (1999) .. 22

Richtel, Matt, "Web Music Battle Heats Up,"

The New York Times, Aug. 22, 2000, at C-6............................................... 23

Samuelson, Pamela, "Intellectual Property and the Digital Economy:

v
Why the Anti-Circumvention Regulations Need to Be Revised,"
14 Berkeley Tech. L.J. 519 (1999) ............................................................... 16

Section-By-Section Analysis of H.R. 2281 as Passed by

the United States House of Representatives on August 4, 1998,
105th Cong., 2d. Sess., Comm. On the Judiciary, Sept. 1998 ......................... 8

WIPO Copyright Treaties Implementation and On Line Copyright

Infringement Liability Limitation, House Rep. 105-551, Pt. 1,
Comm. on the Judiciary, 105th Cong., 2d Sess., May 22, 1998 .................... 27

Yen, Alfred C., "Internet Service Provider Liability for

Subscriber Copyright Infringement, Enterprise Liability, and
the First Amendment," 88 Geo. L.J. 1833 (June 2000)

vi
INTERESTS OF AMICI

Amici submit this brief urging that this Court reverse the decision of the

district court and remand the case for additional fact-finding. Amici have obtained

the consent of all of the parties.

The American Civil Liberties Union ("ACLU") is a nationwide, nonprofit,

nonpartisan organization with nearly 300,000 members dedicated to the principles

of liberty and equality embodied in the U.S. Constitution. The protection of

principles of freedom of expression as guaranteed by the First Amendment is an

area of special concern to the ACLU. The ACLU has been at the forefront in

numerous state and federal cases involving freedom of expression on the Internet.

The American Library Association ("ALA") is a nonprofit educational

organization of more than 61,000 librarians, library educators, information

specialists, library trustees, and friends of libraries representing public, school,

academic, state, and specialized libraries. ALA is dedicated to the improvement of

library and information services, to the public's right to a free and open information

society--intellectual participation--and to the idea of intellectual freedom.

The Association for Research Libraries ("ARL") is a not-for-profit

membership organization comprising the leading research libraries in North

America. Its mission is to shape and influence forces affecting the future of

research libraries in the process of scholarly communication. ARL programs and

services promote equitable access to and effective use of recorded knowledge in

support of teaching, research, scholarship, and community service.

1
 The Music Library Association ("MLA") is the professional organization in

the United States devoted to music librarianship and to all aspects of music

materials in libraries. Founded in 1931, MLA and its members make significant

contributions to librarianship, publishing, standards and scholarship, and the

development of new information technologies.

The National Association of Independent Schools ("NAIS") is a voluntary

membership organization serving independent day and boarding schools

nationwide. Representing over 1,100 independent schools in the United States and

38 other countries, the NAIS have a keen interest in access to information through

fair use exceptions, particularly online.

The Electronic Privacy Information Center ("EPIC") is a non-profit, public

interest research organization focusing on civil liberties issues in the field of

electronic information. EPIC works to protect privacy, the First Amendment, and

constitutional values in new communications media through policy research,

public education and litigation.

The Computer & Communications Industry Association ("CCIA") is an

international, nonprofit association of computer and communications firms.

CCIA's members include equipment manufacturers, software developers, and

telecommunications and online service providers. CCIA's mission is to promote

open, barrier-free competition in the offering of computer and communications

products and services worldwide.

2
INTRODUCTION

If copyright law is to continue to be true to the First Amendment and its

constitutional roots,1 the grant of additional rights to copyright holders should

foster rather than stifle creative expression.2 The Digital Millennium Copyright

Act (DMCA) represents an unprecedented expansion of copyright law. To

comprehend its scope, and the First Amendment problems it presents, it is helpful

to conceptualize copyright protections as consisting of concentric rings of liability

to copyright holders.3 The charts below illustrate this metaphor. At the core is

direct liability for copyright infringement.4 In the next ring are the indirect liability

doctrines of contributory infringement and vicarious liability that courts have read

into copyright law through case by case adjudications. These first two rings of

liability accommodate free speech concerns by recognizing fair use rights. The

DMCA adds a third ring of indirect liability for circumventing technical measures

used to protect access to copyrighted works ("the anti-circumvention provision"),5

and a fourth ring for making or trafficking in circumvention technology ("the anti-

1
See generally Melville B. Nimmer, “Does Copyright Abridge the First
Amendment Guaranties of Free Speech and the Press?”, 17 U.C.L.A. L. Rev. 1180
(1970); Paul Goldstein, “Copyright and the First Amendment,” 70 Colum. L. Rev.
983 (1970).
2
Yochai Benkler, “Free as the Air to Common Use: First Amendment
Constraints on Enclosure of the Public Domain,” 74 N.Y.U. L. Rev. 354, 386-89
(1999); James Boyle, “A Politics of Intellectual Property: Environmentalism for
the Net?,” 47 Duke L.J. 87, 89 (1997).
3
See Benkler, supra note 2, at 358.
4
17 U.S.C. § 106, § 501.
5
17 U.S.C. §1201(a)(1)(A) "No person shall circumvent a technological
measure that effectively controls access to a work protected under this title."
3
trafficking provision").6 In addition to holding that the third and fourth rings of

liability do not allow fair use rights, the district court in this case added yet a fifth

ring of indirect liability based on mere links to sites containing circumvention

technology. As the circles of indirect liability expand outward, the quantum of free

speech shrinks – unless the law incorporates limiting principles to preserve a

robust domain for free speech interests.7

Courts have imposed indirect liability for copyright infringement in

situations in which third parties have knowingly and materially participated in

illegal behavior. If indirect liability is expanded without regard to (1) whether

there were any underlying acts of infringement; (2) whether any relationship exists

between the actual infringers and the person the plaintiff seeks to hold indirectly

liable; and, most importantly, (3) whether a fair use or other free speech right

applies, that expansion presents grave constitutional problems. Yet, in this case, a

6
17 U.S.C. §1201(a)(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; or
(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.
17 U.S.C. § 1201(b)(1) similarly prohibits trafficking in technology "for the
purpose of circumventing protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title."

4
 journalist was held liable under the DMCA as a trafficker in circumvention

technology for posting and linking to a computer program known as DeCSS even

though there is no proof that the posting of DeCSS has caused any underlying acts

of infringement of DVD movies in which the plaintiffs own copyrights. Universal

City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000). Nor is there

proof that this defendant either substantially contributed to copyright infringement

or had any ability to control the acts of any users of DeCSS, as previous indirect

liability standards would require. Even more fundamentally, the district court in

this case erred by holding that fair use and the First Amendment are irrelevant to a

charge under the anti-trafficking provision. Id. at 324. As the charts and

discussion below illustrate, the district court's expansive interpretation of liability

under the DMCA violates the First Amendment.

Pre-DMCA Liability
Links
Above the line:
Trafficking - no fair use;
- an infringing act; and
Circumvent - a sufficient relationship between
infringer and defendant
Contrib.

Below the line: either

- fair use;
- no infringing act; or
- insufficient relationship between
infringer and defendant

I = direct infringer
Shading = liability
7
See Benkler, supra note 2, at 393 ("An increase in the amount of material
one owns decreases the communicative components freely available to all
others.").
5
 District Court Interpretation of Liability Under DMCA

Links
Above the line:
Trafficking - no fair use;
- an infringing act; and
Circumvent - a sufficient relationship between
infringer and defendant
Contrib.

Below the line: either

- fair use;
- no infringing act; or
- insufficient relationship between
infringer and defendant

I = direct infringer
Shading = liability

Constitutional Interpretation of Liability Under DMCA

Links
Above the line:
Trafficking - no fair use;
- an infringing act; and
Circumvent - a sufficient relationship between
infringer and defendant
Contrib.

Below the line: either

- fair use;
- no infringing act; or
- insufficient relationship between
infringer and defendant

6
ARGUMENT

I. Copyright Law Has Historically Recognized the Need for Careful First
Amendment Balancing.

A. The First Amendment Requires That Any Expansion of Liability

to Copyright Holders Survive Careful Scrutiny.

The DMCA's anti-circumvention and anti-trafficking provisions punish

entirely new categories of noninfringing, protected speech, and create the third and

fourth rings of liability outlined above. Congress believed that this expansion of

liability was necessary to prevent "massive piracy" that might be facilitated by “the

ease with which digital works can be copied and distributed worldwide virtually

instantaneously.” The Digital Millenium Copyright Act of 1998, Sen. Rep. 105-

190, Comm. on the Judiciary, 105th Cong., 2d. Sess., May 11, 1998 (Sen. Judiciary

Rep.) at 8. The anti-circumvention provision was intended to “encourage[]

technological solutions … by enforcing private parties’ use of technological

measures with legal sanctions for circumvention ….” Id. at 11. The provision

would “supplement” the copyright law by promoting the use and effectiveness of

technological measures. See id. at 9. The anti-trafficking provisions would, in

turn, “supplement[] the prohibition against the act of circumvention ... with

prohibitions on creating and making available certain technologies … developed or

advertised to defeat technological protections against unauthorized access to a

work.” Section-By-Section Analysis of H.R. 2281 as Passed by the United States

House of Representatives on August 4, 1998, 105th Cong., 2d. Sess., Comm. on the

Judiciary, Sept. 1998 (House Manager’s Rep.) at 8.

7
 This expansion clearly implicates the First Amendment. The anti-

circumvention provision of the DMCA prohibits unauthorized access to all speech

protected by access control technology regardless of whether the user has a free

speech right to use the speech. The anti-trafficking provision further inhibits

access to noninfringing speech by outlawing the technology needed to obtain that

speech. And to the extent that the challenged circumvention technology is

software, that work is itself speech. See Universal City Studios, Inc. v. Reimerdes,

111 F. Supp. 2d at 326-27; see also Junger v. Daley, 209 F.3d 481, 485 (6th Cir.

2000); Bernstein v. Dep’t of Justice, 176 F.3d 1132, 1141, rehearing granted and

opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999). A recent incident illustrates the

DMCA's very real impact on speech. When the music industry issued a challenge

to test the security of a new digital music copyright protection system, Princeton

computer science Professor Edward Felten accepted the challenge. See Amy

Harmon, “Group Says It Beat Music Security But Can't Reveal How,” The New

York Times, Jan.15, 2001. He succeeded in writing a program that disabled the

copyright protection, but was then deterred from publishing his results for fear of

liability under the DMCA's anti-trafficking and anti-circumvention rules. Id.

Given their direct application to protected speech, there is “no basis for

qualifying the level of First Amendment scrutiny that should be applied” to the

DMCA provisions. Reno v. ACLU ("ACLU I"), 521 U.S. 844, 870 (1997). Even if

Congress's asserted interest is compelling, the First Amendment inquiry does not

end. To survive constitutional scrutiny, the anti-circumvention and anti-trafficking

8
provisions of the Constitution must be narrowly tailored to achieve a compelling

government interest.8 Id., at 879; Sable Comm. v. FCC, 492 U.S. 115, 126 (1989).

B. The Fair Use Doctrine Has Traditionally Served to Ensure that

Copyright Laws Are Narrowly Tailored in Accordance with the
First Amendment.

Traditionally, the fair use doctrine has ensured that copyright laws are

consistent with the First Amendment. See Harper & Row, Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539, 560 (1985) (suggesting the constitutional

dimension of the fair use doctrine). Making fair use of another author’s work is

often necessary to engage in critical commentary, news reporting, and other free

speech-related activities that serve First Amendment goals. See, e.g., Campbell v.

Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) (fair use parody as a form of critical

commentary); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303

(2d Cir. 1966) (fair use to reproduce portions of article in critical biography of

Howard Hughes); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F. 2d 1148

(9th Cir. 1986) (fair use to reproduce parody of Jerry Falwell in protest mailing

about the parody); Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) (fair use to parody

popular song in humor magazine).

8
The district court applied intermediate scrutiny based on the "functional"
component of the speech covered by the anti-trafficking provision. Amici agree
with appellants that the level of scrutiny applied to protected speech should not,
and has never previously been, determined by the functionality of the speech.
Amici believe, however, that even under intermediate scrutiny the anti-trafficking
provision, as interpreted by the district court, would violate the First Amendment,
because of the complete lack of fit between any actual harm and the breadth of the
speech restriction.
9
 In addition to its roots in the First Amendment, the Supreme Court has noted

that the fair use doctrine is required by the Constitution's copyright clause itself.

“[S]ome opportunity for fair use of copyrighted materials has been thought

necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science

and useful Arts….’" Campbell, 510 U.S. at 575 (citing U.S. Const., Art. I, sec. 8);

see also id. at 577, quoting Stewart v. Abend, 495 U.S. 207, 236 (1990) (fair use

“permits [and requires] courts to avoid rigid application of the copyright statute

when, on occasion, it would stifle the very creativity which that law is intended to

foster”) (emphasis added).

As the District Court below observed, fair use “has been viewed by the

courts as a safety valve that accommodates the exclusive rights conferred by

copyright with the freedom of expression guaranteed by the First Amendment.”

Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 321 (S.D.N.Y.

2000). Various Supreme Court and Court of Appeals’ decisions confirm this. See,

e.g., Harper & Row v. Nation Enterprises, Inc. 471 U.S. 539 (1985); Nihon Keizai

Shimbun v. Comline Business Data, 166 F.3d 65, 74 (2d Cir. 1999). Without fair

use or a similar limiting principle in copyright law, this law would frequently clash

with the First Amendment. See generally Goldstein, supra note 1; Benkler, supra

note 2.

It has generally been unnecessary for courts to rely explicitly on the

constitutional basis for fair use because of its longstanding doctrinal home in

American copyright law. See, e.g., Time, Inc. v. Bernard Geis Assocs., 293 F.

10
Supp. 130 (S.D.N.Y. 1968) (fair use to reproduce frames of Zapruder film in order

to explain author’s theory of Kennedy assassination). When Congress finally

codified fair use in the Copyright Act of 1976, it identified several categories of

favored uses, i.e., for “criticism, comment, news reporting, teaching…,

scholarship, [and] research,” all of which are free speech-related uses of

copyrighted works. When codifying fair use, Congress made clear that the newly

adopted fair use provision was meant “to restate the present judicial doctrine of fair

use, not to change, narrow or enlarge it in any way.” See H.R. Rep. No. 94-1476,

p. 66 (1976); S. Rep. No. 94-473, p. 62 (1975). The legislative history also

evidences that Congress did not intend to “freeze” the concept of fair use and

expected that courts would continue to evolve fair use principles in the course of

common law adjudications, “especially during a period of rapid technological

change,” as they had done for many decades. Id.

As anticipated, courts have frequently invoked fair use to mediate tensions

between interests of copyright owners and those of subsequent users of protected

works in cases involving new technologies that posed challenging questions for

copyright law. See, e.g., Sony Corp. of America v. Universal City Studios, Inc.,

464 U.S. 417 (1984) (time-shift copying of television programs held fair use); Sega

Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) (fair use to

reverse engineer computer program code for legitimate purpose of getting access to

information necessary to make a compatible program, furthering constitutional

11
purposes of copyright); RIAA v. Diamond Multimedia Sys., Inc., 180 F.3d 1072,

1079 (9th Cir. 1999) (space-shift copying of music also fair use).

The most prominent role of fair use lies in the central core of the concentric

circles of copyright liability set forth above, that is, as a limitation on the exclusive

rights of copyright owners when they have claimed direct infringement by a

defendant. But fair use also has a crucial role in indirect liability cases. One

proper defense in a case involving claims of contributory infringement or vicarious

liability is that the underlying acts which the defendant facilitated or could have

controlled are, in fact, fair uses. See, e.g., Lewis Galoob Toys, Inc. v. Nintendo of

Am., Inc., 964 F.2d 965 (9th Cir. 1992), cert. denied, 507 U.S. 985 (1993) (ruling,

in part, that Galoob was not contributorily liable for copyright infringement

because users of Galoob’s game genie were fair users). Fair uses are, moreover,

among the noninfringing uses of a technology that may be deemed “substantial” so

as to limit the power of copyright owners to impose indirect liability on the

manufacture and sale of an infringement-enabling technology. See, e.g., Sony

Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (no

contributory infringement because of substantial noninfringing uses of Betamax

machines). Indeed, free speech concerns are perhaps greater in the indirect

liability context because third parties are even more likely to be chilled by the

possibility of liability than direct users of copyrighted material.9

9
See, e.g., Alfred C. Yen, “Internet Service Provider Liability for Subscriber
Copyright Infringement, Enterprise Liability, and the First Amendment,” 88 Geo.
L.J. 1833, 1888 (June 2000).
12
II. As Interpreted by the District Court, the Anti-Circumvention and Anti-
Trafficking Provisions of the DMCA Fail the Careful Scrutiny Required
of Statutes That Infringe Protected Speech.

A. To Survive Constitutional Scrutiny, the Anti-Circumvention and

Anti-Trafficking Provisions Must Accommodate Fair Use and
Free Speech Rights.

As explained above, the anti-circumvention and anti-trafficking provisions

of the DMCA expand indirect liability to create a new third and fourth ring of

persons liable to copyright holders. The provisions give the force of law to

encryption technology that prevents unauthorized access to copyrighted works --

regardless of whether a user has a fair use right to access the work. The

constitutional interests embodied in fair use, however, do not evaporate merely

because a copyright owner uses technological wrappers to protect copies of its

works. And just as Congress could not repeal the fair use provision of U.S.

copyright law without creating serious conflicts with the First Amendment, it

cannot accomplish the same result indirectly by banning all technologies through

which fair uses can be made. Thus, as the case law discussed above makes clear,

in order to pass constitutional muster, the third and fourth rings of liability created

by the DMCA must be narrowly tailored through recognition of a fair use right or

similar limiting principle. The district court clearly erred by holding that fair use

was irrelevant to liability under the DMCA.

Properly interpreted, Congress left some latitude for fair uses in the third

ring of liability it created – the anti-circumvention provision. Section

1201(a)(1)(A) is limited in scope by seven specific limitations that privilege

13
circumvention of access controls for, among other things, reverse engineering,

encryption research, and computer security testing. 17 U.S.C. §§ 1201(f), (g), and

(j). The National Academy of Sciences recently concluded that there may be

additional legitimate reasons for circumventing technical measures used by

copyright owners to protect their works, and that Congress may have intended to

allow these fair use circumventions. See Committee on Intellectual Property

Rights, Computer Science & Telecommunications Board, “The Digital Dilemma:

Intellectual Property in the Information Age (2000),” at 174-75; see also Pamela

Samuelson, “Intellectual Property and the Digital Economy: Why the Anti-

Circumvention Regulations Need to Be Revised,” 14 Berkeley Tech. L.J. 519, 536-

57 (1999).

Sections 1201(c)(1) and (c)(4) also provide support for fair use rights to

circumvent. Section 1201(c)(1) provides that nothing "shall affect rights,

remedies, limitations, or defenses to copyright infringement, including fair use,

under this title." In addition, Section 1201(c)(4) provides that "[n]othing in this

section shall enlarge or diminish any rights of free speech or the press for activities

using consumer electronics, telecommunications, or computing products."

Although the intended scope of these provisions is not entirely clear, amici believe

that courts can and should employ these subsections to excuse some acts of

circumvention seemingly covered by 1201(a)(1)(A) where necessary to enable fair

uses or other free speech-related uses of copyrighted works. See Jane C. Ginsburg,

“From Having Copies to Experiencing Works, U.S. Intellectual Property: Law and

14
Policy,” Hugh Hansen, ed., (Sweet & Maxwell, forthcoming 2001, available at

http://www.ssrn.org), at 15 (suggesting that 1201(c)(1) should be interpreted to

allow a fair use right to circumvent). For example, a purchaser of a mass-marketed

copy of a DVD movie may need to bypass CSS in order to make fair use of that

copy in the course of preparing a critical commentary about it. Even the district

court acknowledged that the range of potential fair uses of DVD movies was

“remarkably varied,” 111 F. Supp. 2d at 338, and opined that technically

sophisticated persons would be able to make fair uses of DVD movies, id. at 322.

Amici agree that the fourth ring of liability – the anti-trafficking provision –

is more difficult to reconcile with constitutionally protected fair use and free

speech interests. Only three of the seven specific exceptions to 1201(a)(1)(A)

explicitly authorize the making of a tool to accomplish privileged circumventions.

If interpreted literally, that means that while users may have a right to circumvent

for specific purposes, they will be unable to exercise that right. There will be no

tools available to assist them in circumvention because the anti-trafficking

provisions make those tools illegal. Congress could not have intended to create

four meaningless privileges. In addition, unlike the anti-circumvention provisions,

Congress failed to include a rulemaking procedure to ensure that the anti-

trafficking provisions do not interfere with fair uses or other noninfringing uses of

copyrighted works. See § 1201(a)(1)(C). Contrary to the district court's holding,

however, amici believe that this Court can read Sections 1201(c)(1) and (c)(4) as

15
limitations to ensure that the anti-trafficking provisions also comply with the First

Amendment.10

In this case, reading a fair use principle into the anti-trafficking provision

would protect the many legitimate expressive free-speech-related uses of DeCSS.

Carnegie Mellon Professor Touretsky posted different modes of expression of

DeCSS for educational purposes. Columbia Law School Professor Jane Ginsburg

linked to sites where DeCSS was posted in the course of teaching her copyright

course. Protesters wore T-shirts bearing portions of the DeCSS source code, and

appellant Corley is a journalist who reproduced and linked to DeCSS in his online

news coverage.

To apply a fair use or free speech principle to the anti-trafficking provision

does not leave copyright holders without a remedy for the manufacture and

distribution of technologies that lack legitimate uses. See, e.g., Sony Corp. of

America v. Universal City Studios, Inc., 464 U.S. 417 (1984). It merely requires

that copyright holders prove that circumvention technology is incapable of

substantial noninfringing uses before a court may impose liability for trafficking in

it. Courts in past cases have been able to distinguish between genuine and

10
It may be less clear how a fair use principle works in the context of an
anti-trafficking case, where liability is imposed not for "use" but for manufacturing
or offering circumvention technology. In the context of liability for trafficking,
amici assert that the necessary free speech right must be tied to the potential use of
the technology rather than to the behavior of the trafficker. If the technology is
capable of substantial noninfringing uses, then the defendant – whether or not she
is also a fair user – has a fair use right to manufacture or offer the technology.
16
pretextual claims of substantial noninfringing uses. See, e.g., Sega v. MAPHIA,

948 F. Supp. 923 (C.D. Cal. 1996).

B. To Survive Constitutional Scrutiny, the Anti-Trafficking

Provision Must Also Require Proof of Harm and a Direct
Relationship Between the Infringer and the Defendant.

To be narrowly tailored, the third and fourth rings of liability imposed by the

DMCA -- for circumvention of access controls and trafficking in circumvention

technology -- must also include the traditional safeguards recognized by courts

before imposing any indirect liability for copyright infringement: 1) proof of

infringement, and 2) some direct relationship between the infringer and the

defendant. To explain why, we begin with a review of the doctrine of indirect

liability for copyright infringement. The federal copyright statute includes no

provision providing for liability based on the acts of another. Rather, indirect

liability for copyright infringement is a judge-made doctrine. Courts have

traditionally recognized two forms, vicarious liability and contributory liability.

Vicarious liability for copyright infringement has its roots in the tort doctrine

of respondeat superior.11 If infringement occurred, and a third-party defendant

had the right and ability to supervise the infringer and a direct financial interest in

the infringement, liability may be imposed. Nimmer on Copyright, Sec.

12.04[A][1] (Matthew Bender 9/97); see Shapiro, Bernstein & Co. v. H.L. Green

Co., 316 F.2d 304, 307 (2d Cir. 1964); Gershwin Publ'g Corp. v. Columbia Artists

Management, Inc., 443 F.2d 1159, 1162-63 (2d Cir. 1971).

11
See Yen, supra note 9, at 1843-44.
17
 The separate but related doctrine of contributory infringement is an

outgrowth of enterprise liability. Nimmer on Copyright, Sec. 12.04[A][2]. Under

contributory infringement rules, a third party is liable only if 1) an infringement

actually occurred; 2) the third party had knowledge of the infringement; 3) the

third party "induced, caused or materially contributed" to it; and 4) the defendant

"substantially participated in the users’ infringement" (which has been interpreted

as requiring that the defendant was "acting in concert" with the direct infringers).

Nimmer on Copyright, at 12-73; see Gershwin Publ'g Corp., 443 F.2d at 1162;

Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp.

1361, 1371 (N.D. Cal. 1995).

Though the specific tests vary somewhat, both forms of indirect liability

require proof of two essential elements (in addition to allowing a fair use defense)

before liability may be imposed on a defendant who did not directly infringe a

copyright: 1) actual infringement; and 2) a direct relationship between the infringer

and the third party. See DSC Communications v. Pulse Communications, 170 F.3d

1354, 1359 (Fed. Cir. 1999) ("direct infringement is a necessary predicate for any

derivative liability ...; absent direct infringement, there can be no contributory

infringement"). Any indirect liability for copyright infringement has the potential

to chill protected speech, because third parties are likely to avoid any connection

with even potentially infringing material in order to avoid liability.12 But requiring

proof of harm and a direct relationship between the infringer and the third party

12
See Yen, supra note 9, at 1843-44.
18
helps to minimize the unnecessary chilling of speech, and thus ensures that liability

is narrowly tailored.

The anti-circumvention and anti-trafficking provisions of the DMCA lack

these necessary safeguards for imposing indirect liability. It is a telling fact that

appellees were unable to identify a single instance of infringement brought about

by DeCSS notwithstanding the presence of hundreds, if not thousands, of copies of

this program on publicly accessible websites, even after it was taken down from

defendant-appellant Corley’s site. Nor did they show that Corley was either

supervising actual infringers or acting in concert with them. Especially since

trafficking in circumvention technology represents an entirely new category of

indirect liability, these additional elements of proof ensure that the provision is

narrowly tailored as required by the First Amendment. To impose liability for

trafficking on defendant-appellant Corley consistent with the Constitution, then,

the Court should remand to the district court for additional fact-finding to

determine first whether Corley had a fair use or free speech right to offer DeCSS

(as discussed in Section II.A. above). Even if he did not, plaintiffs-appellees must

prove that DeCSS was actually used to infringe their copyrights and that

defendant-appellant Corley had a direct relationship with the infringers before

liability may be imposed.

C. If Section 1201(a)(2) Lacks the Constitutional Safeguards

Outlined Above, It Must Be Voided On Its Face.

19
 If this Court finds that the anti-trafficking provision is incapable of the

narrowing construction outlined above, it must be voided on its face.13 See

Virginia v. American Booksellers Assoc., 484 U.S. 383, 397 (1988); Blount v.

Rizzi, 400 U.S. 410, 419 (1971). Without free speech safeguards the expansion of

indirect liability into a fourth ring of liability for trafficking in circumvention

technology unconstitutionally restricts speech that was clearly in the public domain

and protected by the First Amendment prior to the DMCA. See Benkler, supra

note 2, at 385-429; see, e.g., David Nimmer, “A Riff on Fair Use,”148 U. Penn. L.

Rev. 673, 739 (noting the "conscious contraction of user rights" by Congress). As

interpreted by the district court, the anti-trafficking provision operates as an

effective ban on a variety of expressive technologies capable of substantial

noninfringing uses. Unless narrowly construed, such an effective ban on protected

speech violates the First Amendment. See ACLU I, 521 U.S. 844 (1997) (striking

down the Communications Decency Act because it operated as an effective ban on

speech protected for adults). DeCSS is, of course, only one of countless

technologies covered by the statute. In addition, the district court's interpretation

has had and will continue to have a substantial chilling effect on the development

of new technologies capable of important noninfringing uses.14

13
The district court's rationale for concluding that fair use was irrelevant to
liability under the anti-trafficking provision would also preclude a fair use right to
circumvent. Since defendant-appellant Corley was sued under the anti-trafficking
provision, however, this Court need only consider the constitutionality of that
provision.
14
See, e.g., Julie Cohen, "Unfair Use," The New Republic online, at
http://www.tnr.com/online/cohen052300.html; Oscar S. Cisneros, "Fear of a Pay
20
III. The District Court’s Injunction Prohibiting the Use of Links to Web
Sites with Circumvention Technology Violates the First Amendment.

A. Linking is Expressive, Communicative Activity Protected By the

First Amendment.

The web is analogous to “a vast library including millions of readily

available and indexed publications.” ACLU I, 521 U.S. at 853. The unique quality

of this “library” comes from the boundless volumes of information available on the

Internet. Never before have individuals so easily been able to “publish”

information. Id. (“Any person or organization with a computer connected to the

Internet can ‘publish’ information.”). Never before has it been so simple to reach

“a world-wide audience of millions of readers, viewers, researchers, and buyers.”

Id. The Supreme Court recognized and praised this “vast democratic fora of the

Internet.” Id., at 868-69.

If the web is a vast library, links serve as both its card catalog and its digital

footnotes. Web publishers use links to refer users to related documents. A “link”

in a web page allows the user to move from one web site to another that contains

the related document by “clicking” on specified text or graphics on the web page

using a computer mouse. Rather than requiring a reader to go to a library or

bookstore to locate the referenced document, a link allows a web user to click on

Per Use World," Wired, 10/9/00; Matt Richtel, “Web Music Battle Heats Up,” The
New York Times, Aug. 22, 2000, at C-6 (reporting declaratory relief action filed to
determine lawfulness of Gnutella file-sharing software); Damien Cave, “A Hacker
Crackdown?,” Salon Magazine, at
http://salon.com/tech/feature/2000/08/07/yoink_napster/print.html (Aug 7, 2000)
("There is evidence that the mere threat of legal hassles is convincing some
programmers to lay off their grand plans.").
21
the link to access the related document wherever in the world it is located. Linking

effectively ties the entire web together into a single interconnected body of

knowledge made up of all the individually published web pages of millions of

different users around the world. “The ability to link from one computer to

another, from one document to another across the Internet regardless of its status or

physical location, is what makes the Web unique.” ACLU v. Reno (“ACLU II”), 31

F. Supp. 2d 473, 483 (E.D.Pa. 1999), aff’d 217 F.3d 162 (3d Cir. 2000).

Journalists routinely use links to refer users to information posted on other

websites in the course of covering stories on controversial subjects of public

importance. Educators also provide links to information posted on other websites

for purely pedagogical reasons. Columbia Law Professor Jane Ginsburg and

Professor Jessica Litman of Wayne State University Law School have hosted links

to many sites, including cites with DeCSS code, in the teaching of their classes.

The uniqueness of links arises not, as the district court suggests, from their

"functionality." Links are no more "functional" than footnotes. The reader decides

whether to follow the link. The creator of the link has no control over the content

on the linked site, or over whether the reader decides to follow the link. Rather,

the uniqueness of links arises from the efficiency with which users, if they choose,

can locate and retrieve related documents. To illustrate the error in the district

court's analysis, if an annotated Bible contained footnotes referencing Thomas

Aquinas's commentaries and the two books were shelved next to each other at the

library, then the ease of following the footnote to the source would lessen the First

22
Amendment protection of the footnote. The "functionality" of links is irrelevant to

the level of First Amendment protection. Thus, links are clearly expression

entitled to the highest degree of First Amendment protection.

B. The District Court Erred By Interpreting the Anti-Trafficking

Provision To Prohibit Mere Links to Circumvention Technology.

As discussed above, the anti-trafficking provision of the DMCA already

reflects a dramatic extension of liability beyond the behavior sought to be

prevented: copyright infringement. The court below created an additional fifth

ring of indirect liability by imposing liability for linking to circumvention

technologies. Section 1201(a)(2) provides that “[n]o person shall … offer to the

public, provide, or otherwise traffic in any” circumvention technology. The

district court found that this provision "is implicated where one presents, holds out,

or makes a circumvention technology or device available, knowing its nature, for

the purpose of allowing others to acquire it.” 111 F. Supp. 2d at 325. The court

further found that maintaining a link to a web page containing the DeCSS code “is

the functional equivalent of transferring the DeCSS code to the user….” Id. The

court then enjoined the defendants not just from directly distributing DeCSS to the

public, but also from linking to other sites that did. Because linking to a site

containing DeCSS is the “functional equivalent” of directly presenting or making

DeCSS available to the user, the court reasoned, linking to a DeCSS site violates

the DMCA anti-trafficking provision.

23
 But the “functional equivalent” of something is not the thing itself. The text

of the anti-trafficking provision should be interpreted cautiously, with attention to

both the words of the text and the evidence of congressional intent, to avoid further

encroachment on protected speech. Certainly, the language of the statute does not

require the expansive reading that the district court gave to it. Significantly,

moreover, the legislative history of Section 1201(a)(2) and (b)(1) contains no hint

that Congress intended the provision to extend to links. And Congress had ample

opportunity to demonstrate this intent: the Senate Judiciary, House Judiciary, and

House Commerce Committees all issued lengthy reports on the DMCA, as did the

Conference Committee and Congressman Howard Coble, the Chairman of the

House Judiciary Subcommittee on Courts and Intellectual Property and the

manager of the DMCA.15 In none of these detailed documents is there even a

suggestion that Section 1201(a)(2)’s trafficking provision should apply to links to

circumvention technology.

In sum, there is no evidence that Congress intended to construct a fifth ring

of liability for links, nor is there any evidence that a breach of the other four rings

is so imminent as to require a further expansion of liability. In the absence of such

evidence, there is no compelling justification for the lower court’s expansive

15
See Sen. Judiciary Rep.; House Manager’s Rep.; House Judiciary Comm.
Rep.: WIPO Copyright Treaties Implementation and On Line Copyright
Infringement Liability Limitation, House Rep. 105-551, Pt. 1, Comm. on the
Judiciary, 105th Cong., 2d Sess., May 22, 1998; House Commerce Comm. Rep.:
Digital Millennium Copyright Act of 1998, House Rep. 105-552, Pt. 2, Comm. on
Commerce, 105th Cong., 2d. Sess., July 22, 1998; Digital Millennium Copyright

24
interpretation of trafficking to include linking to a DeCSS site. Indeed, this

expansive interpretation steers the decision onto thin ice constitutionally.

C. Imposing Liability for Mere Links to Circumvention Technology

Violates the First Amendment.

The district court's extension of the anti-trafficking statute to impose liability

for merely providing links to sites containing circumvention technology violates

the First Amendment. Mere links between sites do not establish a relationship

sufficient for imposing either vicarious or contributory liability when a link

references a site with circumvention technology. See discussion supra at Section

II.B. In the vast majority of instances, there is no relationship whatsoever between

sites connected through links. There is no ability for a linker to supervise or

control content on the linked site. Neither do websites connected through links

"act in concert" any more than the authors of this brief "act in concert" with

Nimmer by including a reference to his work. It is this lack of control over the

linked site that makes the district court's conclusion that "defendants' posting and

their linking amount to very much the same thing," 111 F. Supp. 2d at 339,

fundamentally wrong. Even if the third and fourth rings of expanded liability for

circumvention and trafficking are constitutional, which is far from clear, to weaken

the causal link between infringement and liability even further would clearly

impose liability beyond constitutional limits.

Act (Conference Report to Accompany H.R. 2281), House Rep. 105-796, 105th
Cong., 2d Sess., Oct. 8, 1998.
25
 Although the district court recognized that liability for links was

constitutionally suspect, the court's analysis ignored both established indirect

liability doctrine and the need to accommodate free speech concerns. Rather than

requiring proof of harm and a direct relationship between the defendant and an

infringer, the district court imposed liability on anyone who links to circumvention

technology with knowledge and for the purpose of disseminating the technology.

The knowledge and intent requirements in this “heightened standard” fail to

resolve the constitutional problems inherent in imposing liability for links. For

example, any journalist or academic who links to a site where DeCSS is posted as

part of news coverage about the controversy is likely to a) know that DeCSS is

located at that site, b) know that certain motion picture studios consider it illegal

and that the district court has ruled that it is illegal, and c) create the link with the

intent of enabling readers to understand the controversy which will inevitably

result in the dissemination of the program to some degree.

The chilling effect of the district court's ruling has already begun, and has

extended beyond simply linking to DeCSS. Prior to the ruling, The New York

Times, CNN, the Village Voice, CNET and many other news publications all

linked to sites containing DeCSS as part of their coverage of this case. Many of

those organizations have now removed their links. Few news organizations will

find the distinction between linking “for the purpose of disseminating a

technology” and linking for other purposes to be sufficiently clear to be sure the

organization would be safe if it published a link to a program such as DeCSS.

26
Copyright professors Pamela Samuelson of Berkeley and Lydia Pallas Loren at

Lewis and Clark School of Law were deterred from posting links to DeCSS in their

teaching materials for fear of liability. A library science professor at the

University of North Carolina was told to remove a link to DeCSS because the

university feared liability.

Assuming that the Court overcomes other constitutional problems with the

anti-trafficking provision, amici believe that in some narrow circumstances links

may be relevant evidence in an anti-trafficking case. For example, a manufacturer

or offerer of circumvention technology that has been used to infringe a copyright

could link to sites containing the infringing material. While such links would

never create a per se violation, links might be relevant evidence in establishing

vicarious liability – i.e., that the manufacturer had the "the right and ability to

supervise" and a "direct financial interest" in the infringement. But amici

emphasize that the existence of a link alone would never be sufficient proof for

establishing indirect liability. Unlike the district court's test, imposing liability for

trafficking only where the technology is incapable of substantial noninfringing

uses and plaintiffs have met the traditional test for indirect liability provides the

balance necessary under the First Amendment to prevent unnecessary chilling of

protected speech.

Conclusion

In summary, to remedy the constitutional defects in the district court's

opinion and order, amici urge this Court to:

27
 1) interpret Section 1201(a)(2) to require plaintiffs-appellees to prove that

there is no fair use or free speech right to offer DeCSS, that DeCSS was used to

infringe their copyrights, and that there is a sufficient relationship between

defendant-appellant Corley and any infringers;

2) reverse the district court's ruling and remand with instructions to consider

whether Corley may be held liable under the interpretation of Section 1201(a)(2)

outlined in #1 above;

3) in the alternative, should the court hold that the statute does not permit the

interpretation outlined in #1 above, the court should rule that Section 1201(a)(2) is

unconstitutional on its face; and

4) reverse the district court's ruling that Section 1201(a)(2) may be applied

to prohibit mere links to sites containing circumvention technology.

______________________________________
Christopher A. Hansen
Ann Beeson
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
212-549-2500

Pamela Samuelson
Professor of Law
University of California at Berkeley
Boalt Hall
Berkeley, CA 94720
510-642-6775

Peter Jazsi
Professor of Law

28
 Washington College of Law
American University
4801 Massachusetts Ave., N.W.
Washington, D.C. 20016
202-274-4216

Jessica Litman
Professor of Law
Wayne State University
Detroit MI 48202
313-577-3952
Dated: January 26, 2001

29
 CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. Pro. 29(d) and 32(a)(7)(B), the undersigned

certifies that this brief, exclusive of the exempted portions, contains 6,879 words.
The brief has been prepared in proportionally spaced typeface using: Word 97;
Times New Roman, 14 point.

Dated: January 26, 2001 _________________________________

CHRISTOPHER A. HANSEN

30
 CERTIFICATE OF SERVICE
I, Christopher A. Hansen, hereby certify that on this the 26th day of January,
2001, two correct copies of the Brief of Amici Curiae were served via Federal
Express, overnight delivery, upon each of the following parties:

Martin Garbus, Esq.

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, NY 10022
Attorneys for Defendants-Appellants

Cindy A. Cohn, Esq.

ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Attorneys for Defendants-Appellants

Leon P. Gold, Esq.

PROSKAUER ROSE LLP
1585 Broadway
New York, NY 10036-8299
Attorneys for Plaintiffs-Appellees

On said date, the original plus nine (9) copies of said Brief will be delivered
by hand to the Clerk of the Court for filing.

_____________________________
CHRISTOPHER A. HANSEN

31