ACM's Amicus Brief in "MPAA v. 2600" Case

Amicus Curie Brief in Support of Appellants (Jan. 26, 2001); Universal v. Reimerdes (Jan. 26, 2001)

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

                              Andrew Grosso
                              2121 K Street, N.W.
                              Suite 800
                              Washington, D.C. 20037
                              (202) 261-3593

                              Counsel for Amicus Curie
                              ACM Committee on Law and
                              Computing Technology

                              Eddan Katz
                              Student on the Brief

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

     Amicus is the Committee on Law and Computing Technology of the Association for Computing Machinery ("ACM"). Founded in 1947, the ACM is the world's first educational and scientific computing society. Today, the ACM is an international scientific and educational organizational organization dedicated to advancing the arts, sciences, and applications of information technology. With a world-wide membership of 80,000, the ACM functions as a locus for computing professionals, researchers, and academics in the various fields of Information Technology. The ACM has long advocated against censorship on the Internet. The ACM studies and expresses its opinion on legal issues through its Committee on Computing Law and Technology ("ACM Law").

     The ACM has an acute interest in the issues presented in this case. This is due to the need of its members to openly discuss their research results and communicate their accomplishments in order to advance state of the art developments in the fields of encryption and computer technology. The position of the ACM is that the Digital Millennium Copyright Act ("DMCA") has and will continue to seriously obstruct such discussion and communication, and therefore will impede these developments.

SUMMARY OF THE ARGUMENT

     Discussion pursued for the scientific study of encryption and computer technology is speech. Because copyright "anti-circumvention devices" are computer code, the discussion of these devices necessarily involves the discussion of their code, and thus requires the dissemination of that code.

     The Digital Millennium Copyright Act ("DMCA") prohibits offering such code to the public, and providing or otherwise trafficking in such code. This prohibition bans speech about such devices, impeding scientific analysis of the encryption and computer technology upon which such devices are based. For this reason, the DMCA violates the First Amendment.

     The overbreadth doctrine permits the federal judicial to reach the First Amendment issue in this case. The applicable section of the DMCA should be declared unconstitutional on First Amendment grounds.

ARGUMENT

THE DMCA VIOLATES THE FIRST AMENDMENT AND MUST BE STRUCK DOWN UNDER THE OVERBREADTH DOCTRINE

1. The Statute Unconstitutionally Infringes Free Speech in the Scientific Arena

     The relevant portions of the Digital Millennium Copyright Act ("DMCA") read:

Section 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 protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title or in a work or portion thereof . . . .

 
Section 1201(a)(3):

(A) to "circumvent a technological measure" means to descramble a work, to decrypt an encrypted work, or to otherwise avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner . . . .

     This language prohibits legitimate academic and research communication in state of the art encryption and computer technologies. As such, it violates the First Amendment.

In an earlier era, a device meant to circumvent, or to avoid the circumvention of, copyright protection might well have been limited to a hardware device: for circumvention, perhaps a copying machine or a hidden camera; for anti-circumvention, perhaps a special ink or paper. Today, however, the items used for copyright protection are software algorithms running on computer systems. When given embodiment in computer code and then put into operation, algorithms do indeed have some functions of a machine; however, they retain their elements of speech. See Bernstein v. U.S. Department of Justice, 176 F. 3d 1132 (9th Cir. 1999) (holding that computer code is speech). Specifically, they retain elements of thought which can only be described through symbols and concepts, that is, through speech, whether this speech is in the form of code or a more recognizable language.

Taking this another step further, the analysis and description of such devices (as opposed to the devices themselves) are clearly in the arena of speech: to analyze an encryption algorithm is to analyze a thought. To discuss, communicate, and collaborate on such an algorithm is to engage in speech. Yet, such discussion, communication and collaboration constitutes trafficking in the subject thought, offering it to the public, and generally providing it to third parties. The above analysis is valid regardless of whether the thought to be studied is embodied in a scientific paper written entirely in English, or in a paper describing the thought making use of the language of mathematics, including computer code.

In examining the DMCA, it is apparent that Congress erroneously viewed software and its scientific analysis as identical to the manufacture and mass production of hardware devices. The words and phrases Congress chose to express restricts the circumvention of software copyright protections demonstrates this error: "manufacture, "offer to the public," "provide," "traffic in," "technology," "product," "service," "device," and "component." When applied to a DVD format, or to any form of information in a computer operational format, a "circumvention device" is a nothing more than a thought written in a computer language.

The concern of the ACM is that the DMCA prohibits scientific analysis and discourse on the cutting edge of research and development in encryption technologies, including research and development of copyright protection tools and expertise. This infringes academic thought and freedom of speech, and cannot be permitted.

2. The Overbreadth Doctrine Applies

     The District Court considered the overbreadth doctrine and refused to apply it. The court erred.

     The District Court addresses the overbreadth concern in its opinion, and erroneously concluded that that the requisite facts were not foreseeable which would justify invoking this doctrine in this case. Specifically, the court said:

Factors arguing against the use of the overbreadth doctrine are present here. To begin with, we do not here have a complete view of whether the interests of the absent third parties upon whom defendants rely really are substantial and, in consequence, whether the DMCA as applied here would materially affect their ability to make fair use of plaintiffs' copyrighted works. Id. at 71.

     The District Court's errors are three fold.

     First, it misstates the standard for the application of the overbreadth doctrine.

     Second, it incorrectly limits the extent to which the interests of third parties must be presented to the court before it can consider the overbreadth doctrine.

     Third, such interests are self-evidence and were inexcusably overlooked by the District Court. In support of this assertion, Amicus refers this Court to the material in the Addendum to this Brief: Amy Harmon, Group Says It Beat Music Security but Can't Reveal How, N. Y. TIMES, January 15, 2001, at C2.

     In Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Supreme Court said that "where the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack." Id. at 801 n.l9 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)).

     The United States Court of Appeals for the Second Circuit recently analyzed the overbreadth doctrine. In Lehman v. Board of Elections in the City of New York, No. 99-9015 (2d Cir. Nov. 9, 2000), this Court said:

Under the overbreadth doctrine, the plaintiffs need only "demonstrate a substantial risk that application of the provision will lead to the suppression of speech." National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998); see also Broaderick, 413 U.S. at 612-615 (holding that statutes inhibiting the exercise of First Amendment rights may be invalidated on their face if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep"). Cf. Salerno, 481 U.S. at 745 (noting applicability of overbreadth doctrine to First Amendment claims). When a litigant challenges a statute on its face as overly broad, the prudential limitations against third party standing are relaxed, and the litigant may assert the rights of individuals whose interests might be affected by the statute but who are not before the court. See Joseph H. Munson Co., 467 U.S. at 956-57; Broaderick, 413 U.S. at 612. (Footnotes omitted.)

     Here, the DMCA poses a substantial risk that speech regarding the legitimate study and advancement of encryption and computer technology will be prohibited. The Appellants satisfy the reduced standing requirements under the overbreadth doctrine to assert this First Amendment Challenge to the DMCA.

The District Court erred on this issue, and the DMCA must be declared unconstitutional.

CONCLUSION

     On behalf of the scientific and academic computer technology communities, Amicus ACM Law asks this Court to declare Section 1201(a) of the DMCA unconstitutional and void.

                              _____________________
                              ANDREW GROSSO, ESQ.
                              Chair and Counsel for the ACM Committee for Law and Technology

                              Member of the Bar of this Court

CERTIFICATION OF COMPLIANCE

      This brief has been prepared using twelve point, monospaced typeface, specifically: 12 point, Courier New, WordPerfect 6.0.

                              _____________________
                              ANDREW GROSSO, ESQ.

CERTIFICATE OF SERVICE

     I do hereby certify that two copies of the foregoing have been served this 26th day of January, 2001, by United States Mail on the following:

Leon P. Gold
William M. Hart
Proskauer, Rose, L.L.P.
1585 Broadway
New York, New York 10036

COUNSEL FOR PLAINTIFF-APPELLEES

Martin Garbus
Frankfurt, Garbus Klein & Selz
488 Madison Avenue
New York, New York 10022

COUNSEL FOR DEFENDANT-APPELLANT

Cindy Cohn, Lee Tien, & Robin Gross
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, California 94110

COUNSEL FOR DEFENDANT-APPELLANT

                              _____________________
                              ANDREW GROSSO, ESQ.

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