18 September 2000
Source: Public Records, Southern District of New York

Judge Lewis Kaplan's orginal order on August 17, 2000:

http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08117.PDF (superceded)

Judge Kaplan revised the order on August 30, 2000:

http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08592.PDF

Another revision was made on September 8, 2000:

http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-08996.PDF

The latest revision referred to attached revised pages 6, 58-62, which were not provided with the online version of the order, and are presented below.

ORDER

LEWIS A. KAPLAN, District Judge.

The Court’s opinion, dated August 17, 2000, is amended by substituting the attached corrected pages 6 and 58-62 for the corresponding original pages.

SO ORDERED.

Dated: September 6, 2000

Copies mailed 9/7/00
Chambers of Judge Kaplan
           RAL

MICROFILM
SEP 11 2000 9⁰⁰am

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or 1 (on)."¹² A group of eight bits is called a byte and represents a character -- a letter or an integer.¹³ A kilobyte ("K") is 1024 bytes, a megabyte ("MB") 1024 kilobytes, and a gigabyte ("GB") 1024 megabytes.¹⁴

Some highly skilled human beings can reduce data and instructions to strings of 1's and 0's and thus program computers to perform complex tasks by inputting commands and data in that form.¹⁵ But it would be inconvenient, inefficient and, for most people, probably impossible to do so. In consequence, computer science has developed programming languages. These languages, like other written languages, employ symbols and syntax to convey meaning. The text of programs written in these languages is referred to as source code.¹⁶ And whether directly or through the medium of another program," the sets of instructions written in programming languages-the source code-ultimately are translated into machine "readable" strings of 1's and 0's, known in the computer

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12 SCIENCE DESK REFERENCE, at 501.

13 Id.

14 Id.

15 See Tr. (Felten) at 759-60.

16 The Court's findings with respect to the definitions of source code and object code are taken from the trial testimony of Robert Schumann, Tr. at 258, and Drs. Edward Felten, Tr. at 738- 39, 757-63, David S. Touretzky, Tr. at 1065-91, and Andrew Appel, Tr. at 1096, and the deposition testimony of Dr. Harold Abelson, Ex. AZO at 34-37, 45-49. See also Ex. BBE.

17 Frequently, programs written in such languages must be transformed or translated into machine readable form by other programs known as compilers.

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effectively absent the regulation."²⁰²

The anti-trafficking provision of the DMCA furthers an important governmental interest-the protection of copyrighted works stored on digital media from the vastly expanded risk of piracy in this electronic age. The substantiality of that interest is evident both from the fact that the Constitution specifically empowers Congress to provide for copyright protection²⁰³ and from the significance to our economy of trade in copyrighted materials.²⁰⁴ Indeed, the Supreme Court has made clear that copyright protection itself is "the engine of free expression."²⁰⁵ That substantial interest, moreover, is unrelated to the suppression of particular views expressed in means of gaining access to protected copyrighted works. Nor is the incidental restraint on protected expression -- the
prohibition of trafficking in means that would circumvent controls limiting access to unprotected materials or to copyrighted materials for noninfringing purposes -- broader than is necessary to accomplish Congress' goals of preventing infringement and promoting the availability of content in digital form.²⁰⁶

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202 Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).

203 U.S. CONST., art. 1, § 8 (Copyright Clause).

204 COMMERCE COMM. REP. 94-95; SENATE REP. 21-22,143.

205 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).

206 It is conceivable that technology eventually will provide means of limiting access only to copyrighted materials and only for uses that would infringe the rights of the copyright holder. See, e.g., Travis, 15 BERKELEY TECH. L.J. at 835-36; Mark Gimbel, Note, Some Thoughts on the Implications of Trusted Systems for Intellectual Propcrty Law, 50 Stan. L. Rev. 1671, 1875-78 (1998); Mark Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing, 12 BERKELEY TECH. L.J. 137, 138- 40 (1997). We have not yet come so far.

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This analysis finds substantial support in the principal case relied upon by defendants, Junger v. Daley.²⁰⁷ The plaintiff in that case challenged on First Amendment grounds an Export Administration regulation that barred the export of computer encryption software, arguing that the software was expressive and that the regulation therefore was unconstitutional. The Sixth Circuit acknowledged the expressive nature of computer code, holding that it therefore was within the scope of the First Amendment. But it recognized also that computer code is functional as well and said that "[t]he functional capabilities of source code, particularly those of encryption source code, should be considered when analyzing the governmental interest in regulating the exchange of this form of speech.²⁰⁸ Indeed, it went on to indicate that the pertinent standard of review was that established in United States v. O'Brien,²⁰⁹ the seminal speech-versus-conduct decision. Thus, rather than holding the challenged regulation unconstitutional on the theory that the expressive aspect of source code immunized it from regulation, the court remanded the case to the district court to determine whether the O'Brien standard was met in view of the functional aspect of code.²¹⁰

Notwithstanding its adoption by the Sixth Circuit, the focus on functionality in order to determine the level of scrutiny is not an inevitable consequence of the speech-conduct distinction. Conduct has immediate effects on the environment. Computer code, on the other hand, no matter how functional, causes a computer to perform the intended operations only if someone uses the code

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207 209 F.3d 481 (6th Cir. 2000)

208 Id.

209 391 U.S. at 377.

210 209 F.3d at 485.

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to do so. Hence, one commentator, in a thoughtful article, has maintained that functionality is really "a proxy for effects or harm" and that its adoption as a determinant of the level of scrutiny slides over questions of causation that intervene between the dissemination of a computer program and any harm caused by its use.²¹¹

The characterization of functionality as a proxy for the consequences of use is accurate. But the assumption that the chain of causation is too attenuated to justify the use of functionality to determine the level of scrutiny, at least in this context, is not.

Society increasingly depends upon technological means of controlling access to digital files and systems, whether they are military computers, bank records, academic records, copyrighted works or something else entirely. There are far too many who, given any opportunity, will bypass those security measures, some for the sheer joy of doing it, some for innocuous reasons, and others for more malevolent purposes. Given the virtually instantaneous and worldwide dissemination wlle!y available via the Internet, the only rational assumption is that once a computer program capable of bypassing such an access control system is disseminated, it will be used. And that is not all.

There was a time when copyright infringement could be dealt with quite adequately by focusing on the infringing act. If someone wished to make and sell high quality but unauthorized copies of a copyrighted book, for example, the infringer needed a printing press. The copyright holder, once aware of the appearance of infringing copies, usually was able to trace the copies up

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211 See Lee Tien, Publishing Software as a Speech Act, 15 BERKELEY TECH. L. J. 629, 694-701 (2000). Professor Tien's analysis itself has been criticized. Robert Post, Encryption Source Code and the First Aniendment, 15 BERKELEY TECH. L. J. 715 (2000).

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the chain of distribution, find and prosecute the infringer, and shut off the infringement at the source.

In principle, the digital world is very different. Once a decryption program like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of decrypting and perfectly copying plaintiffs' copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every recipient to do the same. They likewise arc capable of transmitting perfect copies of the decrypted DVD. Tile process potentially is exponential rather than linear. Indeed, the difference is illustrated by comparison of two epidemiological models describing the spread of different kinds of disease.²¹² In a common source epidemic, as where members of a population contract a non-contagious disease from a poisoned well, the disease spreads only by exposure to the common source. If one eliminates the source, or closes the contaminated well, the epidemic is stopped. In a propagated outbreak epidemic, on the other hand, the disease spreads from person to person. Hence, finding the initial source of infection accomplishes little, as the disease continues to spread even if the initial source is eliminated.²¹³ For obvious reasons, then, a propagated outbreak epidemic, all other things being equal, can be far more difficult to control.

This disease metaphor is helpful here. The book infringement hypothetical is analogous to a common source outbreak epidemic. Shut down the printing press (the poisoned well)

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212 This perhaps is not as surprising as first might appear. Computer "viruses" are other programs, an understanding of which is aided by the biological analogy evident in their name. See, e.g., Jeffrey 0. Kephart, Gregory B. Sorkin, David M. Chess and Steve R. White, Fighting Computer Viruses, SCIENTIFIC AMERICAN, (visited Aug. 16, 2000) <http://www.sciam.com/1197issue/1197kephart.html>.

213 DAVID E. LILIENFELD & PAUL D. STOLLEY, FOUNDATIONS OF EPIDEMIOLOGY 38-41 & Fig. 3-1 (3d ed. 1994); JOHN P. Fox, CARRIE E. HALL & LILA R. ELVEBACK, EPIDEMIOLOGY -- MAN AND DISEASE 246-47 (1970).

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and one ends the infringement (the disease outbreak). The spread of means of circumventing access to copyrighted works in digital form, however, is analogous to a propagated outbreak epidemic. Finding the original source of infection (e.g., the author of DeCSS or the first person to misuse it) accomplishes nothing, as the disease (infringement made possible by DeCSS and tile resulting availability of decrypted DVDs) may continue to spread from one person who gains access to tile circumvention program or decrypted DVD to another. And each is "infected," i.e., each is as capable of making perfect copies of the digital file containing the copyrighted work as the author of the program or the first person to use it for improper purposes. The disease metaphor breaks down principally at tile final point. Individuals infected with a real disease become sick, usually are driven by obvious self-interest to seek medical attention, and are cured of the disease if medical science is capable of doing so. Individuals infected with the "disease" of capability of circumventing measures controlling access to copyrighted works in digital form, however, do not suffer from having that ability. They cannot be relied upon to identify themselves to those seeking to control the "disease." And their self-interest will motivate some to misuse the capability, a misuse that, in practical terms, often will be untraceable.²¹⁴

These considerations drastically alter consideration of the causal link between dissemination of computer programs such as this and their illicit use. Causation in the law ultimately

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214 Of course, not everyone who obtains DeCSS or some other decryption program necessarily will use it to engage in copyright infringement, just as not everyone who is exposed to a contagious disease contracts it. But that is immaterial. The critical point is that tile combination of (a) the manner in which the ability to infringe is spread and (b) tile lack of any practical means of controlling infringement at the point at which it occurs once the capability is broadly disseminated render control of infringement by controlling availability of the means of infringement far more critical in this context.

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