The First Amendment is Alive and Well
By Neil L. Shapiro Bio
When I was a young media lawyer, the United States Supreme Court decided Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and took a slight step backward in its evolving recognition of the First Amendment’s protection against liability for defamatory speech. Media representatives and counsel, losing sight of the fact that only a decade earlier the same Court had removed defamation from the realm of strict liability and erected substantial hurdles in the path of certain libel plaintiffs, howled that the decision represented “the end of the First Amendment as we know it.” I thought the reaction overblown; although an idealistic young believer in freedom of expression, even I knew that virtually no freedom is absolute, but that each results from a balance of competing interests.
Five years later, when the Court held in Herbert v. Lando, 441 U.S. 153 (1979), that those defamation plaintiffs who were required to prove a publisher’s state of mind could actually conduct discovery into the publisher’s state of mind, the same shrill cries that the decision portended “the end of the First Amendment as we know it” reverberated through the publishing industry and media bar. Others, myself included, again thought the decision rational and the reaction odd. Regardless of which reaction -- doomsday or “ho-hum” -- was appropriate, it is worth noting that the First Amendment apparently survived.
Two reasonably recent decisions of federal district courts have enjoined one website operator from linking to specific other websites, and although the outcry is not quite as loud, the same strident prophecies of the end of the First Amendment are once again being heard. Careful consideration, however, of what the courts in those cases actually did, and the context in which they did it, establishes that their decisions align themselves perfectly with established First Amendment and intellectual property jurisprudence. Somehow, I think the First Amendment once again will survive.
As a preliminary matter, and as I have argued in two previous columns in the Daily Journal and successfully in one piece of litigation, basic linking on the World Wide Web unquestionably is protected by First Amendment principles. After all, hypertext links constitute nothing more than the provision of publicly-available factual information -- the URL or electronic address of a specific web page -- together with the ability to reach that address with the single click of an electronic mouse rather than by inputting 60 or 70 characters on a computer keyboard. As a general principle, enjoining the dissemination of truthful information would constitute “an impermissible restraint on First Amendment rights.” Organization For a Better Austin v. Keefe, 402 U.S. 415, 415 (1971). Even post-dissemination punishment is constitutionally-suspect, and absent overriding social concerns cannot be imposed. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). Linking, then, is conceptually no different than any other dissemination of truthful information, and any attempt to restrain it “comes to [the] Court with a ‘heavy presumption’ against its constitutional validity.” Organization For a Better Austin, at 419, quoting from Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 181 (1968), and Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
One of the relatively few areas in which prior restraints on the dissemination of truthful information have been permitted is at the intersection of First Amendment expression and copyright protection. After all, even before the Constitution was amended by the First Amendment, Article I, Section 8 granted to Congress the right “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” American jurisprudence has always recognized the propriety of injunctive relief against expression when that injunctive relief in turn was necessary to protect legitimate copyright interests. See, e.g., Stevens v. Gladding, 58 U.S. (17 How.) 447 (1854). It is at the intersection between the First Amendment right to link and the right of the copyright owner to protect his interests in which linking, like speech, has been proscribed. Not only does such proscription of linking not do violence to First Amendment protection, it in fact accords due deference to, and clearly follows, established precedent.
In Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F.Supp.2nd 1290 (D. Utah 1999), the defendants posted on their own website material which clearly infringed the plaintiff’s copyright. After the Court, utilizing traditional copyright analysis, enjoined such infringement, the defendants placed a notice on their website that the infringing material was available on-line, and provided the addresses of three websites containing the material the defendants themselves were ordered to remove from their website. Defendants also posted e-mails on their website encouraging others to visit the three websites, to make copies of the infringing material available thereon, and to send such copies to others.
Based on its understanding of defendants' post-preliminary injunction conduct, the Court had little difficulty concluding that the defendants induced, caused, or materially contributed to the infringement by others of plaintiff’s copyright interests. The Court noted that anyone who downloads the infringing material is guilty of copyright infringement -- non-consensual copying of copyrighted material constitutes infringement -- and further concluded that by exhorting others to do precisely that, defendants induced and contributed to copyright infringement. After noting that “the First Amendment does not give defendants the right to infringe on legally recognized rights under the copyright law” and after concluding that the defendants' clear intention was to induce such infringement, the Court had little difficulty determining that an injunction against the maintenance by defendants of links on their website to other sites which posted the infringing material was in the public’s interest in protecting the rights of copyright holders, and did no violence to the First Amendment.
In University City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, amended 111 F.Supp.2d 346 (SDNY August 17, 2000), the Southern District of New York essentially reached a similar decision, but in a somewhat different factual context than that before the Court in Intellectual Reserve. The plaintiffs in that case, eight major United States motion picture studios, distribute digital versatile disks (“DVDs”) protected from copying by an encryption system called CSS. Those distributors license CSS technology to a wide array of others to produce devices to decrypt and play, but not to copy, the copyright-protected films encoded on the DVDs.
In September of 1999, Jon Johansen, a 15-year old Norwegian youth, reverse-engineered a licensed DVD player, discovered the CSS encryption algorithm and keys, and used them to create DeCSS, a program capable of decrypting, and therefore allowing the playback and copying of, DVDs. Not long after, defendants began offering DeCSS on their website. Litigation followed, and in reasonably short order a preliminary injunction was entered preventing defendants from posting DeCSS on their website. Their response, not unlike the response of the defendants in Intellectual Reserve, Inc., was to comply, but to couple their compliance “with what they termed ‘electronic civil disobedience’ -- increasing their efforts to link their website to a large number of others that continue to make DeCSS available.” Plaintiff Motion Picture Studios continued their action, seeking an injunction against such linking, and following a lengthy bench trial the Court granted the requested relief.
The Court began its analyses with the Digital Millennium Copyright Act, legislation that flowed both from the World Intellectual Property Organization Copyright Treaty and from extensive debates and consideration by Congress of amendments to the Copyright Act. Among other provisions, the DMCA contains two anticircumvention provisions. 17 U.S.C. 1201(a)(1) "governs 'the act of circumventing a technical protection measure put in place by a copyright owner to control access to a copyrighted work,' an act described by Congress as 'the electronic equivalent of breaking into a locked room in order to obtain a copy of a book.'" The second, ¶1201(a)(2), “'supplements the prohibition against the acts of circumvention in ¶ (a)(1) with prohibitions on creating and making available certain technologies ... developed or advertised to defeat technological protections against unauthorized access to a work.'” That section specifically provides that “no person shall ... offer to the public, provide, or otherwise traffic in any technology ... that -- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [the copyright act] ... .”
The plaintiffs argued that defendants' linking to websites that allow users to download DeCSS constituted offering, providing, or otherwise trafficking in prohibited technology. Defendants argued, among many other things, that provision of their software by such linking was protected by the First Amendment; “they argue that computer code is protected speech and that the DMCA’s prohibition of dissemination of DeCSS therefore violates defendants’ First Amendment rights.” The Court, however, disagreed with defendants.
The Court first accepted the notion that computer code is in part expressive, and that its dissemination is therefore protected at least to some extent by the First Amendment. While recognizing that “content based restrictions on speech are permissible only if they serve compelling state interests by the least restrictive means available,” the Court also noted that “content neutral restrictions, in contrast, are measured against a less exacting standard.” “Because restrictions of this type are not motivated by a desire to limit the message, they will be upheld if they serve a substantial government interest and restrict First Amendment freedoms no more than necessary.” The DeCSS computer code, it held, fell into the conduct-neutral category; computer code has expressive elements but it also carries an element of functionality in that it tells a computer how to operate, and it is that functionality, the “non-expressive” element, that plaintiffs sought to restrict.
The Court believed that “any impact on the dissemination of the programmers’ ideas is purely incidental to the overriding concerns of promoting the distribution of copyrighted works in digital form while at the same time protecting those works from piracy and other violations of the exclusive rights of copyright holders.” The incidental restraint on the programmers’ expression was, in the eyes of the Court, no broader than necessary to accomplish Congress’ goal of preventing infringement and promoting the protection of copyrighted works. The Court held that the DMCA, therefore, is “a content neutral regulation and furtherance of important governmental interests that does not unduly restrict expressive activities.”
As one might expect, defendants argued vehemently that injunctive relief against any dissemination of DeCSS, particularly by linking to other websites, is barred by the prior restraint doctrine. In response, the Court reviewed “classic prior restraint cases,” such as those attempting to enjoin a newspaper from publishing the Pentagon Papers or certain details about a forthcoming murder case, or those attempting to restrain expression of political opinion. In each of those cases, the government sought to suppress speech at the very heart of First Amendment concerns – “expression about public issues of the sort that is indispensable to self-government.” The Court clearly rejected the suggestion that distribution of DeCSS should be treated precisely as would the expression of political or social opinion. "The presence of some expressive content in the code should not obscure the fact of its predominant functional character -- it is first and foremost a means of causing a machine with which it is used to perform particular tasks.” Here, those particular tasks constitute circumvention of protections applied to copyrighted matter.
Realizing perhaps that it was authoring the first substantial judicial determination of the proper balance to be struck at the intersection of constitutionally-protected linking and copyright protection, the Court considered carefully the “possible chilling effect of a rule permitting liability for or injunctions against Internet hyperlinks.” In so doing, it looked to the law of defamation for guidance. “The threat of defamation suits creates the same risks of self-censorship, the same chilling effect, for the traditional press as a prohibition of linking to sites containing circumvention technology poses for website operators. Just as the potential chilling effect of defamation suits has not utterly immunized the press from all actions for defamation, however, the potential chilling effect of DMCA liability cannot utterly immunize website operators from all actions for disseminating circumvention technology. And the solution to the problem is the same: the adoption of a standard of culpability sufficiently high to immunize the activity, whether it is publishing a newspaper or linking, except in cases in which the conduct in question has little or no redeeming constitutional value.”
Drawing on the distinction in defamation law between the very high standard which must be met by a public official or public figure plaintiff and the modest standard which must be met by a private figure, the Court fashioned a constitutionally-based rule for the imposition of injunctive relief or monetary liability on a website operator for linking to another site which offers information violative of the DMCA. “Accordingly, there may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the DMCA, absent clear and convincing evidence that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.” Finding that standard met in the case before it, the Court entered the requested permanent injunction.
The relatively superficial analysis in Intellectual Reserve, Inc. and the careful, indeed scholarly, analysis in Universal City Studios, both led essentially to the same point; indirect infringement of copyright can be enjoined in substantially the same fashion as can be direct infringement. Each got to that point by using a different analytic framework, but each effectively reached the same result. The two cases also share another critical commonality, which although not expressed as such by either court, no doubt influenced them, and will influence other courts addressing similar issues.
In both cases, defendants began by engaging in conduct clearly violative of copyright law, traditional copyright law in Intellectual Reserve, Inc., and provisions of the DMCA in University City Studios. In each case, the Court enjoined the infringement, only to see the defendant react by trying to accomplish the same infringement by indirect means. In each case, when the infringer was called to answer for such indirect infringement, it wrapped itself in the flag of the First Amendment, and sought, by arguing an extreme interpretation of jurisprudential history, to immunize its misconduct from judicial reach. Although not saying so in such words, in each case the Court added a dollop of moral imperative to traditional legal analysis to reach what is, both viscerally and legally, the right result. Extremist First Amendment arguments that reach the wrong result, morally and legally, will no more be accepted in resolving the issues of cyberspace than they have been in resolving the issues of the traditional world. The line between protected speech and actionable conduct is always difficult to draw, and on occasion it gets moved a couple of millimeters in one direction or the other by the pulls of precedent, morality and practicality. Such tiny movements are, however, what keep the First Amendment organic in nature, and which in turn allow it to remain alive and well.
© 2000 Neil L. Shapiro
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