Thank You For Submiting Feedback!
There may be no injunction against, nor liability for, linking to a site containing circumvention technology, the offering of which is unlawful under the Digital Millennium Copyright Act, 17 U.S.C.S. § 1201 et seq., 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.
Plaintiffs, eight major United States motion picture studios, distributed many of their copyrighted motion pictures for home use on digital versatile disks (DVDs), which contain copies of the motion pictures in digital form. They protected those motion pictures from copying by using an encryption system called CSS. Defendants, computer hackers, devised a computer program called DeCSS that circumvented the CSS protection system and allowed CSS-protected motion pictures to be copied and played on devices that lacked the licensed decryption technology. Plaintiffs filed suit under the Digital Millennium Copyright Act (DMCA), 17 U.S.C.S. § 1201 et seq., seeking to enjoin defendants from posting DeCSS and to prevent them from electronically "linking" their site to others that post DeCSS. Defendants argued that their actions did not violate the DMCA and, in any case, that the DMCA, as applied to computer programs, or codes, violated the U.S. Const. amend. I.
Did the DMCA, as applied to computer programs, or codes, violate the U.S. Const. amend. I?
The court concluded that the DMCA as applied to posting and linking here did not contravene U.S. Const. amend. I. In this case, plaintiffs have established by clear and convincing evidence that these defendants linked to sites posting DeCSS, knowing that it was a circumvention device. Indeed, they initially touted it as a way to get free movies, and they later maintained the links to promote the dissemination of the program in an effort to defeat effective judicial relief. They now know that dissemination of DeCSS violates the DMCA. An anti-linking injunction on these facts does no violence to the First Amendment. Nor should it chill the activities of web site operators dealing with different materials, as they may be held liable only on a compelling showing of deliberate evasion of the statute. Thus, plaintiffs were entitled to appropriate injunctive and declaratory relief.