Under 17 U.S.C.S. § 1201(a)(2) those who traffic in technology that can circumvent a technological measure that effectively controls access to a work protected under Title 17, whereas 17 U.S.C.S. § 1201(b)(1) covers those who traffic in technology that can circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under Title 17. 17 U.S.C.S. §§ 1201(a)(2), (b)(1). In other words, although both subsections prohibit trafficking in a circumvention technology, the focus of 17 U.S.C.S. § 1201(a)(2) is circumvention of technologies designed to prevent access to a work, and the focus of 17 U.S.C.S. § 1201(b)(1) is circumvention of technologies designed to permit access to a work but prevent copying of the work or some other act that infringes a copyright. The statute, 17 U.S.C.S. § 1201(a)(1), differs from both of these anti-trafficking subsections in that it targets the use of a circumvention technology, not the trafficking in such a technology.
In November 1999, defendant Eric C. Corley posted a copy of the decryption computer program "DeCSS" on his web site. DeCSS was designed to circumvent "CSS," the encryption technology that motion picture studios place on DVDs to prevent the unauthorized viewing and copying of motion pictures. Corley also posted on his web site links to other web sites where DeCSS could be found. Eight motion picture studios brought an action against Corley seeking injunctive relief under the Digital Millennium Copyright Act (DMCA). Following a full non-jury trial, the District Court entered a permanent injunction barring Corley from posting DeCSS on his web site or from knowingly linking via a hyperlink to any other web site containing DeCSS. The District Court rejected Corley's constitutional attacks on the statute and the injunction. On appeal, Corley renewed his constitutional challenges, arguing that the DMCA overstepped limits in the Copyright Clause on the duration of copyright protection. Furthermore, Corley argued that the DMCA as applied to his dissemination of DeCSS violated the First Amendment because the computer code was "speech" entitled to full First Amendment protection and the DMCA failed to survive the exacting scrutiny accorded statutes that regulate "speech.” Corley further asserted that the DMCA violated the First Amendment and the Copyright Clause by unduly obstructing the "fair use" of copyrighted materials.
Did the permanent injunction barring a website owner from posting a movie decryption code on his web site violate his freedom of speech?
The appellate court agreed with the district court’s decision, which affirmed the injunction the district court had entered in favor of the movie studios. According to the appellate court, the computer code used in the program was protected speech, but that because the functional aspect of the speech was targeted, it was content neutral and survived intermediate scrutiny. The appellate court averred that the capacity of a decryption program to accomplish unauthorized and unlawful access to materials for which the studios had intellectual property rights had to inform and limit the scope of its First Amendment protection. The appellate court concluded that the program had both a non-speech and speech component, and the posting prohibition in the injunction targeted only the non-speech component.