## Facts

- Motion picture studios distributed DVDs protected by the Content Scramble System (CSS), an encryption-based access-control technology.
- DeCSS is software that decrypts CSS, enabling access to and copying of CSS-protected DVD content.
- Eric Corley and 2600 Enterprises, Inc. published DeCSS and provided hyperlinks to other websites hosting DeCSS.
- The studios alleged that publishing DeCSS and linking to it constituted “trafficking” in circumvention technology prohibited by 17 U.S.C. § 1201(a)(2).
- The district court entered a preliminary injunction and, after trial, a permanent injunction barring defendants from posting DeCSS and from knowingly linking to other sites that provided DeCSS.
- Defendants appealed, raising First Amendment, fair-use, and injunction-scope objections; the United States intervened to defend the statute’s constitutionality.

## Issues

1. Whether 17 U.S.C. § 1201(a)(2), as applied to posting DeCSS, violates the First Amendment because computer code has expressive content.
2. Whether § 1201(a)(2) is properly treated as a content-based restriction on speech or a content-neutral regulation of functional circumvention conduct with incidental effects on speech.
3. Whether enforcing § 1201(a)(2) impermissibly burdens or eliminates fair use by restricting circumvention needed to make lawful uses of DVDs.
4. Whether an injunction prohibiting “knowing” hyperlinks to DeCSS-hosting sites is an unconstitutional restraint on speech or overbroad.

## Decision

- The Second Circuit affirmed the permanent injunction.
- The court accepted that computer code can have First Amendment protection, but held that code’s functional capacity may be regulated when it operates as a tool for unlawful circumvention.
- The court treated § 1201(a)(2) as a content-neutral regulation aimed at preventing dissemination of circumvention tools, not suppressing viewpoints or discussion about encryption.
- Applying intermediate-scrutiny principles, the court held the statute furthered a substantial governmental interest in deterring widespread digital piracy and was sufficiently tailored.
- The court upheld the anti-linking portion of the injunction as applied to knowing links intended to facilitate users’ acquisition of DeCSS, while noting defendants remained free to discuss and criticize encryption and the statute.
- The court rejected the argument that § 1201(a)(2) is unconstitutional because it interferes with fair use, reasoning that fair use does not guarantee access to a protected work by a preferred technological method or format.

## Legal Principles

- Computer code may be expressive for First Amendment purposes, but it also can be regulated for its functional effects when distributed as a circumvention device.
- The DMCA’s anti-trafficking rule in 17 U.S.C. § 1201(a)(2) targets provision of circumvention tools and may be analyzed as content-neutral regulation with incidental burdens on expression.
- Under intermediate scrutiny, the government’s interest in preventing large-scale digital piracy supports restrictions on distributing technology primarily designed or marketed for circumvention.
- Fair use is a defense to infringement and does not create a general right to bypass technological access controls; restrictions on circumvention can be valid even if they make some lawful uses harder to accomplish.
- Hyperlinks can be regulated through injunction when provided with knowledge and intent to facilitate access to unlawful circumvention technology, as opposed to mere commentary or neutral reference.

## Conclusion

The court upheld an injunction enforcing DMCA § 1201(a)(2) against publishing and knowingly linking to DeCSS, holding the statute constitutionally regulates dissemination of functional circumvention tools without foreclosing discussion of encryption or preserving a categorical fair-use right to defeat access controls.


Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001)