In the

______________________________

Universal City studios, Inc., et al., Plaintiffs/Appellees,

v.

ERIC CORLEY, a/k/a EMMANUEL GOLDSTEIN AND 2600 ENTERPRISES, INC., Defendants/Appellants

SHAWN C. REIMERDES, ROMAN KAZAN, Defendants.

______________________________

On Appeal from the United States District Court

for the Southern District of New York

Attorneys for Amici Curiae

In accordance with FRAP 26.1, amici state that none of the organizations participating as amici, except for Reed Elsevier, Inc., has any parent companies nor do any publicly held companies own ten percent or more of their stock. Reed Elsevier, Inc., is a private company, the shares of which are controlled by Reed International, PLC, which is traded on the London stock exchange, and Elsevier NV, which is traded on the Amsterdam exchange.

Amici are a broad coalition of organizations that represent the authors, composers, creators, producers, and distributors of music, film, television, literature, photographic art, computer software, and interactive video games. Although diverse in their creative pursuits, amici are united by a single interest: their industries’ survival depends on both the promotion of free expression and the protection of intellectual property rights in the artistic works created, produced, and distributed by their members.

Amicus the Recording Industry Association of America ("RIAA") is a trade association representing more than 300 recording companies, including BMG Entertainment, EMI Recorded Music North America, Sony Music Entertainment Inc., Warner Music Group, and Universal Music Group. Members of the RIAA create, produce, and/or distribute approximately 90 percent of all legitimate sound recordings in the United States and own the copyrights in those works. One of the RIAA’s principal objectives is to support and promote the creative, artistic, free speech, and financial interests of recording artists and the RIAA’s member companies.

Amicus the American Federation of Musicians of the United States and Canada ("AFM") is an international labor organization representing over 110,000 professional musicians in the United States and Canada. Musicians represented by the AFM record albums, movie soundtracks, television and radio programming and commercials.

Amicus the American Federation of Television and Radio Artists ("AFTRA") is a national labor union representing over 80,000 performers and newspersons who are employed in the news, entertainment, advertising, and sound recording industries.

Amicus the American Film Marketing Association ("AFMA") is a trade association representing over 150 independent producers and distributors of motion pictures and television programming as well as twenty-seven affiliated financial institutions that provide funding for independent production. AFMA members include: Chase Manhattan Bank, The Lewis Horwitz Organization, a Division of Southern Pacific Bank, Miramax International, NBC Enterprises, New Concorde Pictures, New Line Cinema, RKO Pictures, Saban Pictures International, The Kushner-Locke Company, Union Bank of California, Viacom Pictures/Showtime Networks, and Worldwide Entertainment.

Amicus the American Society of Composers, Authors and Publishers ("ASCAP") is an unincorporated voluntary membership association of 100,000 composers, lyricists, and music publishers. Amicus Broadcast Music, Inc. ("BMI") represents approximately 200,000 songwriters, composers, and music publishers. On behalf of ASCAP members and BMI affiliated composers and publishers, as well as hundreds of thousands of writers and publishers of foreign performing rights societies, ASCAP and BMI license the right of non-dramatic public performance of the millions of copyrighted musical compositions in their repertories.

Amicus the American Society of Media Photographers ("ASMP") is the largest organization in the world representing professional photographers who make photographs for publication in the various media. ASMP has approximately 6,000 members, most of whom are freelance photographers, who have been producing some of this country’s best photography for publishers, advertising agencies and corporate clients for more than half a century. ASMP estimates that there are over 100,000 freelance photographers with interests similar to those of its members in the United States. Under the Copyright Act of 1976, freelance photographers are the presumptive owners of the copyrights to the images they create, and most earn their livings by licensing the use and reuse of their photographs.

Amicus the Association of American Publishers ("AAP") is the national trade association of the U.S. book publishing industry. Representing an industry that depends on the exercise of First Amendment rights, AAP has been a leader in the battle to protect free speech. AAP’s members also vigorously support strong intellectual property rights protection. As digital media, including ebooks, become increasingly important ways to distribute published content, the publishing industry views effective encryption as an absolutely essential tool for protecting creative rights.

Amicus the Business Software Alliance ("BSA") serves as the voice of the world’s leading software developers before governments and with consumers in the international marketplace. Its members represent the fastest-growing industry in the world. BSA educates computer users on software copyrights, advocates public policy that fosters innovation and expands trade opportunities, and fights software piracy. BSA members create approximately 90% of the world office-productivity software.

Amicus the Directors Guild of America, Inc. ("DGA") is a non-profit corporation that serves as the duly recognized labor organization and exclusive representative for the purposes of collective bargaining of, inter alia, directors, assistant directors, and unit production managers of theatrical and television motion pictures.

Amicus the Graphic Artists Guild, UAW Local 3030, is a New York not-for-profit corporation that represents graphic designers, illustrators, and other creative professionals in the graphic arts. The Guild’s mission is to protect and promote the economic interests of its members. It works to improve conditions for all creators of graphic art and to raise ethical and financial standards throughout the graphics industry.

Amicus the Interactive Digital Software Association ("IDSA") is the trade association dedicated to serving the business and public affairs needs of companies that publish video games for game consoles, personal computers, handheld devices, and the Internet. IDSA members collectively accounted for more than ninety percent of the $6.02 billion in entertainment software sales in the United States in 2000, and billions more in export sales of American-made entertainment software.

Amicus National Association of Theatre Owners ("NATO") is the trade association for the motion picture theatre industry. It represents more than 600 members in the United States in addition to international members. NATO’s membership includes the largest cinema chains in the world and hundreds of smaller, independent theatre owners as well.

Amicus National Cable Television Association, Inc., ("NCTA") is the principal trade association of the cable television industry in the United States. Its members include owners and operators of cable television systems serving over 90 percent of the nation’s cable television households, over 200 cable television program networks, as well as cable equipment suppliers, and others interested in or affiliated with the cable television industry.

Amicus National Collegiate Athletic Association ("NCAA") is a voluntary, unincorporated association of approximately 1,200 colleges, universities, athletics conferences, and related organizations devoted to the regulation and promotion of intercollegiate athletics for 300,000 male and female student-athletes. As hundreds of NCAA athletics events are broadcast annually on network television, cable and satellite systems, the NCAA and its members are committed to ensuring that appropriate copyright protection is maintained in the new digital age.

Amicus National Football League and National Football League Properties, Inc. ("NFL") is an unincorporated association of thirty-two (32) Member Clubs, each of which owns and operates a professional football team. The NFL, as the producer and coordinator of the collective product of the NFL championship football, exclusively owns the copyrights in the broadcasts of, inter alia, all NFL games.

Amicus National Hockey League ("NHL") is an unincorporated association of thirty (30) Member Teams in the United States and Canada, each of which owns and operates a professional hockey team. The NHL engages in a wide array of commercial endeavors, including the local, national, and international licensing of its copyrighted game telecasts and other programming.

Amicus National Music Publishers’ Association ("NMPA") is the principal trade association representing the interests of music publishers in the United States. The more than 800 music publisher members of NMPA, along with their subsidiaries and affiliates, own or administer the majority of U.S. copyrighted musical works. For over eight decades, NMPA has served as the leading voice of the American music publishing industry in Congress and in the courts.

Amicus the Office of the Commissioner of Baseball represents the thirty clubs engaged in the professional sport of Major League Baseball. The clubs own copyrights in the broadcasts of more than 2000 Major League Baseball games played each year, and they are responsible for licensing a variety of traditional and new media rights to present those telecasts.

Amicus the Producers Guild of America ("PGA") is a non-profit organization that has been in existence since 1950. It represents the interests of a substantial number of individual producers in the motion picture and television industries. Members of the PGA initiate, coordinate, supervise, and control, either on their own behalf (entrepreneur producers) or on behalf of an employer (employee producers), all aspects of the motion picture and/or television production process—creative, financial, technological, and administrative—throughout all phases from inception to completion, including coordination, supervision, and control of all other talents and crafts, subject to the provisions of their collective bargaining agreements and personal services contracts.

Amicus Professional Photographers of America ("PPA"), the world’s largest photographic trade association, represents photographers and photographic artists from dozens of specialty areas including portrait, wedding, commercial, advertising, and art. The professional photographers represented by the PPA have been the primary caretakers of world events and family histories for the last 150 years, and have shared their creative works with the public secure in the knowledge that their rights in those works would be protected.

Amicus Reed Elsevier, Inc. is a leading publisher of various types of copyrighted works for the business and academic communities, including scientific journals, law-related materials, reference books and textbooks, and magazines. Reed Elsevier has made substantial investments in equipment and materials to ensure safe, secure, and efficient delivery of copyrighted works over the Internet and other electronic networks.

Amicus Satellite Broadcasting and Communications Association ("SBCA") is the national trade association that represents all the segments of the satellite industry that deliver video programming and broadband services to consumers. It is made up of DBS providers and satellite broadband companies; the major video programmers; and satellite equipment manufacturers and dealers.

Amicus Screen Actors Guild, Inc. ("SAG") is the collective bargaining representative for over 96,000 professional actors and performing artists, including dancers, singers, and stunt performers, in the theatrical and television motion picture industry. The ability of SAG-represented performers to realize the compensation to which they are entitled by virtue of their performances is inextricably tied to the protection of intellectual property rights and the prevention of unauthorized copying of the motion pictures in which these performers render services.

Amicus Software & Information Industry Association ("SIIA") is the leading trade association committed to promoting and protecting the interests of the software and information industries. SIIA represents over 1,000 member companies, including well-known market leaders to hundreds of smaller companies involved in developing and marketing software and electronic content for business, education, consumers, the Internet, and entertainment uses. SIIA’s Content Division is comprised of more than 100 large and small companies that publish and distribute information or provide technology and services that enable the marketing and delivery of information products and services. This division includes the Digital Rights Management Working Group, which focuses upon the legal, social, and technical solutions that facilitate online publishing and distribution.

Amicus Writers Guild of America, west, Inc. ("WGA") is a labor organization representing approximately 8,500 professional authors of stories and screenplays for theatrical films and television programs, radio, the Internet, and other new media technologies. The WGA also represents news writers for radio and television. WGA writers create intellectual property throughout the United States, and in several foreign countries under the terms of contracts negotiated by the WGA.

Amici work to support and protect the important First Amendment and copyright interests of their members in a variety of ways. With regard to the issues raised in this appeal, amici are committed to protecting the copyrights, trademarks, and trade secrets of their members and work to combat piracy of their legally protected works, which deprives members of the creative industry of the income that the Constitution has deemed to be the just reward for their efforts. Amici operate comprehensive anti-piracy programs, work to strengthen copyright protection through legislative activity, assist in the investigation and prosecution of piracy, pursue enforcement actions against illegal copying and distribution, and work to develop and strengthen anti-piracy security measures.

All parties have consented to amici filing this brief.

The protections offered by the Digital Millennium Copyright Act ("DMCA") are critical to safeguarding amici’s creative works from state-of-the-art digital piracy. Amici share the view of appellees, the district court, and Congress that the ease and ubiquity of digital copying warrants the sort of ex ante protection enacted in the DMCA, and specifically the provisions in section 1201(a)(2), which, as applied in this case, preclude the dissemination of DeCSS. The authors, artists, individuals and companies represented by amici rely upon technological security measures to guard against piracy of their legally protected works in digital format. Specifically, the Content Scramble System ("CSS") protects motion pictures and other works recorded in the DVD format. The DMCA represents a carefully calibrated effort by Congress, after significant study and analysis, to balance a variety of interests in the brave new world of cyberspace, in a way that would best facilitate the creation and distribution of speech and expression in the digital age.

Appellants and their supporting amici embrace an opposite and wholly untenable view of the law. They do not dispute that the DeCSS computer code functions as a master key to unlock encrypted DVDs and allow unauthorized persons to copy their content. Rather, they assert that the First Amendment provides a safe harbor for those who want to pass that key around, because the DeCSS software itself, in addition to serving as a tool, also conveys protected "expression" to those who know how to read it. Appellants and their supporting amici also assert that the DMCA precludes "fair use" of DVDs by imposing legal barriers against those who wish to make perfect digital copies of DVD-formatted films.

Appellants turn the notion of First Amendment protection on its head. The DMCA was enacted to protect First Amendment rights – specifically those of amici in their creative works. The Act poses no impediment at all for those who wish to express their opposition to the encryption of copyrighted works, the enactment of prophylactic copyright protection rules, or even the idea of copyright protection generally. What the DMCA does do is forbid trafficking in a cybernetic burglary tool whose primary purpose is to destroy digital protection of copyrighted material and to facilitate piracy of that material. Appellants and their amici also misapprehend the fair use doctrine of copyright, construing it as a right of unfettered digital access to copyrighted works, rather than a privilege to make limited reasonable use of such works for legitimate purposes. These arguments were properly rejected below, and amici respectfully submit they should be rejected here.

In their other challenge to the injunction, appellants contend that the district court’s application of the DMCA "unconstitutionally eliminates fair use" by preventing the copying of works distributed on DVDs. Among other things, appellants and their amici assume that the privilege of fair use encompasses a "right" of unfettered access, and also a "right" not just to copy, but to make perfect and complete digital copies. Like their "expressive speech" challenge to the injunction, appellants’ fair use argument seriously misapprehends the controlling law and virtually ignores the First Amendment interests the DMCA protects and promotes.

Central to the concept of fair use is the notion that the law will imply a limited right to use a copyrighted work only where a "reasonable copyright owner . . . [would] have consented to the use." Harper & Row, 471 U.S. at 550 (quotation omitted). Courts have consistently interpreted the fair use doctrine as permitting individuals who had obtained access to protected works to make limited use of those works. Courts have never interpreted the doctrine, however, as providing would-be fair-users with a right of access to protected works. As the Supreme Court has noted, "nothing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright. In fact, the Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work." Stewart v. Abend, 495 U.S. 207, 228-29 (1990). Similarly, in Harper & Row, the Supreme Court recognized that traditionally the fact that an author had not published her work greatly diminished someone else’s opportunity to make fair use of it. 471 U.S. at 550-52.

Content owners have long exercised this prerogative to choose when and how they provide access to their works, and intellectual property laws have consistently enforced and protected their choices. The law will enforce a movie theatre’s right to charge for admission, regardless of whether an individual wishes to see the movie for the purposes of scholarship, news reporting, or artistic criticism. The doctrine of fair use does not require the theatre to provide her with free admission or to provide her with a copy of the film in a format suited to her tastes. Similarly, the doctrine neither requires studios to provide would-be critics with free access to the films that it releases in the DVD format, nor to provide critics with DVDs that may be duplicated and manipulated in perfect digital form.

It is hyperbolic in the extreme to assert that reasonable, Congressionally-authorized access controls over works in digital form "eliminate fair use." Fair use of motion pictures, for example, has been occurring long before the advent of digital distribution and will continue long after. Students, professors, and critics remain free to quote or describe portions of a DVD-formatted work, and parodists remain free to lampoon it. Further, the Act exempts individuals engaged in reverse engineering or encryption research from liability for circumventing access devices under certain circumstances. 17 U.S.C. § 1201(f), (g).

By contrast, it is plain that dissemination of DeCSS would devastate the market for motion pictures. Purveyors of the DeCSS code cannot distinguish between the student who seeks to splice a portion of Steven Spielberg’s Amistad into a multi-media report on slavery and copyright pirates who seek to distribute perfect digital copies of the film around the globe. As the district court concluded, "dissemination [of DeCSS] itself carries very substantial risk[s] of imminent harm because the . . . means of circumventing access controls to copyrighted works threatens to produce virtually unstoppable infringement of copyright." Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 332 (S.D.N.Y. 2000). See also A&M Records v. Napster, supra, 2001 WL 115033 *10 (owners of copyrighted recordings "necessarily [suffer] harm[]" by "[h]aving digital downloads available for free on the Napster system"). Any further dissemination of DeCSS, even to facilitate fair use, risks its widespread use for illicit purposes and unabated piracy of copyrighted works. This in turn threatens to destroy the legitimate global marketplace for these creative works. Rampant piracy would be a powerful disincentive to releasing works on DVDs and in any other state-of-the-art digital format to the detriment of the entire creative community, including writers, actors, and other talent who share in the revenue generated by new technologies.

The DMCA provides a measured response to a pernicious problem, giving force of law to artists’ efforts to limit, through encryption technology, the unauthorized access to their works. This distinction comports both with the courts’ traditional understanding of the fair use privilege and with Congress’ findings regarding the unique threat posed by digital piracy. As such, this Court should refuse appellants’ invitation to recast fair use as a right of access.

Rather than undermining First Amendment interests, the DMCA in fact promotes free speech with ex ante protections for those who create and disseminate expression in the most advanced technological form. The DMCA imposes no restrictions on criticism or other expressive speech directed at the scope of copyright protection, CSS encryption, Congress, the courts, or the plaintiffs. Nor is there any legitimate complaint that protected encrypted DVDs will "eliminate" fair use of works distributed in that format. The decision of the district court and the injunction entered below should be affirmed.

The undersigned attorney of record for the amici hereby certifies that the foregoing brief complies with FRAP 29(d). The total number of words in the foregoing brief is 6,932.

Dated: Washington, D.C.

February 27, 2001

Respectfully submitted,

WILLIAMS & CONNOLLY LLP

David E. Kendall

Paul B. Gaffney

725 Twelfth Street, N.W.

Washington, D.C. 20005

(202)434-5000

By:

David M. Proper

National Football League and National Football League Properties

280 Park Avenue

New York, NY 10167

(212) 450-2545

Attorney for the National Football

League and National Football League

Properties, Inc.