Dept. of Justice Supplemental Brief
in Corley v. Universal Appeal (June 20, 2001)
 [22 pages.]

                                                 UNITED STATES COURT OF APPEALS
                                                                                     FILED
                                                                              MAY 30 2001
                                                             Roseann B. MacKechnie, CLERK
                                                                        SECOND CIRCUIT
                                U.S. Department of Justice
                                United States Attorney
                                Southern District of New
                                York
                                100 Church Street
                                New York. New York 10007
                                May 30, 2001
BY HAND DELIVERY
Hon. Roseann B. MacKechnie
Clerk of Court
United States Court of Appeals
for the Second Circuit
United States Courthouse
40 Foley Square
New York, New York 10007
Re: Universal City Studios, Inc. v. Corley
Dkt. No. 00-9185 (2d Cir.)
Dear Ms. MacKechnie:
This office represents Intervenor United States of America (the "Government") in the
above-referenced appeal. The panel (Newman, Cabranes, C.JJ., Thompson, D.J.) heard
oral argument in this case on May 1, 2001. By Order dated May 8, 2001, the Court
modified its oral instruction, previously issued from the bench, permitting the parties to
submit supplemental briefing. In accordance with the May 8th order, this letter constitutes
the Government's supplemental submission, and we respectfully request that you forward
the enclosed copies and accompanying legislative materials to the members of the panel
for consideration.
A. The Government's Response to Issues Raised By Defendants At Oral
Argument
At oral argument, defendants attacked the premise upon which Congress enacted 17
U.S.C. § 1201 ("§ 1201") as factually unsupported. Having failed to submit any evidence
in the district court regarding alternative measures that would be equally effective though
less restrictive than § 1201, defendants nonetheless also maintained that the Digital
Millennium Copyright Act ("DMCA") was insufficiently tailored. Their claims are

                                 MPAA Supplemental Letter Brief in Corley v. Universal
appeal Charles S. Sims  Proskauer Rose LLP  Member of the Firm  May 30, 2001  BY
HAND  Roseann B. MacKechnie, Clerk of Court United States Court of Appeals for the
Second Circuit 40 Centre Street, Room 1702 New York, New York 10007 Re: Universal
City Studios Inc. v. Corley, No. 00-9185 (2d Cir.)  Dear Ms. MacKechnie:  We represent
the appellees (the "Studios") in the above-captioned matter. We write at the invitation of
the Panel that heard the appeal on May 1 (Newman and Cabranes, C.J., and Thompson,
D.J.) to address certain issues raised at oral argument and others contained in an Order
dated May 8. Please submit this letter brief to the Panel for its consideration.  At oral
argument, appellants ignored defendant Eric Corley's conduct and the facts found at trial,
and attempted to shift the Court's attention from what Corley did (multiplying copies of
DeCSS and offering them to the public in admitted violation of the law) to what a parade
of hypothetical persons (from fifth graders to the parents of autistic children) might
somehow, some day be impeded from doing with DVDs as a result of the DMCA or the
injunction entered against Corley. Nothing in appellants' positions warrants reversing,
vacating, or modifying the judgment entered below. We address first four issues raised at
argument, and then turn to the questions identified in the May 8 Order.  I. CSS Provides
Security Against - and DeCSS Facilitates - Infringing Copying.  Surprisingly, appellants
contended on rebuttal that the CSS encryption technology is concerned solely with access
and has nothing to do with protecting copyright owners from the risks of unauthorized,
uncontrolled copying on the Internet. Judge Kaplan, however, expressly found that
DeCSS, which circumvents the technological protection afforded by CSS, "is a free,
effective and fast means of decrypting plaintiffs' DVDs and copying them to computer
hard drives." (A2627.) The trial testimony was unanimous (from both sides) that DeCSS
performs two functions: it decrypts an encrypted DVD movie file and then copies it to the
user's computer hard drive or other storage device. (Tr. 245:11-248:5, 619:12-18; 821:21-
822:8, 896:25-897:4). Under the CSS license, authorized DVD players must be designed
only to decrypt, unscramble and play back the DVD movie content while preventing
users from storing or transmitting that decrypted content and from making and
transmitting decrypted digital copies of the copyrighted content. (Tr. 409:20-24; 505:4-
6). The trial testimony focused extensively on how DeCSS circumvents CSS -- a
technological measure that provides security against making infringing copies -- and
thereby facilitates infringement, and Judge Kaplan found that "the application of DeCSS
to copy and distribute motion pictures . . . threatens" the Studios with substantial harm.
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 315 (S.D.N.Y. 2000).  II.
Appellants' Reliance On The Audio Home Recording Act of 1992 ("AHRA") As A
Purportedly "Less Restrictive Alternative" Than The DMCA Is Misplaced.  Appellants'
argument that the Audio Home Recording Act compels a finding that the trafficking
proscriptions are not narrowly tailored misunderstands the controlling legal standard and
ignores the fact that the AHRA cannot serve as a model because it has no application
whatever to computers or to computer-based copying.  The "least restrictive alternative"
test that appellants invoke applies only to content-based laws. Under intermediate
scrutiny, the requirement of narrow tailoring is satisfied "`so long as the . . . regulation
promotes a substantial government interest that would be achieved less effectively absent
the regulation.'" Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994)

                                EFF Supplemental Letter Brief in Corley v. Universal
appeal LETTER BRIEF BY ORDER OF THE COURT May 30, 2001 Hon. Jose
Cabranes Hon. Jon Newman Hon. Alvin Thompson United States Court of Appeals for
the Second Circuit 40 Foley Square New York, NY 10007  Re: Universal & United
States of America v. Corley Case No. 00-9185  Pursuant to the Court's invitation, 2600
Magazine responds to the questions asked by the Court in its Order of May 8, 2001 and to
two issues that arose during the oral argument of this case on May 1, 2001.  A. Questions
in the May 8, 2001 Order. 1. Are the anti-trafficking provisions of the Digital Millennium
Copyright Act content-neutral? See 111 F. Supp. 2d 294, 328-29 (S.D.N.Y. 2000). No.
As applied here to computer code, the anti-trafficking provisions (specifically
§1201(a)(2) and (b)) are content-based in that they specifically target the publication of,
and linking to, scientific expression based on the particular topic addressed by that
expression -Ñ namely, techniques for circumventing CSS. The fact that the expression
here was conveyed in a professional language, computer code, does not change the
content-based nature of the provisions. The restriction at issue here is no different from a
regulation prohibiting engineers from using blueprints, as opposed to English prose, to
explain how to build a photocopier, without applying the same prohibition to discussion
of other kinds of machines.  But even if §1201(a)(2) and (b) could be construed as
content neutral, they would still need to meet the stringent requirements of Turner
Broadcasting System, Inc. v. Federal Comm. Commission, 512 U.S. 622, 663
(1994)("Turner I"), standards they cannot meet as described infra at 13-15 and 17-20.
Moreover, even if the statute could be construed as content neutral, the District Court's
injunction here should not be. The injunction targets only speech Ð the publication of and
linking to DeCSS . It specifically bars "posting on any Internet web site" or any link to
another web site "for the purpose of disseminating DeCSS." Universal, 111 F. Supp. 2d at
346-347 (amended final judgment), and therefore should be receive strictest scrutiny.
And even if the injunction could be construed as content neutral, the Supreme Court
recently reminded us that the application of such relief to a member of the media requires
scrutiny "of the highest order." Bartnicki v. Vopper 532 U.S. ___ (May 21, 2001) (slip
op. at 12) (citing Smith J. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979)).[1] In
Bartnicki, the Supreme Court applied this high level of scrutiny to a content-neutral law
forbidding the "disclosure" of a tape of an illegally intercepted cellphone conversation
when the information contained was a matter of public concern and the defendants did
not participate in the illegal interception. The tape concerned a teachers' union
negotiation and was broadcast by media. Here, where § 1201 has been applied to forbid
media publication of the information contained in a computer program that is a matter of
public concern, the First Amendment requirements emphasized in Bartnicki are squarely
raised.  2. Does DeCSS have both speech and non-speech elements? No. DeCSS itself
has no non-speech elements. It is a set of instructions written in a specific professional
language that expresses ideas to those who can read that language. Computer
programmers and scientists communicate using programming languages because these
languages are an unambiguous mode of expression. Universal, 111 F.Supp.2d at 345, n.
225 (testimony of Dr.Touretzky). These facts and the legal cases supporting them are
further described in the Amicus Brief of Abelson, et al. at 13-17.  That a person might use
a computer program to do something does not by itself add "nonspeech" elements to the
text.[2] Blueprints and instructions for a photocopier, recipes, books about fixing cars,

EFF Motion to File Exhibits
for Supl. Brief, in Corley v. Universal Appeal
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
 -------------------------------------------------------x
UNIVERSAL CITY STUDIOS, INC.,        :   00-9185
et al.                               : DECLARATION OF
                                     :    EDWARD
        Plaintiff - Appellees        :   HERNSTADT
                                     :
    and                              :
                                     :
UNITED STATES OF AMERICA,            :
                                     :
        Intervenor                   :
                                     :
    v.                               :
                                     :
SHAWN C. REIMERDES, ROMAN KAZAN,     :
et al.                               :
                                     :
        Defendants.                  :
-------------------------------------------------------x
I, EDWARD HERNSTADT, hereby declare under penalty of perjury that the following is
true and correct.
1. I am a member of the law firm of Frankfurt, Garbus, Kernit, Klein & Selz, P.C. and
have personal knowledge of the matters set forth herein. I am one of the attorneys for
Defendants/Appellants Eric Corley and 2600 Magazine.
2. During oral argument of this matter on May 1, 2001 and in the list of questions
provided to the parties on May 8, 2001, this Court raised several questions of the parties
and invited answers in the form of a supplemental letter brief due May 30, 2001.
 3. In preparing the answers to those questions, it became apparent to Defendants that
some information publicly available on the Internet could assist the Court in
consideration the issues raised. We have cited that information using the relevant URLs
in the letter brief
4. However, in order to further assist the Court, Defendants have printed out the
information contained on the relevant web pages and hereby seek to file them herein as
Exhibits to the Letter Brief.
5. In addition, again for the Court's convenience, we also provide a copy of the slip
opinion of Supreme Court's recent decision in Bartnicki v. Vopper, 532 U.S. ___ (May
21, 2001), which we cite in our letter brief.
7. Accordingly, Defendants respectfully request that they be granted leave to file the
attached Exhibits in Support of Defendants' Supplemental Brief.
     ____________________________

 Order [to Defendants] to Show Cause, in MPAA v. Reimerdes, Corley and Kazan
(Order to Show Cause [Re: Plaintiffs' Application for a Preliminary Injunction]; NY, Jan.
14, 2000)
 3939/53185-005 NYLIB1/1144378 v1 01/14/00 04:14 PM (16245)
 Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile
Jon A. Baumgarten (pro hac vice admission to be applied for)
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT  SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.;  PARAMOUNT PICTURES CORPORATION;
METRO-GOLDWYN-MAYER STUDIOS INC.;  TRISTAR PICTURES, INC.;
COLUMBIA  PICTURES INDUSTRIES, INC.; TIME WARNER ENTERTAINMENT
CO., L.P.; DISNEY  ENTERPRISES, INC.; AND TWENTIETH  CENTURY FOX
FILM CORPORATION,  Plaintiffs,  v.  SHAWN C. REIMERDES; ERIC CORLEY
A/K/A  "EMMANUEL GOLDSTEIN"; AND ROMAN  KAZAN,  Defendants.
___________________________________________                  )  ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
        00 Civ. 277 (LAK)(RLE)       ORDER TO SHOW CAUSE
Upon the annexed Complaint of plaintiffs Universal City Studios, Inc.; Paramount
Pictures Corporation; Metro-Goldwyn-Mayer Studios Inc.; TriStar Pictures, Inc.;
Columbia Pictures Industries, Inc.; Time Warner Entertainment Co., L.P.; Disney
Enterprises, Inc.; and Twentieth Century Fox Film Corporation (collectively "Plaintiffs"),
the Declaration of Fritz Attaway, sworn to January 13, 2000, the Declaration of Michael
Ostroff, sworn to January 13, 2000, the Declaration of Bruce E. Boyden, Esq., sworn to
January 13, 2000, and Plaintiffs' Memorandum of Law in Support of their Application for
a Preliminary Injunction, and good cause being shown therefore;
IT IS HEREBY ORDERED that defendants, Shawn C. Reimerdes, Eric Corley a/k/a
Emmanuel Goldstein, and Roman Kazan (collectively "Defendants"), show cause before
this Court, at the United States District Court for the Southern District of New York,
Room 12D, 500 Pearl Street, New York, New York on January 20, 2000, at 11:00 am, or
as soon thereafter as counsel can be heard, why an order should not be entered pursuant
to Rule 65 of the Federal Rules of Civil Procedure preliminarily enjoining Defendants,

Order Granting Prelim. Injunction against Defendants, , in MPAA v. Reimerdes, Corley
and Kazan
(NY; Jan. 20, 2000)
 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------x
UNIVERSAL CITY STUDIOS, INC., et al.,
Plaintiffs,
-against- 00 Civ. 0277 (LAK)
SHAWN C. REIMERDES, ERIC CORLEY
a/k/a/ "EMMANUEL GOLDSTEIN," and
ROMAN KAZAN,
Defendants.
--------------------------------------------------------x
PRELIMINARY INJUNCTION
LEWIS KAPLAN, District Judge.
Plaintiffs having moved for a preliminary injunction and the court having considered
papers in support of and in opposition to the motion, heard argument of counsel, made
preliminary findings of fact and conclusions of law on the record, and indicated that it
subsequently will file a fuller opinion, it is hereby
ORDERED, as follows:
1. Plaintiffs' motion is granted.
2. Defendants Shawn C. Reimerdes, Eric Corley a/k/a/ "Emmanuel Goldstein" and
Roman Kazan, their officers, agents, servants, employees and attorneys and all persons in
active concert or participation with them who receive actual notice of this order by
personal service or otherwise be and they hereby are enjoined and restrained, pending the
hearing and final determination of this action, from
(a) posting on any Internet web site, or in any otehr way manufacturing, importing or
offering to the public, providing, or otherwise trafficking in DeCSS, and
(b) posting on any Internet web site, or in any other way manufacturing, importing or
offering to the public, providing, or otherwise trafficking in any technology, product,
service, device, component, or part thereof, that:
(i) is primarily designed or produced for the purpose of cirumventing, or circumvention
[sic] the protection afforded by, CSS, or any other technological measure adopted by
plaintiffs that effectively controls access to plaintiffs' copyrighted works or effectively
protects the plaintiffs' rights to control whether an end user can reproduce, manufacture,
adapt, publicly perform and/or distributed unauthorized copies of their copyrighted works
or portions thereof;
(ii) has only limited commercially significant purposes or use other than to circumvent, or
to circumvent the protection afforded by, CSS, or any other technological measure
adopted by plaintiffs that effectively controls access to plaintiffs' copyrighted works or
effectively protects the plaintiffs' rights to control whether an end user can reproduce,
manufacture, adapt, publicly perform and/or distributed unauthorized copies of their
copyrighted works or portions thereof; or

 Order Granting Prelim. Injunction against Defendants, , in MPAA v. Reimerdes, Corley
and Kazan
(NY; Jan. 20, 2000)
 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------x
UNIVERSAL CITY STUDIOS, INC., et al.,
Plaintiffs,
-against- 00 Civ. 0277 (LAK)
SHAWN C. REIMERDES, ERIC CORLEY
a/k/a/ "EMMANUEL GOLDSTEIN," and
ROMAN KAZAN,
Defendants.
--------------------------------------------------------x
PRELIMINARY INJUNCTION
LEWIS KAPLAN, District Judge.
Plaintiffs having moved for a preliminary injunction and the court having considered
papers in support of and in opposition to the motion, heard argument of counsel, made
preliminary findings of fact and conclusions of law on the record, and indicated that it
subsequently will file a fuller opinion, it is hereby
ORDERED, as follows:
1. Plaintiffs' motion is granted.
2. Defendants Shawn C. Reimerdes, Eric Corley a/k/a/ "Emmanuel Goldstein" and
Roman Kazan, their officers, agents, servants, employees and attorneys and all persons in
active concert or participation with them who receive actual notice of this order by
personal service or otherwise be and they hereby are enjoined and restrained, pending the
hearing and final determination of this action, from
(a) posting on any Internet web site, or in any otehr way manufacturing, importing or
offering to the public, providing, or otherwise trafficking in DeCSS, and
(b) posting on any Internet web site, or in any other way manufacturing, importing or
offering to the public, providing, or otherwise trafficking in any technology, product,
service, device, component, or part thereof, that:
(i) is primarily designed or produced for the purpose of cirumventing, or circumvention
[sic] the protection afforded by, CSS, or any other technological measure adopted by
plaintiffs that effectively controls access to plaintiffs' copyrighted works or effectively
protects the plaintiffs' rights to control whether an end user can reproduce, manufacture,
adapt, publicly perform and/or distributed unauthorized copies of their copyrighted works
or portions thereof;
(ii) has only limited commercially significant purposes or use other than to circumvent, or
to circumvent the protection afforded by, CSS, or any other technological measure
adopted by plaintiffs that effectively controls access to plaintiffs' copyrighted works or
effectively protects the plaintiffs' rights to control whether an end user can reproduce,
manufacture, adapt, publicly perform and/or distributed unauthorized copies of their
copyrighted works or portions thereof; or