Advanced Copyright Law on the Internet

others to acquire it.”^1059 Accordingly, the court enjoined the defendants from providing three
types of links:

Links “to sites that automatically commence the process of downloading DeCSS upon a

user being transferred by defendants’ hyperlinks.” The court ruled that this was the

functional equivalent of the defendants transferring the DeCSS code themselves.^1060

Links “to web pages that display nothing more than the DeCSS code or present the user

only with the choice of commencing a download of DeCSS and no other content. The

only distinction is that the entity extending to the user the option of downloading the

program is the transferee site rather than defendants, a distinction without a

difference.”^1061

Links “to pages that offer a good deal of content other than DeCSS but that offer a

hyperlink for downloading, or transferring to a page for downloading, DeCSS,” based on

the given facts, in which the defendants had intentionally used and touted the links to

“mirror” sites to help others find copies of DeCSS, after encouraging sites to post DeCSS

and checking to ensure that the mirror sites in fact were posting DeCSS or something that

looked like it, and proclaimed on their own site that DeCSS could be had by clicking on

the links.^1062

On appeal, the defendants renewed their attack on the constitutionality of the DMCA. In
Universal City Studios Inc. v. Corley,^1063 the Second Circuit rejected such challenges and upheld
the constitutionality of the DMCA anti-circumvention provisions. The court first rejected the
defendants’ argument that Section 1201(c)(1) should be read narrowly to avoid ambiguity that
could give rise to constitutional infirmities. The defendants contended that Section 1201(c)(1)
could and should be read to allow the circumvention of encryption technology when the
protected material would be put to fair uses. The court disagreed that Section 1201(c)(1)
permitted such a reading. “Instead, it clearly and simply clarifies that the DMCA targets the
circumvention of digital walls guarding copyrighted material (and trafficking in circumvention
tools), but does not concern itself with the use of those materials after circumvention has
occurred.”^1064 The court held that, in any event, the defendants did not claim to be making fair
use of any copyrighted materials, and nothing in the injunction prohibited them from making
such fair use.^1065 “Fair use has never been held to be a guarantee of access to copyrighted

(^1059) Reimerdes, 111 F. Supp. 2d at 325.
(^1060) Id.
(^1061) Id.
(^1062) Id.
(^1063) 273 F.3d 429 (2d Cir. 2001).
(^1064) Id. at 443 (emphasis in original).
(^1065) Id. at 459.