security flaw or vulnerability, with the authorization of the owner or operator,” because the
record did not establish that DeCSS has anything to do with testing computers, computer
systems, or computer networks, and the defendants had not sought authorization for their
activities.^1053
Fourth, the defendants claimed that they were engaged in a fair use under Section 107 of
the copyright statute. The court categorically rejected this defense, noting that the defendants
were not being sued for copyright infringement, but rather for offering to the public technology
primarily designed to circumvent technological measures that control access to copyrighted
works.^1054 The court held that fair use is not a defense to Section 1201(a)(2) of the DMCA: “If
Congress had meant the fair use defense to apply to such actions, it would have said so. Indeed,
as the legislative history demonstrates, the decision not to make fair use a defense to a claim
under Section 1201(a) was quite deliberate.”^1055 The court noted that Congress had provided a
vehicle, in the form of rulemaking by the Register of Copyrights, by which particular classes of
copyrighted works could be exempted from the prohibitions if noninfringing uses of those
classes of works would be affected adversely by Section 1201(a)(1).^1056 The court also rejected
the defendants’ assertion that, because DeCSS could be used for noninfringing purposes, its
distribution should be permitted under Sony Corp. v. Universal City Studios, Inc.^1057 The court
elected to follow the holding in the RealNetworks case that a piece of technology might have a
substantial noninfringing use, and therefore be immune from attack under Sony, yet nonetheless
be subject to suppression under Section 1201.^1058
Finally, in one of the most novel aspects of the opinion, the court addressed the issue
whether the mere linking by the defendants to other Web sites on which DeCSS could be
obtained should be deemed to be offering to the public or providing or otherwise trafficking in
DeCSS within the prohibitions of Section 1201(a)(2). The court, noting that the dictionary
definitions of the words “offer,” “provide,” and “traffic” are broad, ruled that “the anti-
trafficking provision of the DMCA is implicated where one presents, holds out or makes a
circumvention technology or device available, knowing its nature, for the purpose of allowing
(^1053) Id. at 321.
(^1054) Id. at 322.
(^1055) Id.
(^1056) Id. at 323 The court, in a very lengthy analysis, also rejected various First Amendment challenges to the
constitutionality of the anti-circumvention provisions of the DMCA. See id. at 325-341.
(^1057) 464 U.S. 417 (1984).
(^1058) Reimerdes, 111 F. Supp. 2d at 323. In the preliminary injunction proceeding, one of the defendants asserted a
defense under Section 512(c) of the DMCA, discussed below, which limits liability of “service providers” for
certain acts of infringement committed through systems or networks operated by them. The court rejected this
defense on the ground that Section 512(c) provides protection only from liability for copyright infringement,
and not for violations of the anti-circumvention provisions of Section 1201(a)(2). The court also ruled that the
defendant had offered no proof that he was a “service provider” within the meaning of Section 512(c). 82 F.
Supp. 2d at 217.