material in order to copy it by the fair user’s preferred technique of in the format of the
original.”^1066
The court ruled that computer programs are not exempted from the category of First
Amendment speech merely because their instructions require use of a computer. Rather, the
ability to convey information renders the instructions of a computer program in source code form
“speech” for purposes of the First Amendment.^1067 However, the court held that the “realities of
what code is and what its normal functions are require a First Amendment analysis that treats
code as combining nonspeech and speech elements, i.e., functional and expressive elements.”^1068
Accordingly, the scope of First Amendment protection for the DeCSS code at issue was
limited.^1069
With this background, the court turned to a First Amendment analysis of the specific
prohibitions of the injunction. With respect to the prohibition against posting of the DeCSS
code, the court held that the prohibition was content neutral and was directed only toward the
nonspeech component of DeCSS – “[t]he DMCA and the posting prohibition are applied to
DeCSS solely because of its capacity to instruct a computer to decrypt CSS. That functional
capability is not speech within the meaning of the First Amendment.”^1070 Therefore, the content-
neutral posting prohibition, which had only an incidental effect on a speech component, would
pass muster if it served a substantial governmental interest unrelated to the suppression of free
expression, which the court found that it did.^1071
With respect to the prohibition against linking to other web sites posting DeCSS, the
court again noted that a link has both a speech and a nonspeech component. “It conveys
information, the Internet address of the linked web page, and has the functional capacity to bring
the content of the linked web page to the user’s computer screen.”^1072 And again, the court ruled
that the prohibition on linking was content neutral. “The linking prohibition applies whether or
not the hyperlink contains any information, comprehensible to a human being, as to the Internet
address of the web page being accessed. The linking prohibition is justified solely by the
functional capability of the hyperlink.”^1073 The court rejected the defendants’ argument that the
prohibition burdened substantially more speech than necessary to further the government’s
legitimate interest because it did not require an intent to cause harm by the linking, and that
(^1066) Id.
(^1067) Id. at 447.
(^1068) Id. at 451.
(^1069) Id. at 453.
(^1070) Id. at 454.
(^1071) Id. at 454-55. The court noted that it had considered the opinion of the California Court of Appeal in the
Bunner case, discussed in subsection e. below and that to “the extent that DVD Copy Control disagrees with our
First Amendment analysis, we decline to follow it.” Id. at 455 n.29. As noted in subsection e. below, the
Supreme Court of California subsequently reversed the California Court of Appeal decision.
(^1072) Id. at 456.
(^1073) Id.