Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
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Notes and Questions on Reimerdes (Section 1201 issues)

1.  What were the plaintiffs' primary goals in bringing this action?  What relief were they seeking?  Could the defendants in this case have adequately responded to liability in damages?  Could they have repaid the whole movie industry for its losses?

The court here refers to an earlier decision in which it granted a preliminary injunction.  A "preliminary" injunction is one granted on a temporary basis, usually after a hearing, pending a full trial on the merits. Admissible evidence introduced in the preliminary hearing need not be re-introduced at trial, but may be incorporated from the hearing record.  See Fed. R. Civ. P. 65(b).

Hearings on preliminary injunctions can last anywhere from a few minutes to two weeks or more.  In general, would you expect such hearings in DMCA cases to be brief or elaborate?  Why?

2.  The standards for preliminary injunctions and so-called "permanent" injunctions differ.  (A "permanent" injunction is not necessarily perpetual.  The word "permanent" refers to the fact that relief is granted after a full trial.)  When a court grants a preliminary injunction before trial, it is conscious of the risk of making an error before all the facts that will emerge at trial are in.  It therefore seeks to minimize the harm that an erroneous preliminary decision might cause the parties.

The traditional test for minimizing such harm considers four factors: (1) the plaintiff's likelihood of success in proving its case at trial; (2) the possibility of irreparable harm to the plaintiff if the injunction is not granted; (3) the "balance of harms" (whether defendant will be more seriously damaged before trail by an injunction than plaintiff would be by denying one); and (4) the public interest.  See generally Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Property § 13.01[1] (Law Journal Press, 1991) (discussing preliminary injunctions in intellectual property cases). How does each of these factors relate to the court's goal of minimizing interim harm from possible error?

Once all the facts are known at trial, the standard of injunctive relief is much lower.  Permanent injunctions in intellectual property cases are routine. Courts normally grant them when they appear to be a better remedy than damages for future harm.  See id., § 13.01[2].  Should a court adjudicating claims for injunctive relief under the DMCA follow the same rules that apply in intellectual property cases?

3.  Here the court addressees a claim for permanent injunctive relief after a full trial.  Why does it spend so much time discussing the threat of injury that the defendants' behavior poses to the movie industry?  Is it still mentally reviewing its previous decision on preliminary injunctive relief, or is there some other reason?  Do the defendants' First-Amendment arguments, addressed on appeal in Universal City Studios, Inc. v. Corley , provide a possible answer?

4.  Apart from the First-Amendment questions, which were indeed, novel, was this an easy or hard case?  Was it difficult to determine whether the language of the statute prohibited defendants' conduct?  whether Congress intended it to do so?

Defendants argued that CSS did not "effectively" control access because the defendants had been able to hack it.  Is that a serious argument?  Can it be refuted by simple syllogistic logic?  What about the argument that DeCSS was not "technology" within the meaning of the statute?  Was that a serious, substantial argument?  What about the claim that defendants were engaged in excepted "encryption research"?  Should courts treat any argument made by a litigant as serious and substantial simply because the statute is a new one?

5.  Which of the DMCA's two anti-trafficking rules—Section 1201(a)(2) or Section 1201(b)—properly applied to defendants' conduct and why?  Which of the three conditions of liability (paragraphs (A), (B), or (C)) provided the strongest case for the plaintiffs, and why?  What specific evidence in the case suggests that those conditions were satisfied?

What about the defendants' state of mind?  Does any of the three paragraphs (A), (B), and (C) contain language from which an intent requirement could be inferred?  Does any of those paragraphs not contain language from which an intent requirement could be inferred?

Note that disjunctive character of the three conditions (A), (B), and (C).  The plaintiff wins if any one of the three is satisfied (assuming the other conditions for liability are met).  Did defendants have any realistic chance of prevailing on all three conditions under the facts of this case?

6.  One of the most interesting questions raised by the facts of this case was the defendants' use of linking.  In its First-Amendment analysis, which is omitted from this edited version, the district court found linking particularly sensitive because it represents the heart of the Internet's value as a new medium of communication.

But doesn't linking also raise questions under the language of the statute, even before constitutional questions are raised?  Is it clear that someone who provides a link to another site from which circumvention technology can be downloaded necessarily "offer[s] to the public, provide[s], or otherwise traffic[ks] in" that technology within the meaning of the preamble to Section 1201(a)(2) or Section 1201(b)?  If so, is it clear that that someone meets one or more of the conditions in Paragraph (A), (B), or (C)?

If a circumventer accesses the circumvention technology through a link provided by the defendant, that link could be viewed as a "but for" cause of any resulting circumvention, and therefore of the dissemination of the circumvention technology.  Yet does the statute allow the imposition of liability for "but for" causation, or does it require the link that the defendant provides to be the proximate cause of the dissemination, if not the resulting circumvention?  Does it matter how remote the defendant's link may be from the circumvention technology on the linked site?  from any reference to that technology on the linking site?  What if the link is a mistake, caused by typing in the wrong URL (uniform resource locator or Web address)?

Don't courts have to resolve these questions of causation and remoteness before imposing liability under the anti-trafficking rules?  Is this an easy and mechanical process, or does it require sound and discriminating judgment?  Does the Reimerdes court suggest and factors that courts should consider in making these sorts of decisions?
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