The relevant portions of the Digital Millennium Copyright Act ( DMCA") read: Section 1201(a)(2):

         No person shall manufacture, import, offer to the public, provide, or
         otherwise traffic in any technology, product, service, device,
         component, or part thereof, that . . . 
         
         (A) is primarily designed or produced for the purpose of
         circumventing protection afforded by a technological measure
         that effectively protects a right of a copyright owner under this
         title in a work or a portion thereof; 
         
         (B) has only limited commercially significant purpose or use
         other than to circumvent protection afforded by a technological
         measure that effectively protects a right of a copyright owner
         under this title or in a work or portion thereof . . . . 

         
         (A) to  circumvent a technological measure" means to
         descramble a work, to decrypt an encrypted work, or to
         otherwise avoid, bypass, remove, deactivate, or impair a
         technological measure, without the authority of the copyright
         owner . . . .

In an earlier era, a device meant to circumvent, or to avoid the circumvention of, copyright protection might well have been limited to a hardware device: for circumvention, perhaps a copying machine or a hidden camera; for anti-circumvention, perhaps a special ink or paper. Today, however, the items used for copyright protection are software algorithms running on computer systems. When given embodiment in computer code and then put into operation, algorithms do indeed have some functions of a machine; however, they retain their elements of speech. See Bernstein v. U.S. Department of Justice, 176 F. 3d 1132 (9th Cir. 1999) (holding that computer code is speech). Specifically, they retain elements of thought which can only be described through symbols and concepts, that is, through speech, whether this speech is in the form of code or a more recognizable language.

Taking this another step further, the analysis and description of such devices (as opposed to the devices themselves) are clearly in the arena of speech: to analyze an encryption algorithm is to analyze a thought. To discuss, communicate, and collaborate on such an algorithm is to engage in speech. Yet, such discussion, communication and collaboration constitutes trafficking in the subject thought, offering it to the public, and generally providing it to third parties. The above analysis is valid regardless of whether the thought to be studied is embodied in a scientific paper written entirely in English, or in a paper describing the thought making use of the language of mathematics, including computer code.

In examining the DMCA, it is apparent that Congress erroneously viewed software and its scientific analysis as identical to the manufacture and mass production of hardware devices. The words and phrases Congress chose to express restricts the circumvention of software copyright protections demonstrates this error: manufacture, "offer to the public, "provide, "traffic in, "technology, "product, "service, "device, and "component. When applied to a DVD format, or to any form of information in a computer operational format, a "circumvention device is a nothing more than a thought written in a computer language.

The concern of the ACM is that the DMCA prohibits scientific analysis and discourse on the cutting edge of research and development in encryption technologies, including research and development of copyright protection tools and expertise. This infringes academic thought and freedom of speech, and cannot be permitted.

The District Court considered the overbreadth doctrine and refused to apply it. The court erred.

The District Court addresses the overbreadth concern in its opinion, and erroneously concluded that that the requisite facts were not foreseeable which would justify invoking this doctrine in this case. Specifically, the court said:

         
         Factors arguing against the use of the overbreadth doctrine are present here.  To begin
with, we do not here have a complete view of whether the interests of the absent third parties
upon whom defendants rely really are substantial and, in consequence, whether the DMCA as
applied here would materially affect their ability to make fair use of plaintiffs' copyrighted
works. Id. at 71. 

Third, such interests are self-evidence and were inexcusably overlooked by the District Court. In support of this assertion, Amicus refers this Court to the material in the Addendum to this Brief: Amy Harmon, Group Says It Beat Music Security but Can't Reveal How, N. Y. TIMES, January 15, 2001, at C2.

In Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Supreme Court said that where the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack." Id. at 801 n.l9 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)).

The United States Court of Appeals for the Second Circuit recently analyzed the overbreadth doctrine. In Lehman v. Board of Elections in the City of New York, No. 99-9015 (2d Cir. Nov. 9, 2000), this Court said: Under the overbreadth doctrine, the plaintiffs need only demonstrate a substantial risk that application of the provision will lead to the suppression of speech." National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998); see also Broaderick, 413 U.S. at 612615 (holding that statutes inhibiting the exercise of First Amendment rights may be invalidated on their face if the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep"). Cf. Salerno, 481 U.S. at 745 (noting applicability of overbreadth doctrine to First Amendment claims). When a litigant challenges a statute on its face as overly broad, the prudential limitations against third party standing are relaxed, and the litigant may assert the rights of individuals whose interests might be affected by the statute but who are not before the court. See Joseph H. Munson Co., 467 U.S. at 95657; Broaderick, 413 U.S. at 612. (Footnotes omitted.)

Here, the DMCA poses a substantial risk that speech regarding the legitimate study and advancement of encryption and computer technology will be prohibited. The Appellants satisfy the reduced standing requirements under the overbreadth doctrine to assert this First Amendment Challenge to the DMCA.

The District Court erred on this issue, and the DMCA must be declared unconstitutional.