A Copyfighter’s Musings

[updated 2/26] 321 Studios lost badly.  As SethF suggests, the worst of it was the complete rejection of the constitutional argument based on Eldred. See here for earlier discussion on that argument. 

As Seth said and I agreed then, unless the courts construe the argument broadly, they will be able to fall back on Corley‘s technological-inconvenience-is-not-an-excuse argument, which is precisely what happened here.  The meaning of Eldred as read through MGM v. 321 is that the government may limit fair use (as guaranteed by the Constitution) so long as it advances “significant government interests” and does not unreasonably burden fair use.  Here, the limit was “incidental” because of analog alternatives, and the financial burden was not placed due to the content of the speech.   Judge Illston’s analysis weighed the interests involved with substantial deference to the government.

What’s interesting is that, at first, it sounds like intermediate scrutiny, which is what the Eldred appelants wanted, but it seems very watered down. So it’s better than no First Amendment scrutiny, but only just.

Sigh.  I was hopeful that this would turn out at least a little better, because Judge Illston took an extremely long time (9 months) to render what ended up a rather simple decision.  But, this argument is an uphill battle, and it will likely take something more than a tool primarily used for making back-up copies to make it work.  It’s got to be something more inconvenienced, but also more striking – something like security research, perhaps.  On the constitutional arguments, Kevin makes some other cogent criticisms here.

It also wouldn’t hurt to have a judge who spends less time making conclusory arguments.  The entire opinion is basically citations of Corley and Elcom, but that was somewhat to be expected.  The problem is sections like this:

“Congress enacted the DMCA after evaluating a great deal of information, including testimony from a number of the law professors who filed an amicus brief before this Court. Congress determined that the DMCA was needed to protect copyrights and intellectual property rights; this Court finds that the challenged provisions further important and substantial government interests unrelated to the suppression of free expression, and that the incidental restrictions on First Amendment freedoms are no greater than essential to the furtherance of those interests.”

Before that, Judge Illston mentioned that intermediate scrutiny requires deference, citing Turner I.  But, from what little I know of First Amendment law, it does not mean a complete free pass.  Ward v. Rock Against Racism requires that the regulation “be narrowly tailored to serve a significant governmental interest.”  Narrow tailoring requires only that the interest “would be achieved less effectively” without the regulation.  Even so, that still requires the court to consider alternatives; if a different regulation could achieve comparable results with less impact on speech, then the present regulation is invalid. 

In Turner I and II (which came after Ward, btw), the SC does set forth a very deferential standard. Rather than weighing competing theories of future harms and benefits, simply asked Congress to provide substantial evidence.  At the same time, the Court examined that evidence to make sure it was indeed substantial.  The Court could then assess whether the “burden imposed … is congruent to the benefits it affords.”  Even though the Court said it need not reject the regulation because another regulation would be “marginally less intrusive,” it did consider several alternatives to make sure they were not “substantially broader than necessary.”

Judge Illston doesn’t bother with any analysis on these scores, and that sadly is a pattern throughout this opinion.  She doesn’t even bother to cite Corley here, probably because it makes similarly conclusory arguments regarding narrow tailoring.  (For more discussion of these cases, see the article linked to here).

Illston also failed to shed any light on the difference between access and copy controls, a favorite subject of Ernest’s.  Skylink is the only case to give a refined, if muddled, definition of access controls.

But 321’s fight is far from over.  Apparently, they’re going to release their software without the decryption component (DeCSS or a variant).  Their opponents claim that this isn’t kosher, but I think 321’s actually got a decent case.  They will have to be very careful, but so long as they don’t tell anyone how to make a circumvention device, doesn’t seem like they’ll be trafficking.  If the DMCA does not apply, then Sony does, and that’s a standard they can surely make.

Here’s the silver lining in Illston’s ruling – she seems to have anticipated this in a way that favors 321:

“The DMCA does not prohibit copying of non-CSS encrypted material, so if 321 removed the part of its software that bypasses CSS and marketed only the DVD copying portion, it could freely market its product to customers who use the software to copy non-CSS encrypted DVDs and other public domain material.” (emphasis added)

Though it might also be used by customers who copy CSS encrypted disks, that is irrelevant under Sony.  Copying non-CSS encrypted DVDs and public domain material will likely count as substantial non-infringing uses.

Filed by Derek Slater at 1:24 am under Big Ideas
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