"In this case of first impression, plaintiffs argue for an
interpretation of the DMCA that would give copyright owners the
power to eliminate fair use of their works, by giving them direct
authority over all physical means usable to display or copy those
works. This Court's decision will have far reaching implications -
not just for publishers like Mr. Corley and 2600.com - but on the
development of new technologies and on the flow of information and
ideas on the web, since virtually all intellectual property will
soon be in digital form. The DMCA is complex and inconsistent. One
part says that it doesn't affect free speech, the press, or fair
use; other parts appear to outlaw the publication of tools for
these purposes, or the act of making fair use. The legislative
history provides little guidance given the divergent and often
conflicting views expressed."
"If Congress truly intended to give copyright holders the right
to control and eliminate fair use of their work, it has radically
changed the boundaries between copyright and the First Amendment.
The contours of these boundaries have major societal implications,
altering the relationships among citizens, consumers, engineers,
academics, businessmen, creators, scientists, and publishers. The
statute, to the extent it attempts to alter the scope of the First
Amendment, must be strictly scrutinized."
"The tool at issue, DeCSS, permits forms of fair use, such as
brief excerpting or quotation, scientific study, or archiving by
libraries; plaintiffs' authorized players deliberately do not. The
Court should not ignore these rights on the theory that this is not
an infringement action. If Congress has created new ways for
copyright owners to restrict the literary, political, or scientific
discourses protected by fair use and the First Amendment, these new
ways must also be applied consistently with the First
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