Re: 2600 Loses in 2nd Circuit DMCA Case

Bryan Taylor writes:

:
: The 2nd Circuit issued its decision in Universal Studios v Corley, and affirm
: ed
: the lower court's decision. They found that all software code is speech and
: applied intermediate scrutiny, holding the DMCA to be a content-neutral
: restriction on non-speech elements of conduct that does not burden more speec
: h
: than necessary.
:
: Here is the opinion:
: http://cryptome.org/mpaa-v-2600-cad.htm
:
: Notable points:
:
: 1. The Court explicitly did not consider the "Outside the Constitutional
: Powers" arguement endorsed by an amicus brief representing 46 IP professors.
: 2. The Court issued the most sweeping and decisive statement yet that softwar
: e
: is entitled to First Amendment protection in both source and object forms.
: 3. The Court applied intermediate scrutiny saying that software's "functional
: capability" exists and explicitly recognized and ignored the fact that human
: action is needed to execute the software
: 4. The Court concluded that the DMCA was clearly not the least restrictive
: means to achieve its ends, but that intermediate scrutiny only requires the
: statute to avoid burdening more speech than it has to. It found, with little
: comment, that it met this test.
:
: I believe the Court made three errors:
:
: 1. The O'Brien standard requires the court to provide an argument for why the
: statute is in the scope of Congressional power. They explicitly refused.
: 2. The court noted that software's "functional capability" requires human
: action to turn it into conduct. O'Brien covers conduct proper, which the Cour
: t
: provides a nice argument to show that it doesn't exist, but proceded on anywa
: y.
: 3. The court did not show "narrow tailoring", it merely said "least restricti
: ve
: means" were not met but not required. Given that it found code is speech and
: that the defendents argued that circumvention resulting in a non-infringing
: fair use results in substantial speech interests, this is also a spot where t
: he
: Court didn't meet the burden required by intermediate "scrutiny".
:
: In short, the court really applied the intermediate "rubber stamp" instead of
: intermediate "scrutiny".
:

I noted a couple of more, related, errors.

The court purported to apply the O'Brien standard on the basis that the statute was ``content neutral'' when the statute only applies to software---which it held to be speech---that contains instructions that can be used to ``circumvent'' in violation of the DMCA.

The court purported to apply the O'Brien standard although the O'Brien standard only is applicable to ``expressive conduct,'' while the software in question, though it might be used ``functionally,'' was not expressive conduct, but rather ``pure speech'' as that term is defined in the Supreme Court's opinion in Bartnicki.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists