Looking at the Decision in 321 v. MGM

One of the major deficiencies in Judge Illston's Order in the 321 case, I believe, is the over-reliance on Judge Ronald Whyte's opinion in United States v. Elcom, Ltd., 203 F. Supp.2d 1111, 1127-42 (N.D. Cal. 2002) which, as the Copyright Law Professors point out, "did not have the benefit of the Supreme Court’s Eldred decision* when he opined that the DMCA anti-circumvention rules were constitutional ... [or] of very recent scholarship that delves into constitutional deficiencies of the DMCA rules."** See specifically Ilston Order pp. 21-22. As well as her cursory dismissal of the argument that the anti-device provisions abrogate the limits of the Intellectual Property Power.

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