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.

* Eldred v. Ashcroft, 123 S.Ct. 769, 778-81 (2003) (discussing the “limited times” requirement, although finding it satisfied by a twenty year extension of copyright terms). **See, e.g., Craig Allen Nard, The DMCA’s Anti-Device Provisions: Impeding the Progress of the Useful Arts, 8 Wash. U. J. L. & Pol'y 19, 34-35 (2002) (“the anti-device provisions are inconsistent with patent law’s constitutional command to promote the progress of the useful arts”); L. Ray Patterson, The DMCA: A Modern Version of the Licensing Act of 1662, 10 J. Intell. Prop. L. 33, 57 (2002) (“the unconstitutionality of the DMCA is beyond doubt”); Eugene R. Quinn, An Unconstitutional Patent in Disguise: Did Congress Overstep Its Constitutional Authority in Adopting the Circumvention Prevention Provisions of the Digital Millennium Copyright Act?, 41 Brandeis L. J. 33, 37 (2002) (concluding that the DMCA anti-circumvention rules are unconstitutional because they “provide patent protection that lasts forever, and fails [sic] to inquire whether the patentability requirements in the Constitution are satisfied). See also Yochai Benkler, Free As the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 414-29 (1999); Jane C. Ginsburg, From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law (Hugh Hansen, ed. 2003); Glynn S. Lunney, The Death of Copyright: Digital Technology, Private Copying and the DMCA, 87 Va. L. Rev. 813, 910-11 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 Stan. L. Rev. 1, 74-81 (2001); Jason Sheets, Copyright Misused: The Impact of the DMCA Anti-Circumvention Measures on Fair and Innovative Markets, 23 Hastings Comm. & Ent. L. J. 1, 25-27 (2001). [FN 2 in Copyright Profs. Amici Brief]

February 22, 2004: Court says DVD copying is infringement - Judge Susan Illston of the Northern District for California ruled that 321 Studios must stop selling their DVD-X Copy and DVD Copy Plus software in seven days because the DVD copying software violates copyright law. [321 v. MGM et al (pdf) Hollywood Wins DVD-Copying Case]

Of course, we all know that the DMCA is unconstitutional, but does that really matter when judges like Illston are willing to ignore valid arguments (pdf).

EFF Legal Director Cindy Cohn says: "This court's reading of the statute in the 321 Studios case allows a ban on any tool that enables consumers to copy their DVDs." [Press Release]

If the fact the court have sided with the Motion Picture Association of America has got you down, just head over and see Kevin Rose, of the screen savers, who has some tips on backing up your DVDs for free.

March 3, 2004: Paramount & 20th Century Fox v. 321 Studios [pdf] Judge Owen of SDNY ruled that the manufacturing and distribution of software that can decode CSS, the content scramble system that encrypts DVDs, violates the anti-trafficking provisions of the DMCA.