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The DMCA, Computer Code, Fair Use, and the First Amendment

-- By BrianS - 11 Nov 2009

Universal City Studios v. Corley

In Universal City Studios v. Corley, the Second Circuit analyzed the program DeCSS? under the DMCA and that Act's relationship to the First Amendment and fair use. In discussing the proper scope of First Amendment protection to afford computer code, the court observed that anyone who possesses property rights "is entitled to prohibit access . . . by unauthorized persons." It noted that homeowners can padlock their doors, stores can attach alarms to merchandise, and those keeping valuable objects can place them in a safe. It then considered CSS as imposing a similar protection for DVDs. The analogy suggests that movies are the valuables, copyright holders are the property right possessors, and CSS is the padlock on the front door.

This comparison, although facially appealing, is flawed for at least one central reason: there is no doctrine of fair use for burglary but there is for copyright law. While a homeowner is not required to give his neighbor a key to his front door so that the neighbor can browse the homeowner's belongings, fair use empowers authors to innovate in certain ways based on or using property held by another.

The court also correctly noted that "government regulation of expressive activity is 'content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 720 (2000).

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