Fair Use vs. DMCA

At issue is the software DVD X Copy, which has sold over a million copies already and allows users to make "backups" of DVD movies (and because it includes the clever crypto piece DeCSS, that includes DVD with the latest in digital rights management meant to prevent that copying.)

In 1984, the Supreme Court considered the fate of videotape with the landmark (and oft-cited) Sony Betamax case, which helped establish the doctrine of "substantial non-infringing use" (which protects technology like the VCR and photocopier which have both infringing and non-infringing uses.)

One would think this was enough protection for DVD X Copy ... but enter the 1998 Digital Millenial Copyright Act:

"No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

... and ...

"No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--

"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Given that after four years of legal wrangling the DVD CCA dropped their lawsuit against Andrew Bunner (over the DeCSS unencrypter being used in DVD X Copy) it's a bit surprising to see Judge Illston rely upon that aspect so heavily. But even more suprising seems to be her overlooking of how that clause ends:

"Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."

This sounds like a pretty clear assertion that fair use would not be diminished by the DMCA, even though the criminalization of de-encryptation technology is an obvious reduction in the fair use right of creating a backup. Which leaves hope that an appelate judge might instead chose to favor the doctrine of substaintal non-infringement over the criminalization of de-encryptation technology.