International Journal of Communications Law & Policy

BUSTING THE CODE: THE ANTI-TRAFFICKING PROVISIONS OF THE DIGITAL MILLENNIUM COPYRIGHT ACT AND FREE EXPRESSION IN DIGITAL MEDIA

By Shaun Sparks

Download the Paper in PDF Format: IJCLP Web-Doc 13-6-2001

Abstract

In 1999, Universal City Studios, Inc. sought a permanent injunction against the owners of the website 2600.com for making available, via download, the computer program DeCSS. DeCSS is capable of decoding movies recorded in the digital versatile disc (DVD) format.

That studio alleged that the United State's newly enacted Digital Millennium Copyright Act proscribed the distribution of DeCSS. Universal City Studios obtained a permanent injunction against 2600's offering of DeCSS on that basis. The UCS court's interpretation of the DMCA does not restrict the sale or distribution of infringing copies of movies decoded from DVDs. Instead, it speaks directly to the content that individuals may communicate across the Web. The UCS court held that 2600.com violated the DCMA by allowing individuals to download DeCSS from that website.

This case note explores the UCS court's interpretation of the DCMA's restrictions on distributing the means to circumvent electronic copyright protections. With programs such as DeCSS, difficult constitutional questions arise concerning government regulation because expressive and functional components coalesce in one entity. Those questions arise because of the exclusive nature of regulation schemes for expression and conduct; expression generally receives a higher degree of constitutional protection than conduct. The question in protected hybrid expressive conduct cases is this: where should courts draw the line between rational basis review of conduct restrictions and substantial or compelling review of restrictions on pure expression.

This case note critically examines the long-term implications of the UCS court's decision to grant that injunction, and argues that in so doing, the USC court enforces an ultimately unworkable solution.

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