The record did not indicate that DeCSS had anything to do with testing computers, computer networks or systems. The court rejected the fair use defense. The masses shall not be enlightened. Having suffered defeat on legal defenses, defendants attacked the DMCA on consitutional grounds. Defendants argued that computer code is speech and that the DMCA prohibition of DeCSS violates their first amendment rights.
Computer code is protected speech under the First Amendment.
DeCSS is computer code and therefore protected speech. Defendants argued that DMCA was unconstitutional because it prevented them from speaking, that is, communicating the DeCSS code. The court rejected this argument by distinguishing between types of restrictions placed on speech. Content based restrictions are enforceable only if they serve compelling state interests by the least restrictive means. But content neutral restrictions are enforceable if they serve a substantial state interest and are not more restrictive than necessary.