Such laws, which are content-neutral and restrict speech in pursuit of a valid government interest, are subject to what has come to be known as the O Brien test. This test has been more recently restated as applied to benign regulations of information production and exchange in Turner I . Applying the antidevice provision to burden valuable speech that is privileged under general copyright law cannot enhance the enforceability of copyright in digital works. The incremental increase in the rents owners of copyrighted works gain from exercising this new right in a new medium cannot justify the elimination of the traditional protections of free speech embodied in copyright as we move our cultural conversation to the digital environment. If the defendants are right about the implausibility of using a device like DeCSS for widespread copying and distribution of movies rather than for personal access then the harm supposedly addressed by enjoining it under the antidevice provision is remote and conjectural.
Plaintiffs claim otherwise.
They rely on a series of predictions about the future evolution of distribution technologies and consumption patterns whereby unauthorized individual access in digital form would be so simple that users would stop attending movie houses, renting DVDs or VHS cassettes etc., and thereby radically undermine the economics of movie production. The solution that Congress chose to avoid this horrific scenario, so the plaintiffs claim, is to create in the DMCA a new absolute right. This right empowers owners of copyrighted works to decide which equipment the owners of copies of their works must use to access them, and to prevent all access to the work, whether the access is gained to make uses traditionally considered privileged under the Copyright Act or not. It is the purported new burden on these privileged uses that presents the First Amendment cost that those who rely on the antidevice provision must justify. And it is the failure to justify prohibition of circumvention in aid of making privileged uses that renders the antidevice provision unconstitutional as applied to devices that enable such uses.