Under plaintiffs' reading of the DMCA's anticircumvention provision, however, copyright holders would have the absolute power, through the simple addition of a technological device, to insulate their works from unwelcome but fair uses. I respectfully suggest that this view, apparently adopted by the Court in its memorandum opinion, cannot be correct. Plaintiffs seek, through CSS, to write their own copyright laws, to put legal force behind any restrictions chosen by a copyright holder, without respect for time limits on copyright, the amount of uncopyrightable material within the protective envelope, or the doctrines of first sale and fair use. Plaintiffs thus stake a claim far in excess of the exclusive rights explicitly granted them in the existing Copyright Act. Despite publication and sale of their movies on DVD, plaintiffs seek to maintain air-tight control over what buyers may do with the movies.
Plaintiffs create movies that become part of our shared cultural fabric.
They cannot now deny the public the right to continue the discourse. The constitutional limits on the scope of access controls must authorize bypassing controls that extend too far. If the Court finds such an exemption incompatible with Section 1201, I respectfully submit that it must find this Section violates the First Amendment and the congressional power conferred by the Copyright Clause. For the foregoing reasons, plaintiffs' preliminary injunction should be vacated and their complaint dismissed. The Supreme Court has ruled on fair use several times in the last two decades alone, on decisions that were overturned at every level of review.