21

Conclusion

As applied to prohibit DeCSS, the antidevice provision of the DMCA

violates the First Amendment. CSS is a device that makes fair and otherwise

privileged uses of digitized materials practically impossible. Prohibiting its

circumvention in the absolute way that the antidevice provision, as interpreted

below, does, would render these materials practically unavailable to the vast

majority of users who are not computer geeks.

An elimination of fair use, or otherwise privileged uses, for digitized works

is a radical departure from traditional copyright law. The purported justification

for this departure relies on the unique attributes of digital copying. While these

attributes may justify some technological regulation, the legislative record is

devoid of consideration of why less restrictive means, like those already adopted

for digital audio tapes, would not suffice.

As applied by the court below to DeCSS, the antidevice provision imposes

too great a burden on speech for too speculative a gain to withstand First

Amendment scrutiny.

22

Dated: January 25, 2001

Respectfully submitted,

_________________________
Yochai Benkler
New York University School of Law
Vanderbilt Hall
40 Washington Square South, 322-A
New York, NY 10012
(212) 998-6738

Lawrence Lessig
Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305
(650) 736-0999