Judge Allows Electronic Copyright Case to Proceed

In an important legal victory for publishers, movie studios and record companies, a federal judge ruled Wednesday that a controversial 1998 law bars the distribution of any tools that crack electronic locks on a copyrighted work.

U.S. District Judge Ronald M. Whyte held that the Digital Millennium Copyright Act is constitutional even though electronic locks could make it hard for consumers to make “fair use” of the copyrighted products they buy.

“That is part of the sacrifice Congress was willing to make in order to protect against unlawful piracy and promote the development of electronic commerce and the availability of copyrighted material on the Internet,” Whyte wrote in a 32-page opinion.

Critics of the DMCA, including some lawmakers, said it allows copyright owners to wipe out consumers’ ability to copy music, books and movies for personal use. But Hollywood studios and record labels, alarmed by the flood of unauthorized copies online, are pushing for even stronger measures to limit what consumers can do.

In the first criminal prosecution under the DMCA, Russian programmer Dmitry Sklyarov was arrested last year for distributing a program that removes the electronic locks from Adobe Systems Inc.’s e-books. Charges against Sklyarov were dropped after he agreed to testify against his employer, Elcom Ltd.

Elcom’s lawyers argued that the DMCA is unconstitutional, but Whyte dismissed their motion and let the case proceed to trial.

Federal copyright law gives the owners of a copyrighted work the exclusive right to copy and perform it publicly. The main exception is for “fair uses,” such as making a back-up copy or printing excerpts in an academic paper. In the DMCA, Congress made it illegal for any person to manufacture, import or distribute technology whose main purpose is to circumvent the electronic locks that limit access to or use of a copyrighted work.

That provision covered such things as the anti-copying controls on DVDs and the software that prevents consumers from reading the Wall Street Journal online without a subscription.

Elcom’s lawyers contend that the company’s software lets e-book buyers do a host of legal things that Adobe’s locks prevent, such as making back-up copies, using text-to-speech converters and printing out chapters.

But Whyte ruled that the law “bans trafficking in or the marketing of all circumvention devices,” even if they could be used to support fair uses.

“The DMCA does not ‘eliminate’ fair use,” Whyte wrote. “Although certain fair uses may become more difficult, no fair use has been prohibited.” Besides, Whyte said, no law or court ruling guarantees a consumer “the right to the most technologically convenient way to engage in a fair use.”

Cindy Cohn, legal director of the Electronic Frontier Foundation, said, “It’s as if the judge ruled that Congress can ban the sale of printing presses, because the 1st Amendment right to publish speech was not attacked directly and quills and ink are still available. What good are the public’s rights if the tools needed to make fair use or access works in the public domain are illegal?”