0) The court doesn't have jurisdiction (wrong parties, procedural problems)

plaintiffs aren't real parties in interest

plaintiffs don't meet their burden with conclusory affidavits

1) DeCSS doesn't circumvent

a) it permits use, not access - no 1201(a)(2) violation

b) the DVD owner already has authority to access

c) DeCSS doesn't give access, the player does

2) If DeCSS circumvents, it's within one of the exceptions

a) reverse engineering

b) encryption research

c) DeCSS not a "technology, product, service, device, component, or part thereof"

d) commercially significant purpose or use other than circumvention AND not primarily designed or marketed for circumvention

3) If DeCSS doesn't fit within one of the exceptions, 1201 is unconstitutional either as applied to DeCSS or on its face

a) puts too much burden on free speech

i) software is speech   

ii) 1201 unsupported by the necessary legislative findings for intermediate scrutiny (Turner I)   

iii) takes away fair use  (fair use is constitutionally mandated to meet the copyright "delicate balance")

b) outside congressional power (Copyright or Commerce)   

i) potentially unlimited times   

ii) patent-like monopoly without the patent-requisite disclosure   

iii) engenders antitrust problems / copyright misuse

c) procedurally unsound   

i) void for vagueness   

ii) ex post facto effects   

iii) impermissible delegation to private entities

4) The movie industry can't enforce the anticircumvention provision against DeCSS defendants because it's misusing copyrights/tying DVD players to copyright (antitrust or equity argument)

Last modified: 3/23/00