Advance Notes: As we move into new areas of technology, the chances for losing control of our copyrighted images loom greater. However, there's hope--a recent court decision now makes it harder to copy a web image under the guise of "fair use." –Ed.

            The Digital Millennium Copyright Act of 1998 sought to prohibit the "trafficking" of devices which could "break" protective codes or encryptions protecting copyrighted works. The Act does not actually require there to be any infringing acts -- the trafficking in these devices is sufficient to create liability.

            The United States Circuit Court of Appeals for the Second Circuit, in a November 28, 2001 decision (Universal City Studios, Inc. v. Curley) has upheld the constitutionality of this part of the DMCA. This is a significant victory for copyright owners.

            The case pitted owners of copyrights against first amendment free speech advocates who argued that the attempts to decrypt the encryption code which limited access to DVD movies, are free speech entitled to constitutional protection.

            The court found that, in fact, computer code could be speech and thus protected under the constitution. It also held, however, that the DeCSS system was "like a skeleton key that can open a locked door," which also contained another, distinct, non-speech element that could be prohibited without violating right to free speech.

            In effect the Court held that the defendants had no constitutional right to copy the DVD movies (or by extension, any other copyrighted property) in its original format, or optional methods of delivery, since the defendants could use differing versions of the work for lawful purposes, such as criticism or film reviews. These versions include videocopying images off of a monitor.

            The Court succinctly concluded that "fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original."

            This case, following the Napster and other recent decisions in favor of copyright protection, are significant indications that the courts are siding with preservation and protection of copyrights in this age of new emerging technologies.