321 Studios v MGM, DMCA, fair use, and the _Eldred_ pony-hunt

Last year, there was a DMCA / fair use "pony hunt" to find a way to argue that a sentence in the Eldred decision would undo the legal hack where the DMCA hacks-away fair use. Unfortunately, we are still left with a pile of manure: (my emphasis below)

http://www.eff.org/IP/DMCA/MGM_v_321Studios/20040219_Order.pdf

"This Court concludes that the challenged portions of the DCMA do not unconstitutionally burden the fair use rights of users of the copyrighted material. In reaching this result, the Court rejects as too sweeping plaintiff's claim that such users have a First Amendment right to make fair use of copyrighted works based on Eldred v. Ashcroft, 123 S. Ct. 769 (2003). The Eldred case stated that "in addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations . . . the `fair use' defense allows the public to use not only facts and ideas contained in a copyrighted work, but also the expression itself in certain circumstances." Eldred, 123 S. Ct. at 788-89. However, the Court went on to state: "[t]he First Amendment securely protects the freedom to make ­ or decline to make ­ one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them." Id. at 789. While the Court further declared that copyrights are not immune from challenges under the First Amendment, it is a stretch to claim that Eldred mandated absolute First Amendment protection for fair use of copyrighted works. As the First Amendment bears "less heavily" in situations such as this, this Court determines that the burdens concededly imposed by the DMCA do not unconstitutionally impinge fair use rights. Although not all content on DVDs may be available in other forms, plaintiffs have conceded that it is possible to copy the content in other ways than in an exact DVD copy. This Court agrees with this analysis in Corley: We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. . ."

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)