Vol 7 No 1 - Roger Williams University School of Law

ejected this purported distinction as being “totally illusory.”160The Court explained, “the relevant question under the FirstAmendment—regardless whether it arises as a defence in a suitfor copyright infringement or in an anticipatory challenge to astatute or regulation—is whether the party has a FirstAmendment interest in a copyrighted work.”161The type of argument or justification for reconciling copyrightand the First Amendment given in Harper & Row and Eldred ismore difficult to sustain when a law proposes to protect facts oreliminates fair use. The European Database Directive of 1996protects facts and gives very limited fair use rights, as do proposeddatabase laws currently before the U.S. Congress. How mightthey stand up in the face of a First Amendment challenge? Thescrutiny or balancing process here will be interesting.Furthermore, Universal City Studios v. Reimerdes,162 concerningthe operation of the DMCA, suggests that the DMCA can act toprotect facts and eliminate fair use rights where a technologicalprotection measure is in place.163 The DMCA does this byprohibiting actual circumvention of an access control and byprohibiting providing, offering or otherwise trafficking in a devicethat will circumvent an effective technological access or copyprotection measure.164 It is no defence to this law to argue thatthe circumvention has taken place in order to make fair use ofmaterial behind the technological protection measure or to gainaccess to raw data or facts behind the technological protectionmeasure.165In Reimerdes, the issue of free speech was raised in thecontext of the DMCA anti-circumvention provisions. The ContentScrambling System (CSS) was a form of encryption used to protectDVDs from being played on unauthorised players. An authorisedDVD player, which included a computer running MicrosoftWindows, would allow the DVD to be played but not copied. Inorder to allow people to speak in different digital voices, namelythe Linux open code operating system, DeCSS was released.Initially, the 2600 website made the program available from their160. Id. at 376.161. Id.162. 111 F. Supp. 2d 294 (S.D.N.Y 2000).163. Id. at 322.164. See 17 U.S.C. §§ 1201(a)(1), (a)(2), (b) (Supp. IV 1998).165. Reimerdes, 111 F. Supp. 2d at 321-23; see Benkler, supra note 10, at 412-46.