Altering the Contours of Copyright-The DMCA and the Unanswered Questions of Paramount Pictures Corp. V. 321 Studios

By Lutzker, Arnold P.; Lutzker, Susan J. | Santa Clara High Technology Law Journal, March 2005 | Go to article overview

Altering the Contours of Copyright-The DMCA and the Unanswered Questions of Paramount Pictures Corp. V. 321 Studios


Lutzker, Arnold P., Lutzker, Susan J., Santa Clara High Technology Law Journal


I. INTRODUCTION

In Eldred v. Ashcroft ("Eldred") (1) the United States Supreme Court, upholding the constitutionality of the Copyright Term Extension Act ("CTEA"), (2) stated that "copyright law contains built-in First Amendment accommodations" in the form of the idea/expression dichotomy and the fair use defense. (3) When faced with a legislative restriction that arguably chills the exercise of free speech, the Eldred Court said these safeguards render further First Amendment scrutiny unnecessary unless Congress seeks to alter the traditional contours of copyright protection. (4) In Paramount Pictures Corp. v. 321 Studios, (5) the Second Circuit rejected, without comment, the motion from a software distributor, 321 Studios, for an emergency stay of a preliminary injunction issued by the District Court for the Southern District of New York against the distribution of 321 Studios' DVD backup and recovery software. (6) 321 Studios requested a stay pending consideration of two constitutional questions: (i) whether the anti-trafficking provisions of [section] 1201(a)(2) and (b)(1) of the Digital Millennium Copyright Act ("DMCA") (7) impermissibly altered the contours of copyright, effectively curtailing appropriate fair uses of digital works protected by technological measures, and (ii) whether the DMCA invalidates the constitutional limitation on the term of copyright by prohibiting the manufacture and sale of tools needed to exploit works protected by technological protection measures after the copyright term expires. Because the District Court relied explicitly (as had the District Court for the Northern District of California in 321 Studios v. MGM Studios, Inc.) (8) on the Second Circuit's opinion in Universal City Studios, Inc. v. Corley ("Corley") (9) without consideration of the implications of Eldred, only a higher court review could have altered the analysis. (10)

By failing to accept 321 Studios' emergency plea for a stay pending full consideration of the merits, the Second Circuit lost the chance to take into account the impact of the intervening holding in Eldred as well as significant facts that distinguished the New York Litigation from Corley. The Second Circuit, to the profound misfortune of 321 Studios and loss to the general public, let stand a less than trenchant opinion of the anti-trafficking provisions of the DMCA in the face of a record that showed that consumers were being denied the tools to make fair uses of copyrighted works and unrestricted use of public domain works. The result is a chilling of activity that is privileged under the First Amendment and a validation of a mechanism that can confer perpetual copyright status on public domain works. Too late to help 321 Studios, a bill that would have altered this result by restoring the fair use defense for digital works was introduced, but died with the end of the 108th Congress. (11)

II. 321 STUDIOS

In 2001, Robert Moore and Rob Semaan founded Terr, LLC, a company based in St. Louis, Missouri that did business as 321 Studios. The mission of the company was to provide software tools to help consumers protect their investment in digital media. Until it was forced out of business by no fewer than six separate lawsuits and two federal court injunctions, it was the leading provider of DVD backup, recovery, and creation software. 321 Studios had distributors and sales offices throughout Asia-Pacific, Europe, and the United States, and its premier DVD backup title, DVD X Copy Platinum, was one of PC Magazine's "Best Products of 2003." (12)

Despite the popularity of its products with consumers, 321 Studios found itself at the center of a legal struggle to establish that its DVD-copying software did not violate U.S. copyright law. Ultimately, 321 Studios was driven out of business before the serious constitutional questions that were raised by its products could receive full appellate consideration in court. The story of the 321 litigation must be told against the history of the DMCA and, specifically, of its rules regulating access to digital works. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Altering the Contours of Copyright-The DMCA and the Unanswered Questions of Paramount Pictures Corp. V. 321 Studios
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.