Vol 7 No 1 - Roger Williams University School of Law

platforms such as Linux.289 They argued that DeCSS wasnecessary to achieve interoperability290 between computersrunning on the Linux system and DVDs; therefore, theinteroperabilty exception in the DMCA was enlivened. The judgeexplained that he could not accept such an argument for threereasons:First, defendants have offered no evidence to support thisassertion. Second, even assuming that DeCSS runsunder Linux, it concededly runs under Windows—a farmore widely used operating system—as well. It thereforecannot reasonably be said that DeCSS was developed “forthe sole purpose” of achieving interoperability betweenLinux and DVDs. Finally, and most important, thelegislative history makes it abundantly clear that Section1201(f) permits reverse engineering of copyrightedcomputer programs only and does not authorizecircumvention of technological systems that controlaccess to other copyrighted works, such as movies.291The defendants also made the argument that they were engagedin a fair use under Section 107 of the Copyright Act.292 The judgerejected this argument:Section 107 of the Act provides in critical part thatcertain uses of copyrighted works that otherwise would bewrongful are “not . . . infringement[s] of copyright.”Defendants, however, are not here sued for copyrightinfringement. They are sued for offering to the publicand providing technology primarily designed tocircumvent technological measures that control access tocopyrighted works and otherwise violating Section1201(a)(2) of the Act. If Congress had meant the fair usedefense to apply to such actions, it would have said so.293A crucial issue arising from such reasoning is whether the289. See id. at 218.290. See id. (This might be termed “vertical” interoperability); see O’Rourke, supranote 198, at 1213, 1219-1223.291. See Reimerdes, 82 F. Supp. 2d at 218.292. See id. at 219.293. Id.; see also Kamiel J. Koelman & Natali Helberger, Protection ofTechnological Measures, in Copyright and Electronic Commerce: Legal Aspects ofElectronic Copyright Management (P. Bernt Hugenholtz ed. 2000).