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 works, however, is expressly “permitted by law” in the United States. To the extent that the DMCA is interpreted to implement the treaty obligations that prompted its enactment, accordingly, the statute cannot plausibly be read to forbid circumvention for fair use. Although the Reimerdes court recognized that its interpretation of the DMCA “le[ft] technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so,” it declared that this problem was “a matter for Congress.” A court less animated by hostility to the defendants in the case at bar might more readily have perceived such an absurd consequence as evidence of error in its interpretation of the statute. The Second Circuit affirmed the trial court’s decision on appeal. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). The appellate court’s decision adds little to our understanding of the DMCA, however, because the appellants elected to rely primarily on constitutional, rather than statutory, arguments. See id. at 444-45, 458-59. The appellants first argued that limitations on fair use offended First Amendment principles. Constitution of the United States of America amend. I. The Court of Appeals reasoned that the functional characteristics of the DeCSS code disentitled it to the full extent of First Amendment protection that attaches to ordinary speech, and that the DMCA was a content-neutral regulation that served a substantial governmental interest unrelated to the suppression of free expression and was not unduly burdensome. See id. at 452-54. I have previously expressed doubt as to the ongoing viability of this portion of the court’s analysis. See Armstrong, supra note 11, at 68 n.87. If we conceptualize fair use as protecting First Amendment values, as the Supreme Court did in Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003), then constructions of the DMCA that work to restrict fair use in practice may become constitutionally suspect. More recent cases may suggest greater judicial willingness to subject copyright legislation to First Amendment scrutiny. See, e.g., Golan v. Gonzales, 501 F.3d 1179, 1187-96 (10th Cir. 2007). The Court of Appeals further rejected any argument grounded on the Progress Clause, Constitution of the United States of America art. I, § 8, cl. 8, rather than the First Amendment. See Corley, 273 F.3d at 458-59.

2. The Durable Goods Cases
In a trio of more recent cases—Chamberlain Group, Inc. v. Skylink Technologies, Inc., Lexmark International, Inc. v. Static Control Components, Inc., and Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc. —two federal courts of appeals refused to apply the DMCA to prevent circumvention of access control mechanisms embedded in durable goods.