The judge noticed a problem of her own with the DMCA:

At one point, the judge called on Department of Justice attorney John Zacharia to answer some questions about the DMCA. The attorney has weighed in on the side of the studios in an attempt to defend the constitutionality of the DMCA.

Illston asked Zacharia to explain the conundrum of locking up copyrighted works behind encryption and then making the breaking of that encryption illegal, even after the copyrights on those works expire. The judge wondered if it would effectively extend copyrights to keep such works out of the public domain.

Zacharia said it would not, because the copyright had expired.

"But it's encrypted. If it doesn't stop being encrypted, it's still encrypted," Illston said, adding that such protected works still couldn't be legally copied.

Good point, judge.

Forbes has more:

"The studios haven't claimed copyright infringement in this case because they know that they'd lose," says 321 Studios attorney Michael Page. "The studio has never presented any evidence that people have misused our product."

Irrelevant, say the studios. "The law says that I have the right to lock up my intellectual property and you don't have the right to break that lock," says Motion Picture Association of America attorney Russell Frackman. "If you break into my house, it doesn't matter if you take anything."

All of these legal arguments boil down to the issue of "fair use" copyright law, which gives consumers the right to make copies of media that they have purchased as long as they are employed for personal use. Since the DMCA law prohibits breaking any copyright encryption, fair use advocates argue, the 1998 act that the studios have based their case upon prohibits a consumer's right to make personal copies of legally purchased media.

In a very busy day for the copyright industry, two of the studios sued five additional companies that make DVD copying software in New York:

lawyers for Paramount Pictures Corp. and Twentieth Century Fox Film Corp. filed for an injunction in U.S. District Court in New York to bar five companies from selling DVD copying software.

The suit names Internet Enterprises Inc., RDestiny LLC, HowtocopyDVDs.com, DVDBackupbuddy.com and DVDSqueeze.com as defendants. None could immediately be reached for comment. [Reuters]

It is simply unacceptable for the DMCA to prohibit an action (copy-protection circumvention) that is required for consumers to exercise their fair use rights - change it.