The key holding of Eldred is that �when ... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.� The reason for this is that fair use and idea/expression provide �built-in free speech safeguards,� which �are generally adequate to address� the problem that copyright makes reproducing certain speech illegal.
Well, what happens if Congress decides to �alter the traditional contours of copyright protection,� by greatly restricting fair use, or begins to offer protection to ideas in the guise of protecting mere expression? In that case, �further First Amendment scrutiny� would be necessary. If Ginsburg does not mean this, then its hard to see what her argument amounts to other than a blank check to Congress to rewrite copyright law any way it wants.
And that brings us to the DMCA. As many people know, the Digital Millenium Copyright Act creates a new species of intellectual property protection, sometimes called �paracopyright,� that protects not copying itself but the creation of various devices and technologies that might be used to facilitate copying by circumventing copyright management devices. The DMCA prohibits the distribution of technologies that circumvent copyright management devices, and the Second Circuit has held that it reaches even linking to sites where such technologies may be found. Moreover, the DMCA protects copyright management devices from circumvention even if these devices are employed deliberately to prevent people from using copyrighted materials in ways completely consistent with fair use.
Does the DMCA �alter the traditional contours of copyright protection�? Yes, it does, in two respects. First, it creates a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. Second, it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. Congress has exceeded the traditional boundaries of copyright protection, superimposing a new form of intellectual property protection that undermines the �built-in free speech safeguards� crucial to the holding in Eldred. Hence, under the logic of Eldred, the DMCA is constitutionally suspect.
So even while Eldred has forced the battle over statutory copyright terms back to the Congress, it may have bolstered the prospects for constitutional challenges of the DMCA.