If CSS is patented, would that make DeCSS illegal in the U.S.?
As far as the NY lawsuit is concerned, no allegation of patent infringement has been made. Even if a patent covering the operation of DeCSS is found the probable outcome of a patent-related claim is unclear for three reasons. First, there are questions about whether or not, and how far, a patent may be used to “interfere with” copyright. In U.S. v. Paramount 334 U.S. 131 (1948) the U.S. Supreme Court found that “block licensing” was illegal tying under anti-trust law. It is possible that the courts will find that patented access control schemes may not be used to achieve something copyright law does not permit. In concrete terms, a patent on CSS might allow the MPAA members to use their near-monopoly in copyrighted movies to achieve a monopoly in, or restrain trade in, play-back devices. Some choice quotes from the decision show the court’s reasonsing: “For a copyright may no more be used than a patent to deter competition between rivals in the exploitation of their licenses.” “That en
