, 504 U.S. 555 (1992), the first appropriate test is whether the plaintiff has or will suffer an "immanent . . . injury."
Well, Judge Sterns devoted most of his brief four-page memorandum opinion to arguing that the threat of a lawsuit or prosecution Edelman faces is too remote for him to step in. First Edelman has to do the research and publish it, and the court expressed great doubt about whether his plans are sufficiently concrete for it to be concerned. As Ed Felten learned when he tried, these sorts of suits for declaratory judgements are hard to win; all your DMCA-wielding foe has to do is be coy about whether they'd actually file suit and all of a sudden it's hard to see a concrete "Case or Controversy."
Edelman and the ACLU tried to force Judge Sterns into confronting the Constitutional issue, but he ducked it except for the statement that "there is no plausible constitutional [sic] interest that Edelman can assert that outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass . . . ."
This is the only sentence in the entire opinion which goes to the underlying merits of the ACLU's claim that the relevant part of the DMCA is unconstitutional, but what does this mean in serious legal terms? Honestly, I have no idea. It barely makes sense.
To begin, this is the first time I have ever seen anyone talk about a "trespass" to intellectual property. Intellectual property is one thing. Trespass to chattels, where the chattels are computers, is another. But the two concepts have never been combined in the caselaw so far as I can tell. I'm not so clear on why the circumvention would be "destructive," either.
More to the point, I just can't tell whether "no plausible constitutional interest" means that Judge Sterns thinks that Edelman can't even formulate a First Amendment claim, or that he doesn't think the First Amendment claim outweighs the intellectual property claims made by N2H2. If the former, the opinon is a mondo slap-down for the ACLU; if the latter, then Judge Sterns didn't deal with the merits of the case at all and we've learned nothing about the DMCA.
Of course, since he didn't cite any other cases for this point, or even explain his reasoning in more than a phrase, there's really no way to tell what would have happened had this case come up on a suit by N2H2 against Edelman for circumventing its encryption. In that case, the justiciability problem would immediately go away and the case would have to be decided on the Constitutional question. (Of course, if Edelman lost in such a case, he could be facing damages that would make his law school tuition look like chump change, so he's understandably not willing to take the risk of waiting to be sued.)
Justiciability is a minefield, and an extremely messy one; it's hard to draw useful conclusions from cases decided in terms of who has "standing" to sue. Lujan itself is an excellent case in point. The Supreme Court all but conceded that even if the Secretary of the Interior was blatantly violating the Endangered Species Act, it wouldn't step in to stop him, for the sole reason that plaintiffs couldn't explain how they faced "immediate . . . injury" from his violations.
Even if there are terrible consequences flowing from obviously illegal or unconstitutional acts, the Supreme Court won't let the courts stop them unless someone steps forward with a sufficiently immediate injury. Judge Sterns ruled today that Ben Edelman's potential injury is insufficiently immediate. Or maybe that it was insufficient, period. There's a big difference, but the opinion just does not make clear which is the case.
The ACLU says that it's "considering" whether to appeal; in the face of such a fuzzy opinion, I'd guess that they will.