First Amendment Scrutiny in the DMCA's Future?

Although traditional First Amendment protections do not apply in the private context, thus according copyrights a historic exemption from the First Amendment.  However, in Eldred v. Ashcroft,  the Supreme Court “majority conceded that lower courts have spoken too broadly when declaring copyrights categorically immune from First Amendment challenges.”   The petitioners “maintained that copywrite law is a content-neutral speech regulation and … should, therefore, be subject to intermediate scrutiny.”   Although the challenge in Eldred was rejected, the Supreme Court narrowed copyright’s sweeping immunity from First Amendment scrutiny.  In this way, Eldred may have opened the door for future First Amendment scrutiny of copyright based statutes.   Perhaps since Congress has taken an affirmative step to enter the otherwise private arena in advancing both civil and criminal sanctions under the DMCA the Court should apply the First Amendment prophylactically to the statute, or even apply intermediate scrutiny.