It would seem to me that the anti-circumvention provisions are facially unconstitutional. The provisions do not criminalize the distribution of copyrighted material, but instead of material which can help others bypass DRM. This is inconsistent with the standard of speech protection in the U.S. (that merely helping or encouraging others cannot be criminalized unless it is imminent lawless action). Of course, anti-circumvention tools can be as simple as a 64 bit key, or as complicated as an exploit payload.
The provisions are overly broad, especially in that they are permanent. If I released something not protected by copyright, but protected by DRM, any circumvention tools would remain criminal forever, unlike copyright which lasts "forever less one day". (MPAA joke)
I can think of so many reasons why these tools should not be criminalized. A circumvention tool in one context could be research or perfectly legitimate in another context. If I released software that could be circumvented with a key and it is illegal to distribute the key, what if the key was already used by some other software in a different way?
I believe one federal court ruled a key might not be criminal under the DMCA, but a different federal court ruled a large program could, so there's some conflicting precedent and we have a long way to go before the DMCA is shot down for any reason.
It perverts the idea behind copyright to enforce control, like this anti-circumvention provision.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
That's not how constitutional law works. The constitution doesn't grant permission to use copyright for that, but it doesn't say you can't either. In most cases, constitutional prohibitions are interpreted from explicit text ("Congress shall make no law..."), not from a simple omission.
And in any case a very reasonable interpretation is that the DMCA is simply providing legal teeth to the "securing ... the exclusive Right" part of that sentence, which would otherwise be impossible to secure (in both the old and new sense
of the word) in the digital age.
I'm not saying you can't make a constitutional argument here, but that it's hardly cut and dry. If you really want to hang your hat on the "unconstitutional" bit, I think you're going to need some actual judges to back you up before anyone takes you seriously.
Right, but in being right you point out the absolute wasteland of our government in that when a citizen cries "unconstitutional" he's ignored because of a technicality.
He, and I, don't support this law. Further, we don't support those who passed this law either knowing its abuses, or not caring to investigate. None of the "too busy, had to do something" excuses count because we, the people, supposedly to root of power in this country, were systematically ignored and silenced by government action when we spoke out against this type of law. A government that passes these laws is a government directly acting outside the powers granted by the people.
When we say unconstitutional we mean against the founding spirit of this country, that government is limited and responsible to the people.
If you have a better term than unconstitutional, suggest it, but we aren't discussing some technical quirk of this system as if we cared about the justifications others have made - we're discussing that it's poisoned and not serving those who feed it.
> When we say unconstitutional we mean against the founding spirit of this country, that government is limited and responsible to the people.
Fine. Just recognize that the rest of us use the same term to mean "incompatible with the constitution" and are going to get confused when you start changing the langauge without telling us.
Look, I think the DMCA is dumb too. But if I'm reading between the lines, what's really happening is that you actually want the DMCA to be "technically invalid" in the way that an unconstitutional law is. That is, you want the technical definition of "constitutional" for its impact but you want your looser "principles" definition for categorizing the DMCA. Sorry, but that's just bad logic. Stop it.
The law sucks, and there are few plausible ways to correct that. But stop with the constitutionality argument; it's not a get-out-of-jail-free card here.
There should be enough ground to deem it unconstitutional technically, and not just loosely a "bad" law. But I'm not a law scholar to spell all the details out. One of the areas where DMCA is seriously problematic was already pointed above - i.e. the issues of free speech and etc.
I think my meaning of unconstitutional carries all the weight it needs. A government not serving its people, especially knowingly, is not a valid government, and isn't making valid laws.
Handwaving, much? There's no universal and objective measurement for "government not serving its people." If there were, many problems of government and politics would be a heck of a lot easier.
I don't disagree with the sentiments about the badness of the DMCA, but it doesn't help anyone to trivialize the practical difficulties in establishing a well-functioning government.
There are many universal standards for a government not serving its people. Literally uncountably many. So yes, you're technically right that there is no one standard.
I don't mean to trivialize anything. But government starts with the consent of the governed. It's cool, sort of, that you feel you consent to this. But I don't. It's not that it isn't good enough soon enough, it's that we reward treacherous behavior so the system is never going to work for the people.
Of course not. Unconstitutional means something more like knowingly done without the authority and against the wishes of those you supposedly represent.
The things being done in the name of enforcing copyright and other monopolies are specifically stifling "The progress of Science and useful Arts".
This is the problem with copyright and patent law at all. We're not actually helping the creators, we're giving some of them (those who jump through certain hoops, and meet arbitrary requirements) a letter of marque with which to enforce the law on their own and presumably make enough justify the process. While intended to let a little guy claim his own these invariably wreak havoc in the wrong hands.
If we did what RMS suggested years ago we could be straight-up paying creators of popular works based on self-reported usage. And it would totally rid us of the need for DRM, and thus the need to legally support DRM, etc, by being based on a copying is encouraged because it helps the people model.
Of course we'd need administration to track the creator of certain things, like lolcats and other casual works, and pay them, and arbitrate ownership disputes when two people claim a work, etc, but that's just a fraction of the bureaucracy we already have in place.
The entire system of monopoly grants, and the bureaucrats (janitors, clerks, judges, and lawyers), the lawmakers, and the companies who exploit the cracks, can all just dry up and blow away if we decide to truly promote progress.
