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 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.
Here's a well-cited document that might be worth a look: http://techlawadvisor.com/dmca/research.html