Circumvention and circumvention tools are prohibited regardless of whether there is any underlying infringement, e.g. preventing an excerpt from being taken for the purpose of criticism. In general, fair use is required to square copyright with free speech, but circumvention for the purposes of fair use is prohibited.
More than that, it prohibits you from telling someone how to circumvent DRM, even if the purpose of doing so is just to, say, watch a movie they legally purchased on the device of your choice.
Banning secret numbers is dumb, but it's also the part of the law which is the most completely ineffective. Do you think you can find a copy of DeCSS on the internet? Of course you can.
The actual problem is the fair use problem, because it prevents you from e.g. creating a third party Netflix or Twitter client without the corporation's approval. Which in turn forces you to use their app and puts them in control of recommendations, keeps you within a walled garden instead of exposing you to other voices, etc. It's a mechanism to monopolize the marketplace of ideas.
Of course, Apple et al have turned this against the creators in order to extract their vig, which is a related problem.
Courts have never equated code with speech in such a way that it’s protected the same way as, say, political speech. People have been making the argument that “code is speech” (without understanding that not all speech is treated alike by our legal system) since DMCA was still being drafted 20+ years ago, but the legal system has never seen it that way.
> the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional.
Obviously it's impossible to cover all cases in a HN comment. I was perhaps a bit too broad when I suggested that the legal system doesn't treat code as speech. It does, sometimes; but even when it does, not all speech is treated alike for the purpose of legal analysis.
In the Bernstein cases, the Government was trying to squelch the author from publishing code that he personally wrote, that had scientific expressive value, and of which the Government required prepublication review, and the Ninth Circuit held:
"We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech."
The Court, as you can see, was trying very hard not to declare some sort of framework or test to be applied to future cases.
This reply doesn't seem responsive to the issue. It's not just whether you can censor someone from publishing code -- that's a separate problem. It's whether the law can prohibit circumvention even when the copying is fair use -- or when the same technological protection measure is locking away works in the public domain.
We’re talking about freedom of speech here, so First Amendment law is on point. There’s no other mechanism in our legal system than the Constitution that would prevent DMCA, including its anti-circumvention provisions, from having full force and effect.
Similarly, absent some Constitutional protection, states can restrict who can purchase lock picks.
It obviously doesn't, because the constitution is by definition whatever the supreme court says it is, yet by assumption the law in question hasn't been tossed. However, notice that the GP said "freedom of speech" and not the first amendment. Perhaps they understand the former to be more expansive than the latter.
The DeCSS case actually went to court (Bunner case), though it wasn’t about the T-shirt. It was a civil case based on trade secret law, not DMCA. The trial court assumed that sharing a trade secret without the permission of the secret’s owner is unlawful. That assumption wasn’t challenged.
That law is consistent with trade secret law in general. The First Amendment does not require trade secrets to lose all protection. If it did, you could freely disclose your own employer’s secrets without penalty.
No, I cannot, if I know or have reason to know it is a trade secret. (The misconception that the law allows the equivalent of "secrets laundering" is still far too pervasive.)
The Uniform Trade Secrets Act (the law in most states) defines misappropriation as:
(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(ii) disclosure or use of a trade secret of another without express or implied consent by a person who
(A) used improper means to acquire knowledge of the trade secret; or
(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
(I) derived from or through a person who had utilized improper means to acquire it;
(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) before a material change of his [or her] position, knew or had
reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
> Yes; in order for trade secrets to be protected, they have to be secret.
This is not true. See the Uniform Trade Secrets Act for the full text. People who know or have reason to know that the information is a secret are bound by the law, and the definition of "trade secret" does not require that the information never have been disclosed to an unauthorized person.
The Copyright Clause in the Constitution grants Congress the power to create copyright statutes, but does not itself create copyright. Federal copyright statutes defer to the First Amendment when they conflict. Copyright (a first-order speech restriction, where speech that infringes copyright is by definition unprotected by the First Amendment) is a bet: giving authors some extent of exclusive control over copying, distribution, and modification of their works will be better for freedom of speech than not giving any control. Fair use provides a flexible but imperfect safety valve for specific situations where the copyright bet might fail. Fair use is, by definition, not copyright infringement [1]. Therefore, I view the fair use statute (as well as the fair use doctrine prior to codification) as necessary for copyright law to avoid violating the First Amendment, and I believe that most restrictions on fair use rights are also restrictions on First Amendment rights.
The text of DMCA 1201 does not restrict fair uses [2]:
> (1)Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
However, in practice, DMCA 1201 has a plausible chilling effect on some fair uses and First Amendment protected speech. For example [4]:
> Opponents also say it creates serious chilling effects stifling legitimate First Amendment speech. For example, John Wiley & Sons changed their mind and decided not to publish a book by Andrew Huang about security flaws in the Xbox because of this law. After Huang tried to self-publish, his online store provider dropped support because of similar concerns. (The book is now being published by No Starch Press.)
Although the D.C. Appeals Court in Green v. Department of Justice found that the triennial rulemaking process for requesting exemptions to DMCA 1201 from the Library of Congress does not restrict freedom of speech [5], I emphatically disagree with the court in that regard because the Copyright Office summarizes the rulemaking process like this [6][7]:
> The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this ninth triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply for the next three years to persons who engage in certain noninfringing uses of specified classes of such works. This determination is based on the Register’s Recommendation.
Why would the Librarian of Congress need to provide exemptions when the "certain noninfringing uses" should already be exempted by the text of the DMCA 1201? That is, why would the granted exemptions include things that should already fall under fair use and the First Amendment in almost all cases, like "Audiovisual Works—Criticism and Comment—Filmmaking", "Audiovisual Works—Criticism, Comment, Teaching, or Scholarship— Universities and K–12 Educational Institutions", and "Literary Works—Text and Data Mining—Scholarly Research and Teaching" [6]? Why do advocacy groups have to affirmatively request and justify these 90%-fair-use exemptions which expire every three years? It sure seems to me like the writers of DMCA 1201, the Librarian of Congress, and someone at the Copyright Office observed or intuitively understood that DMCA 1201 would significantly restrict First Amendment protected speech in practice. Alternatively or in addition, said people observed or intuitively understood that fair use as an affirmative defense significantly fails to protect First Amendment protected speech in practice.
