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.
