[madaxe_again]

It appears the EFF intend to fight section 1201 (thou shalt not circumvent) on first amendment free speech arguments, and on the idea that punishment for circumvention creates a chilling effect.

I don't think a court will buy it. They'll argue that 1201 protects the free speech of content creators, and that it works as intended - and they will cite the decss appeal, which was won by the media giants on the same argument. https://www.2600.com/news/112801-files/universal.html

[riskable]

I think part of the argument the EFF will make is that section 1201 is inherently in conflict with itself in regards to fair use (an argument which was explicitly not ruled upon in the DeCSS court case) and free speech (to a lesser extent). On the one hand the DMCA states that no one may make available any tool that circumvents a control that protects a copyrighted work while on the other hand it states (c 1):

    Nothing in this section shall affect rights, remedies, 
    limitations, or defenses to copyright infringement, 
    including fair use, under this title.

...and also (c 4):

    Nothing in this section shall enlarge or diminish any
    rights of free speech or the press for activities using
    consumer electronics, telecommunications, or computing
    products.

If a control exists and there's no mechanism to circumvent it how can those two paragraphs ever apply? You could make the argument that for certain works such as movies and music you have alternate means of obtaining the material but for something like a hardware device (e.g. pacemaker) there exists no mechanism other than circumvention tools for anyone to exercise their right of fair use. Therefore (in such cases) the anti-circumvention clauses of the DMCA are a violation of constitutional rights.

If circumvention tools cannot be made available then citizens are effectively barred from exercising their constitutional rights.

I firmly believe that the judge made a horrible mistake in the original DeCSS case when it was ruled that posting the source code of a circumvention tool does not constitute free speech. It damn well is free speech! It's literally just a bunch of words and numbers along with a few math symbols (code). I believe the idiocy of the ruling was made abundantly clear when people uploaded audio of themselves singing the source code aloud.

Apparently it's time to put that "Source Code is Free Speech" bumper sticker back on my car.

[reachtarunhere]

I am getting a customized T-Shirt with that message.

[mtgx]

The courts may not buy it, but I don't think it will be for the reason you say (protecting authors' free speech).

I think the argument against that would be "the authors are free to protect their content, but users can't be forced to use that protection", similar to how someone is allowed to insult you, but you can't be forced to listen to those insults.

In other words, content owners will be free to use whatever DRM mechanism they wish, but it wouldn't be illegal for someone to break it, if they can do that. And that's basically EFF's argument, too.

I think this is similar to how some Courts have said that advertisers are free to show ads up in your face, but you're also totally free to block them. Maybe the EFF can use that argument in Courts as a more "practical" analogy to make the judge understand.

[6stringmerc]

In a previous discussion, I was informed of a mistaken assumption of mine: There was a case where Section 1201 was ruled as more applicable than Fair Use. It's my belief - and apparently questionable in reality - that Fair Use that passes the four-factor test should absolutely be exempt from DMCA restrictions. If the EFF case can somehow convince the court that the chilling effect is real, I will be thoroughly impressed. What I mean by this is I think competent defense will point out that the Internet is awash in DMCA violating individuals engaged in Fair Use activities (commentary, parody, etc) and the merit of the DMCA is to curtail incentive to engage in infringement on an industrial scale.

[abritinthebay]

> the merit of the DMCA is to curtail incentive to engage in infringement on an industrial scale.

But that is not what the law says. It is written in much more broad, general, terms. If they get them to say that in court then it would be a huge step forward.

[6stringmerc]

I'm all for it! I want the law clarified, not completely tossed out. The expression "throwing the baby out with the bath water" is what I somewhat believe to be at play here.

[nathanlied]

I agree fully. We need a big, BIG revamp of copyright laws, but that's "The War", this is -a- battle in that war, and in order not to fully alienate the 'other side', we must be aware that large-scale commercial copyright infringement, with our current system, is really, really bad.

Getting the courts/legislators to make the anti-circumvention clause only apply to commercial efforts, instead of absolutely anyone and anything (including researchers, oftentimes), would be a great victory.

[Sleaker]

DRM doesn't solve copyright circumvention at all. Accessibility to content is what does that.

[abritinthebay]

> I want the law clarified, not completely tossed out

I'm honestly fine with either, but yes, either way it's a win.

[6stringmerc]

I look at 1201 and 512 as intertwined. Either both exist and balance each other out, but taking away one or the other seems genuinely unfair to me.

My perspectives tick off both camps, Content & Tech, because I see both of them using the same dirty playbooks and hiding their motives behind talk of "artists" or "customers" or whatnot.

[astazangasta]

How is this possibly about the speech of content creators? That implies I'm obliged to listen whenever anyone speaks.