[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.