[schoen]

Unfortunately, there are cases in which courts said approximately that implementing an algorithm (especially an algorithm that is a secret¹) without permission can be a violation of §1201. Recall

  (a)(3)(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
  (B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

¹ yes, I know that it's weird to regard the algorithm as a secret when implementations are given out to the user

[edited in response to correction by wtallis]

[perihelions]

What happens if you print out the source code and publish it as a book? Can the courts prohibit a book?

Phil Zimmermann asked this question in the context of export controls on "cryptography technology", i.e. the PGP software. MIT Press published the source code in 1995. But the US dropped its objections and this wasn't specifically tested in court (AFAIK, though similar questions were).

https://en.wikipedia.org/wiki/Pretty_Good_Privacy#Criminal_i...

[roastedpeacock]

Do not think this has been tested under the DMCA statute unfortunately.

The closest parallel was when 2600 Magazine was prevented from publishing DeCSS on their website by a court decision.

https://www.eff.org/pages/unintended-consequences-fifteen-ye...

[syshum]

DMCA can not superseded the 1st amendment, sorry

There would be no test, it is plain and clear violation to prohibit it, just like the crytowars case, which is why the DOJ dropped it

[schoen]

The SDNY and Second Circuit rejected the defendants' first amendment arguments in the Corley case. That was one of the most upsetting events of that decade for me, but I would insist that the first amendment argument has been tried, and at least in that context and those courts, it lost.

You might ask how we reconcile this with Bernstein, where the first amendment arguments were doing so well. One answer is that because of the DOJ tactic you mention, Bernstein isn't binding precedent.

I think other answers are about "atmospherics": grad students asserting first amendment rights in software are more sympathetic than hacker journalists, even if both are ultimately pretty antiestablishment. Also, as someone else brought up elsewhere in this thread, the courts are probably more used to seeing government suppression of speech as a first amendment problem than suppression of speech through civil litigation by private parties. For instance, the courts surely hate the idea of "banning books", yet they're happy to issue an injunction against a book if they conclude it's defamatory after a libel trial.

So, we might have been better off if a first amendment challenge to §1201 had been raised for the first time in a criminal prosecution of an academic or mainstream journalist. Which indeed would probably never have happened because the DOJ would have been reluctant to go ahead with it. Everyone in the legal system is interested in picking cases of first impression tactically.

There's still ongoing work to challenge §1201 under the first amendment, but it's not as obvious as you suggest that it will work out.

[schoen]

> yet they're happy to issue an injunction against a book if they conclude it's defamatory after a libel trial.

Another comment in this thread made me check this and find out that it's actually controversial and not well-established that courts should do this. I don't know how that normally works in practice!

[roastedpeacock]

> DMCA can not superseded the 1st amendment, sorry

You may think that but unfortunately in several cases either the plaintiff attempts to scare off the defendant(s) with the prospect of a court case, offering a blanket settlement to discontinue certain actions of the plaintiffs choosing, or if the plaintiff is about to lose the case they may drop it entirely to avoid setting a precedent against themselves.

[Mindwipe]

> What happens if you print out the source code and publish it as a book? Can the courts prohibit a book?

Certainly under most European circumvention prohibition laws there's no requirement for the distribution of the circumvention tool to be done electronically, so yes, you could definitely prohibit a book.

(And books are prohibited in the likes of the UK by courts all the time for libel at al so it wouldn't be hard to see happening.)

[perihelions]

That's true, though that absolutely never happens in the US where GitHub is domiciled.

(*It's not that US courts can't find a book libelous; it's that the remedy in the US is monetary damages, not a sales ban).

[wtallis]

I'd be surprised if the courts actually held that implementing an algorithm was an act of circumvention. I expect they'd rather hold that to be in violation of a different paragraph:

> (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

> (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

An implementation of the algorithm without the necessary key would still be a "component, or part thereof".

[schoen]

Yes, thanks for the correction.