[ewillbefull]

> you have no grasp of the legal issues involved

Let's have a thread about it then. What legal issues am I misunderstanding? It seems to me that the anti-circumvention provisions of the DMCA are rather unprecedented.

Brandenburg v. Ohio demonstrated that free speech protects abstract advocacy of force or law violation. The anti-circumvention provisions criminalize the distribution of not just software that can be directly used, but anything that serves as a tool to violate copyright. That could be a small number, a key, or even a description of how a DRM scheme operates.

I cannot imagine a constitutional basis for those provisions of the DMCA. What say you?

[shasta]

> The anti-circumvention provisions criminalize the distribution of not just software that can be directly used, but anything that serves as a tool to violate copyright.

I'm not a lawyer, but I'm going to speculate that if you upload image.bmp, a picture you took with your camera, that happens by coincidence to contain a key that can be used for circumvention, then you would not be prosecuted or convicted. In other words, it's not the number that's illegal.

[ewillbefull]

I'm not speaking about accidental violation of the provision, I'm even talking about intentional violation. Anti-circumvention provisions don't cover the copyrighted work, they don't even cover a derivative work. It's just suppression of speech that tangentially supports or encourages illegal activities, which the Supreme Court has ruled the government has no compelling interest in quelling.

A lot of this speech can take many forms. It can be blog posts delving into how some encryption scheme works, it can be keys that are derived mathematically from Sony's mistakes, and it can be software which may only incidentally be used as a tool to circumvent DRM. This does not survive strict scrutiny.

[adrianN]

But does it become illegal if someone (maybe not even you) points out that starting at bit 123094 you find the key to unlock your PS3?

[Natsu]

The courts seem to put copyright on a roughly equal level with the first amendment, so any censorship caused by them is considered to be by design.

http://gigaom.com/2012/07/30/censorship-ok-to-fight-copyrigh...

[wmf]

A non-lawyerly devil's advocate:

I would argue that a secret key by itself does not qualify as a circumvention tool and thus should not be banned by the DMCA. Unfortunately, by my reading the law does not agree with me and specifically bans distribution of a circumvention "device, component, or part thereof"; it seems like a key is a part of a circumvention device.

Looking at circumvention code itself, I would argue that such code should have no artistic or political expression when boiled down to its functional essence, in which case there is no meaningful free speech issue. If the code did have artistic or political aspects, arguably those aspects could be separated from the part of the code which performs circumvention. For example, the political opinion of being opposed to the DMCA can be easily expressed without using any code.