> There is no difference; access control gives you de facto use
> control. I think Congress approved the DMCA to do exactly what the
> studios and the record companies who contribute to their campaigns
> wanted the DMCA to do. The notion that Congress passed the DMCA to
> benefit consumers is laughable.
What you describe is a pretty sad state of affairs. You are probably accurate. I don't see how anyone could respect such a law.
> Congress asserts that the DVD players are being regulated under the
> Commerce Clause power, not under the Copyright Clause.
The commerce clause does not authorize Congress to amend the Constitution to remove the restrictions of the copyright clause or to not follow the central purpose in granting copyright power to Congress. I would argue that a commerce clause copyright protection is preempted by the copyright clause.
Trademark law is an execution of commerce clause power, but the "functionality doctrine" there says that you cannot trademark features with use because that would intrude on the patent clause. Qualitex Co. v. Jacobson Products Co. (1995)
Bankruptcy laws must be uniform because the bankruptcy clause says so even though the commerce power standing alone would allow non-uniform bankruptcy laws. Railway Labor Executives' Assn. v. Gibbons, 455 U.S. 457 (1982).
Copyright has a special ability to restrict speech because it textually refers to providing exclusive rights to writings. How does the commerce power avoid being chopped to bits by the First Amendment?
> that monopolies are bad, but Congress has the power to abolish the
> Sherman Act completely and allow whatever monoplies it wants to.
"Allow" does not equal "create". IP is governement created monopoly.
> It IS a made-up form of protection. ALL forms of protection are made
> up, so I fail to see how that condemns it. I don't think it is
> "totally at odds with the Constitutional purposes for intellectual
> property"; at worst it is partially inconsistent with some of the
> purposes. It may be totally at odds with the stated purpose, but
> that doesn't make it unconstitutional either.
Copyright has one purpose -- to promote the progress of science and arts. The granted monopoly so created must serve that public interest accordingly. The words "partially inconsistent with some of the purposes", seem apologetic.
> Again, I don't like being put in the position of being the defender
> of the DMCA here. I don't like the DMCA. I think it's bad policy.
> But I don't think it is unconstitutional, and I think public domain
> advocates are being unrealistic if they think the courts are going to
> save them from Congress in this instance.
If the courts go the wrong way, I think you'll see a lot of programmers ignore the courts and it will be a pure enforcement issue and it will fail, although it will cause a lot of damage first. Also, many of these hackers aren't in the US, and don't like US companies anyway. I do not think the US governement is powerful enough to stop "file sharing". The internet is a file sharing tool. It'll be fun to watch them try for a while. It will probably generate some innovative technology.
>> [reverse engineering]
> I agree that is the weakest part of the opinion.
I thought the weakest part of the opinion was his O'Brien analysis. I'm sorry, but downloading software is not symbolic conduct. His arguments were *all* refuted by judge Fletcher in Bernstein v. USDOJ. If functionality is conduct, then speech recognition software will soon render all verbs subject to only intermediate scrutiny. There's no way the DMCA is content-neutral either.
I expected him to take an "aiding and abetting using speech" approach, which I think also fails, but it's a much better try.
> Copyright isn't stopping the author from publishing his own code.
> The DMCA is stopping them, and despite the name, the DMCA is not a
> copyright law. Their code IS original expression; but it is also a
> functional machine.
Code simply is NOT functional until it is compiled and installed on a physical device capable of executing it. Your logic would tell me that a cooking recipe or a musical score is a functional machine. I don't see any possible way to define "machine" so that a sequence of ascii characters is one. If you can memorize it, it isn't a machine.
Oh and even if you grant that it's a functional machine, so what. The grooves on a record actually ARE a functional machine. Do records suddenly drop to intermediate scrutiny? O'Brien allows regulation of non speech elements of actual conduct, not potential conduct. And then only if there are incidental impacts on the speech elements. If you admit code has some of both, you'd have to tell me how to divorce the two before I could agree to apply O'Brien.
> Software can be treated differently from other forms of expression
> because software has functional aspects that can lawfully be
> regulated, regardless of the expressive aspects that are protected.
> I can burn a flag to express a political point of view; but I can't
> burn the White House to express the same political point of view.
> The First Amendment protects freedom of speech, not freedom to
> program a computer to do anything that you want. A computer virus is
> also a form of expression; that doesn't make distributing it lawful.
Software without hardward has no functional aspects at all. It might communicate "functional concepts" or "implementable ideas", but it simply does not have functionality. If I write code in a language that has no compiler (as is common in algorithms textbooks) does that alter your opinion? What if I don't know if there is a compiler? What if I just don't have one with me?
BTW, you can distribute a computer virus as long as you don't intentionally help it to execute on someone's machine thereby causing harm. If I want to write a virus checking program and I ask people to send me viruses to have it check for them, would you say sending the virus to me is illegal? How about if I fax the virus code to you?
Can I send the virus to the vendor so they can fix the security flaw? What if it's linux? Can I post the virus on the kernel mailing list so the whole world can read it? Can I post an exploit to bugtraq? "Full disclosure" is the most effective security policy. Imagine that, the First Amendment actually works. Science loves examples.
> The criterion is simple: forms of communication that also constitute
> the functional means of operating a machine can be enjoined.
Every scientific procedure fits your description, though. Sheet music, too.
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