Fighting DRM in HTML, again

Posted Mar 24, 2016 3:26 UTC (Thu) by jtc (guest, #6246)
Parent article: Fighting DRM in HTML, again

"... the DRM covenant is meant to put a halt to several of the nastier effects of DRM, such as copyright holders' ability under the Digital Millennium Copyright Act (DMCA) to sue anyone who discusses circumvention methods. "

If taken literally, it seems to me, enforcing the ability to "sue anyone who discusses circumvention methods" violates the 1st amendment of the US constitution. Am I missing something?

Fighting DRM in HTML, again

Posted Mar 24, 2016 8:58 UTC (Thu) by Karellen (subscriber, #67644) [Link]

AIUI (but, IANAL) there are a number of forms of speech that are not protected by the 1st amendment, one of which concerns conspiracy to commit other criminal acts. While idly throwing around ideas on how a hypothetical bank raid might be committed would not fall under these exceptions, the closer you get to actual planning, the closer you get to the exceptions. Unfortunately, the non-physical realm of computer crime means that idle discussion is closer to planning than it is in crimes like bank robberies. And the DMCA §1201 widens the exception as much as it possibly can, because "ZOMG! Think of the Chi^H^Hontent creators!"

Fighting DRM in HTML, again

Posted Mar 24, 2016 10:01 UTC (Thu) by dper (guest, #107851) [Link] (3 responses)

You are missing something. :-) All of copyright and patent law are contrary to the First Amendment. The basic idea behind copyright is from the Copyright Clause in the Constitution.

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

We may disagree as to whether this type of censorship is good, but that is another question. So, no, there probably is no First Amendment problem.

Fighting DRM in HTML, again

Posted Mar 24, 2016 17:17 UTC (Thu) by lxoliva (guest, #40702) [Link] (1 responses)

ladies and gentlemen, we have another victim of the nonsensical bundling of unrelated laws under a single confusing umbrella.

Although copyright might indeed stop you from communicating certain ideas in certain ways, which could be argued as contrary to the First Amendment, nothing whatsoever in patent law stops anyone from communicating ideas, even patented ones.

Fighting DRM in HTML, again

Posted Mar 25, 2016 15:09 UTC (Fri) by zlynx (guest, #2285) [Link]

Patent holders and courts seem to think that if the communication of ideas is too easy to use then it is somehow "contributing" to patent infringement.

Fighting DRM in HTML, again

Posted Mar 25, 2016 10:00 UTC (Fri) by Karellen (subscriber, #67644) [Link]

This does remind me of the legal theory^Whypothesis I have seen that, given that later amendments to the constitution override earlier ones, and that the copyright clause is in the constitution itself, your rights under the first amendment should necessarily take precedence over any author's rights under copyright. That is, all copying should be protected as an act of speech.

It's a nice thought experiment. The courts probably wouldn't see it that way, but I'd like to see someone try to use it anyway.