Brian,

Thanks for your insightful comments on my essay. I intend to incorporate them into a revision.

With respect to your essay, I agree with your position. I particularly think that your distinction between copyright law, which provides for a fair use exception, and real property law, which does not is valid and controlling with respect to the terms of the DMCA. Expanding on that idea, it seems that the court in Universal City Studios v. Corley 273 F.3d 429 (2d Cir. 2001), for example, also short-changed the overly burdensome aspect of First Amendment case law with respect to the DMCA. In other words, even if one accepts that some unprotected speech, i.e., speech that would violate copyright law could permissibly be curbed by the DMCA, it seems certain that such Act also curbs and chills protected speech, i.e., speech that constitutes fair use. See Board of Education v. Pico, 457 U.S. 853, 874, n.26 (1982) (“We have recognized in numerous precedents that when seeking to distinguish activities unprotected by the First Amendment from other, protected activities, the State must employ ‘sensitive tools’ in order to achieve a precision of regulation that avoids the chilling of protected activities. See, e. g., Speiser v. Randall, 357 U.S. 513, 525-526 (1958); NAACP v. Button, 371 U.S. 415, 433 (1963); Keyishian v. Board of Regents, 385 U.S. 589, 603-604 (1967); Blount v. Rizzi, 400 U.S. 410, 417 (1971). In the case before us, the presence of such sensitive tools in petitioners' decisionmaking process would naturally indicate a concern on their part for the First Amendment rights of respondents; the absence of such tools might suggest a lack of such concern. See 638 F.2d, at 416-417 opinion of Sifton, J.).”). Therefore, the DMAC as written would seem to violate the First Amendment.

-- BrettJohnson - 20 Nov 2009