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EFF.org: 46 Law Professors Say DMCA Unconstitutional

Jan 29, 2001, 16:58 (23 Talkback[s])

[ Thanks to Bryan Taylor for this link. ]

"Amici are law professors who teach and write about intellectual property law at law schools within the United States . We care deeply about the fundamental constitutional principles underlying United States intellectual property law, and are committed to ensuring that intellectual property law continues to develop in accordance with these principles. We have no interest in the outcome of this litigation except as it pertains to these concerns. This case raises a number of important questions concerning the interpretation and constitutionality of the Digital Millennium Copyright Act's (DMCA) provisions barring the manufacture, importation, and distribution of technologies capable of circumventing technological protections applied to copyrighted works... (hereinafter the "anti-device provisions"). We write only to address whether the anti-device provisions are a proper exercise of congressional authority under the intellectual property power, the commerce power, or the power to enact laws that are necessary and proper to effectuate these other powers... We believe that they are not."

"SUMMARY OF ARGUMENT
Congress may legislate only pursuant to a power specifically enumerated in the Constitution. Neither the text nor the legislative history of the DMCA indicates which power Congress relied on to enact the anti-device provisions. Even if Congress had specified a particular source of constitutional authority, however, it would not matter. The DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers. They prohibit devices without regard for originality, duration of copyright, or infringement of copyright in the underlying, technologically-protected work; therefore, they are not a valid exercise of the intellectual property power. Nor are they a lawful exercise of the necessary and proper power or the commerce power, because they contravene specific limits on Congress' power under the Intellectual Property Clause. As a separate ground of invalidity, the anti-device provisions also violate limits on the scope of copyright protection required by the First Amendment."

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