[ 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.”