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Abstract:
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Referring to the Digital Millenium Copyright Act and UCITA, the author writes: "The consequences for freedom of speech are disastrous. Copyright law has long acknowledged that restrictions on reuse of another's copyrighted expression are restrictions on speech. It has also acknowledged that some such restrictions frustrate rather than promote creative progress. For these reasons, copyright law forbids authors from controlling the uncopyrightable ideas or functional principles embodied in their work and allows others to make 'fair use' even of copyrightable expression for purposes such as criticism, comment, education, and research. The Supreme Court has indicated that these limitations on copyright are required by both the Patent and Copyright Clause and the First Amendment. trade secret law, meanwhile, does not prohibit the reverse engineering of publicly distributed products to discover embodied secrets, and the Court has said that federal intellectual property law requires this result.
"The DMCA and UCITA, however, contain no such limitations on the prior restraint of speech. On the contrary, both statutes seem designed for the express purpose of allowing private parties to suppress legitimate public debate about their products. The DMCA states that it does not limit fair use or other defenses to copyright infringement, but fair use is not a defense to the DMCA's provisions banning circumvention tools. UCITA contains a provision preserving courts' power to invalidate contract terms that violate 'fundamental public policy,' but the scope of that exception has traditionally been narrow."
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