On Sunday, September 16, 2001, at 04:51  PM, Noel J. Bergman wrote:

> Andrew,
>
>> When you are able to cite a provision that makes it illegal merely to
>> discuss circumvention technology, in or out of academic research, I'll
>> lead the fight to invalidate it.  No doubt Judge Whyte's injunction in
>> Remierdes was overbroad -- the question before the Second Circuit -- 
>> but
>> that language can't be found in the statute.  No doubt Dmitry Sklyarov
>> gave a speech prior to his arrest, but he was not arrested for giving a
>> speech.
>
> IIRC, you are a lawyer.  Would you please comment on this article, 
> wherein a
> Dutch researcher states that he will "not be publishing his findings 
> out of
> fear of the legal ramifications."

I don't know a great deal about his research, but his remarks appear to 
me unfounded as a legal matter.  I am, of course, concerned about the 
chilling affect.

> http://www.wired.com/news/politics/0,1283,46091,00.html
>
> Profession Felton has made similar comments.

Indeed, he is presently pursuing, thanks to the EFF, a declaratory 
judgment action against RIAA to determine whether or not DMCA would make 
such conduct actionable.  At present, the position the RIAA has taken in 
its Motion to Dismiss is that the case should be dismissed precisely 
because they will not and cannot use DMCA to stop Felton from speaking.

> This is the kind of thing that people are talking about, when they 
> refer to
> censorship.

I am VERY alive to these issues, and you will find that I have been 
fighting on the "right" side.  Our complaints, however, will seem thin 
and hollow whining unless we ground them in fact and law.  I fiercely 
fought the legislation when first proposed, and have been working 
against it since.  It is wrong for many reasons.  It just doesn't do 
what you are saying it does.

> If they wanted to pick up Sklyarov because of a program he
> worked on, they could have picked him up at the airport, or refused him
> entry to the country.  Instead, they picked him up after he spoke.

RTFI -- he is charged with trafficking contraband software, not for 
talking about it.  If he committed the crimes as alleged, they can pick 
him up whenever they want to pick him up.  With all due respect, I am 
unimpressed by an argument that a statute is unconstitutional based upon 
the timing of a speech.  (If they wanted to censor his speech, they 
could have picked him up during, or afterwards.)

The problem is not that they are punishing speech as a matter of 
constitutional law, but that they are treating the free disclosure of 
software as contraband as a matter of policy and law.  (There are some 
First Amendment questions raised here, but however interesting they may 
be, they are far more attenuated and theoretical than suggested by the 
previous posts.)  To the extent they do overreach against mere speech, 
those issues will be fairly addressed by the Courts, as applied.  
However, that by itself will not get the statute overturned -- we need 
to convince the Congress that the policy underlying DMCA is misguided 
and incorrect -- that is our best chance for seeing meaningful change in 
our time.

> I seem
> to recall reading a comment form a gov't prosecutor that he wanted this 
> case
> to test the DMCA provisions.

No doubt they will -- no doubt they will.