On Sunday, September 16, 2001, at 02:06  PM, Noel J. Bergman wrote:

>>> This is exactly the reason that it is necessary for us to be actively
>>> engaged in politics and discussing politics.  Perhaps a separate list
>>> for the discussion of the political climate as it relates to Squeak is
>>> warranted.  It is my opinion that legislators do not have the 
>>> authority
>>> under the Constitution of the United States to pass such legislation.
>
>> They already passed the DMCA, which criminalizes previously-free 
>> speech.
>
> They can pass whatever they want.  It needs to be challenged in court.  
> That
> is why they are pursuing the case against the programmer who published 
> the
> flaws in "secure" PDF; both sides need Judicial review of the law.  I am
> hopeful that large portions of the DMCA will be struck down as
> unconstitutional.  You don't solve problems with technology by 
> preventing
> people from talking about them, and secure PDF is an oxymoron as 
> currently
> implemented.

I would like to see that happen as well, as a matter of sound 
intellectual property policy.  Don't hold your breath, however.

It is highly unlikely that DMCA is unconstitutional for failure of 
legislative authority.  Notwithstanding the apparently limiting scope of 
the Patent and Copyright clause, Congress is nevertheless empowered with 
plenary authority under the commerce clause (same article, same section) 
to regulate interestate and international commerce.  Even so, case law 
under the inquiry whether regulation promotes progress of the Sciences 
and the useful Arts applies the so-called "rational basis" test, which 
basically means that absent slam-dunk proof to the contrary, the 
judiciary will simply defer to the Congress that there is a rational 
basis for the law.  (In all of American jurisprudence, I'm only aware of 
one case where a law was held unconstitutional under a rational basis 
test.)

The theory has already been tested several times, and rejected twice by 
District courts.  It is presently (at least in theory) before the Second 
Circuit in the Universal v. Remierdes case.  Even there, only one Amicus 
Curiae brief gave the argument substantial attention.  If the Second 
Circuit reverses (a one in three chance I think), it is 1000 to 1, IMHO, 
that it will be on the First Amendment rather than Article I ground, and 
even then only with respect to the language of the particular injunction 
in that case.