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posted by janrinok on Saturday August 20 2016, @01:40AM   Printer-friendly
from the fight-back-begins dept.

Our friends at the Electronic Frontier Foundation (EFF) recently filed a lawsuit challenging Section 1201 of the US's Digital Millenium Copyright Act, which provides legal reinforcement to the technical shackles of Digital Restrictions Management (DRM). Defective by Design applauds this lawsuit and agrees with the EFF that Section 1201 violates the right to freedom of speech. We hope that excising Section 1201 from US law can be the beginning of the end for DRM.

DRM is regularly cracked, or "circumvented," by skilled technologists. Many of them make tools to automate the process, which, in the hands of the public, can be used to defang DRM on a mass scale. Frustrated by this challenge to their authority, the media lobby and their friends in government created anti-circumvention laws like Section 1201 and others around the world, to make it illegal to circumvent DRM or share tools for circumventing it. Since the 90s, these laws have propped up DRM. Hopefully, when 1201 is gone, circumvention tools will spread more widely and it will be so difficult to restrict users with DRM that companies will just stop trying. To make this a reality of course, others around the world will have to take up the torch from EFF and eliminate anti-circumvention laws that play the role of 1201 in their own countries.

It's certainly easier to implement bad security and make it illegal for anyone to notice than it is to implement good security.

Bruce Schneier

Copyright © 2006—2016 Free Software Foundation, Inc.

This work is licensed under a Creative Commons Attribution-No Derivative Works 4.0 license (or later version)Why this license?


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  • (Score: 3, Informative) by jelizondo on Saturday August 20 2016, @06:29PM

    by jelizondo (653) Subscriber Badge on Saturday August 20 2016, @06:29PM (#390646) Journal

    Indeed, the Constitution provides a mechanism, namely Art. VI [cornell.edu], second paragraph:

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    So you see, treaties made under the authority of the U.S. (by the Executive Branch, i.e., the POTUS) shall be the supreme law of the land, therefore, such treaties need to be ratified by the Legislative Branch to become binding.

    The problem is that a facilty (fast track) to sign and ratify commerce treaties is being used to impose a new law order on the U.S. (and all other signatory countries) without Congress or the Senate being able to really review what the hell they are ratifying. Such an extensive treaty, with significant impact on the body of law, needs to be reviewed by Congress and the public, not be a closely guarded secret.

    Being a secret treaty, the only rational action is to oppose it.

    Background info

    In the Montijo Award, the arbitrator stated that 'a treaty is superior to the constitution, which latter must give way. The legislation of the republic must be adapted to the treaty, not the treaty to the laws.' [Case of the 'Montijo': Agreement between the United States and Colombia of August 17, 1874, award of 26 July 1875, in John Bassett Moore, History and Digest of International Arbitrations to which the United States has been a Party (Government Printing Office Washington 1898) vol 2, 1421, 1440. (1875)]

    The Permanent Court of International Justice (PCIJ) found that 'a state cannot adduce as against another state its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.' [PCIJ, Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory, Series A/B, no 44 (1932), 24 ]

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  • (Score: 0) by Anonymous Coward on Saturday August 20 2016, @06:47PM

    by Anonymous Coward on Saturday August 20 2016, @06:47PM (#390657)

    So you are citing arbitors and courts outside the US for what the US law is? Even though the US has ignored treaties that violated the Constitution and has specific case law firm the US Supreme Court. But that doesn't mean that the US gets away with no consequences for violating a treaty. But maybe you became an engineer to avoid having nuance in your life.

  • (Score: 0) by Anonymous Coward on Saturday August 20 2016, @06:52PM

    by Anonymous Coward on Saturday August 20 2016, @06:52PM (#390662)

    You know you are citing language about how they preempt state law and ignored the post that showed how the Supreme Court interprets it in relation to the rest of the Constitution.

  • (Score: 2) by Justin Case on Saturday August 20 2016, @11:49PM

    by Justin Case (4239) on Saturday August 20 2016, @11:49PM (#390790) Journal

    1.

    This Constitution

    2.

    and the laws of the United States which shall be made in pursuance thereof

    3.

    and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;

    Interesting. Thank you. (I've read the Constitution but I don't have every clause memorized.)

    So there are potentially three sources of supreme law here.

    But #2 says "in pursuance thereof" which would seem to say that laws NOT made "in pursuance thereof" are not superior or even equal to the Constitution. As I would expect. Thus the Constitution still retains supremacy over other laws.

    For #3 it says "under the authority of the United States". Now where exactly does the United States get authority to do anything? From the Constitution, no? So while not quite so clear, this would still seem to assert Constitutional supremacy.

    I don't give a rats ass what various courts have ruled. They are obviously corrupting the original language, which, as already cited, is superior -- even to their rulings, because the Constitution established the judiciary in the first place!

    Again, if we were to accept that an agreement between states can overrule the Constitution, doesn't that pretty much let lawmakers out of the fence the Constitution was written to create? In other words, any law is fine, as long as you can get your buddy in some other country to agree he wants to rape his citizens too. That doesn't seem credible as original intent.

    • (Score: 2) by jelizondo on Sunday August 21 2016, @01:02AM

      by jelizondo (653) Subscriber Badge on Sunday August 21 2016, @01:02AM (#390808) Journal

      any law is fine, as long as you can get your buddy in some other country to agree he wants to rape his citizens too

      Bingo!

      The powers-that-be have found ways to do whatever they want to make a profit and to hell with me, you and everyone else.

      Don't believe it? How come Gitmo was created? How come we have torture by government agents? How come now it is harder and harder to use copyrighted material in what used to be called "fair use"? They don't give a rats ass, as you say, but their saying it is stronger because they have power.

      The language of the Constitution can be interpreted to mean the Constitution, the laws and the treaties are at the same level but in practice, laws and treaties deal with matters on which the Constitution is silent, for example, how much taxes you have to pay on what (think "sin" taxes) or if you need a license to drive a car.

      Now, most of the stuff is not contrary to the Constitution, for example, when under the TPP copyright terms are extended and service providers are obliged to "police" their users' content for copyright violations, there is nothing in the Constitution that forbids that from happening, however the normal process of law (introducing a bill, discussing it, passing it by Congress and Senate, signed by the President) is short-circuited and bam! you get a new law saying copyright terms are extended or that ISPs have to police content.

      The Electronic Frontier Foundation has a good explanation [eff.org].

      • (Score: 0) by Anonymous Coward on Sunday August 21 2016, @09:03AM

        by Anonymous Coward on Sunday August 21 2016, @09:03AM (#390952)

        Another AC told you about this [soylentnews.org] post. The fearmongering about treaties overriding the Constitution is just that: Fearmongering.

        Now, most of the stuff is not contrary to the Constitution

        Some of it might be on the federal level. The Constitution lists the powers that the federal government has, as well as few things it really can't do, and so if the Constitution does not give the federal government the power to do X, then it doesn't have the power to do X. Car licenses are state matters, for example.