More regarding DMCA versus fair use

The 2600 Appeals Court decision is critical reading on the topic of the DMCA versus fair use Here's the problem with Balkin's "pony-hunt" in a nutshell, from that decision:

We need not explore the extent to which fair use might have constitutional protection, grounded on either the First Amendment or the Copyright Clause, because whatever validity a constitutional claim might have as to an application of the DMCA that impairs fair use of copyrighted materials, such matters are far beyond the scope of this lawsuit for several reasons. In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.

There's the "legal hack" at work. You're not accused of copyright infringement, you're accused of DMCA violation. The fact that access for the purpose of making a copy is deemed irrelevant. That's the trick. And if the Supreme Court can swallow "limited times" which are retroactive and finite-yet-unbounded, I'm unfortunately having a hard time seeing where they won't swallow that the DMCA hasn't "altered the traditional contours of copyright protection,", under the theory that it's not really copyright. That's why I call it a "legal hack".

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)