The DMCA Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.
The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public's fair use rights. Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal-use copies of movies they have purchased.
The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple has used the DMCA to tie its iPhone and iPod devices to Apple's own software and services.
The DMCA Interferes with Computer Intrusion Laws.
Further, the DMCA has been misused as a general-purpose prohibition on computer network access, a task for which it was not designed and to which it is ill-suited. For example, a disgruntled employer used the DMCA against a former contractor for simply connecting to the company's computer system through a virtual private network ("VPN").
What makes the Anthony Weiner story somewhat unique and thus worth discussing for a moment is that, as Hendrik Hertzberg points out, the pretense of substantive relevance (which, lame though it was in prior scandals, was at least maintained) has been more or less brazenly dispensed with here. This isn't a case of illegal sex activity or gross hypocrisy (i.e., David Vitter, Larry Craig, Mark Foley (who built their careers on Family Values) or Eliot Spitzer (who viciously prosecuted trivial prostitution cases)). There's no lying under oath (Clinton) or allegedly illegal payments (Ensign, Edwards). From what is known, none of the women claim harassment and Weiner didn't even have actual sex with any of them. This is just pure mucking around in the private, consensual, unquestionably legal private sexual affairs of someone for partisan gain, voyeuristic fun and the soothing fulfillment of judgmental condemnation. And in that regard, it sets a new standard: the private sexual activities of public figures -- down to the most intimate details -- are now inherently newsworthy, without the need for any pretense of other relevance.
