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Super-DMCAs unconstitutional?
posted by scubacuda on Monday May 05, @01:12PM
from the dept.
Censorship darkonc writes "I've been thinking about what slashdot refers to Super-DMCA. It hit me that they may actually be illegal.

Consider that The Internet allows almost anybody with a connection to put up a web server )or a kaaza server, or whatever) and essentially become a mini-publishing house. In that context, these super-DMCAs that prevent users from setting up any service that their ISP doesn't explicitly OK are like outlawing printing presses, and allowing some random party to regulate the use of them. Simply put, this is censorship.

Although the constitution allows capitol hill some limited rights to censor people in the name of copyright, I don't think that it gives any such rights to the states. Even if it did, these laws are so overreaching as to go far beyond what the copright exception was intended to refer to. If that's the case, then -- to the extent to which they limit people's right to speak and publish their works -- these super-DMCA laws may be unconstitutional. Thoughts?"

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    Super-DMCAs unconstitutional? | Login/Create an Account | Top | 1 comments | Search Discussion
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    Yes, I would say so (Score:1)
    by TomWiles on Monday May 05, @09:43PM (#675)
    User #396 Info
    These laws are being written by States in an area of pre-emption.

    I refer you to the Quade case (circa 1987-88) which effectively killed the enforcability of Shrink-wrap-licenses. This is very different from the DMCA and the current Copyright Law. The Supremes toed a very fine line in the Lessig case. Their judgement was based solely on the powers given to Congress. They ruled on Congress's authority to write the law, not on the strict legality of the law itself. There position was that it was NOT the duty of the Supreme Court to prevent Congress from writting bad laws. I think that this view has to be respected.

    The federal courts have no such mandate to cut the State legislative system that type of slack. Historically (I believe), State laws that infringe Constitutional guarantee's tend to be struck down.

    Am I wrong?

    Tom

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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