May 6, 2003
Constitutionality of S-DMCAs
Greplaw (via Tech Law Advisor) brings up an interesting question: are the S-DMCAs unconstitutional?
This indeed is worth researching – I’ll try to read up on the relevant issues. Please, everyone, point me in the right direction. Where should I start? What specific powers / federal laws should I look at in terms of preemption? Commerce? Perhaps FCC regulations of telecommunications?
Kevin’s original post mentions that Congress has already legislated in this area. Well, have they? Are we talking about the DMCA here? And, if so, can we distinguish the two laws because one talks about copyrighted works and one just generally targets all video/audio transmissions? If that means protecting video/audio under state enforced contracts, does that create a preemption problem? To what degree is preemption solely trigged by attempts to frustrate national interests? Is federal law a baseline or a limit? (I guess I should figure that last one out before my ConLaw final. Heh.)
Re censorship – don’t these laws, at some level, resemble laws that ban anonymous speech? I immediately jumped to this angle because of the “concealing communications” language in the bills.
One key thing to remember: be careful of thinking of this in terms of copyright. These were not legislated under any copyright powers because the states have none. They focus on communication devices and transmissions, not copyrighted works. It seems Bowers might be relevant in this area – even without mentioning copyrighted works, the S-DMCAs will inevitably involve restrictive contracts that give added protections to copyrighted works.
Filed by Derek Slater at 11:17 am under General news
1 Comment
I still may be off base — but if we think of this in terms of Bowers v. Baystate — the states are using contract law to enforce shrink-wrap, but it should still be pre-empted by copyright. Similarly here – although they may be enacting the legislation under telecom law or what have you — their intent is to protect copyrights….