DMCA 1201 should be repealed hard and never allowed back.

Other countries will only thank US for being the first to dump it, even if it will anger DRM proponents who like to write such corrupt laws.

1. The restriction is necessary to a "compelling state interest"; 2. The restriction is "narrowly tailored" to achieving this compelling purpose; and 3. The restriction uses the "least restrictive means" to achieve the purpose.

So, I can give you some spoilers: copyright is explicitly mentioned and authorized by the US Constitution, it even gets it's own separate clause. That means copyright is automatically a compelling state interest, and it follows that if we have code that enforces the law, we also have a compelling state interest in protecting that code, too. The EFF's case (and, more generally, any constitutional challenge to DMCA 1201) is going to hinge on the 2nd and 3rd questions of the strict scrutiny test - could they reach the same goal of automated copyright enforcement with a narrower, less restrictive law?

Regarding your particular objections to treaty negotiation, the WIPO Copyright Treaty's undemocratic negotiation process is immaterial to constitutional questions. This is because the US Constitution is explicitly opposed to that. It says the President negotiates treaties and the Senate consents to them. It provides no provision for further democratic control in international relations. In other words, international law is inherently and constitutionally undemocratic. Think about what it means for that to NOT be the case: we'd need every treaty to have a corresponding election in which the citizens of both countries have an up-or-down vote. Very few treaties work this way; the EU sits comfortably at top-of-mind but that's about it.

So whatever was authorized for copyright, can't just automatically legitimize DMCA 1201 which is an overreaching prohibition (which is ironic, since what makes DRM itself unethical is that it's an overreaching preemptive policing).

If DMCA 1201 just forbade breaking DRM for copyright infringement, then it could be different. But it's not doing that, so it has to be repealed.

> the WIPO Copyright Treaty's undemocratic negotiation process is immaterial to constitutional questions.

This is important for showing the corrupt nature of both DRM proponents and policy around DRM. It is undemocratic to use treaties as a backdoor to control legislative process. It's simply corruption. And if it's the nature of treaties to be undemocratic, then there should be even a stronger to push against using them to subvert legislation.

That's probably the only reason why DMCA 1201 would pass a strict scrutiny test at all - it's evidence of narrow tailoring.

BTW, what you're describing with treaties has a name: it's called policy laundering.

But that's not what DMCA 1201 is about though, it's just a trick it's using. It's about forbidding DRM breaking [on a copyrighted work]. What if breaking DRM has no bearing on the copyright itself? I.e. it doesn't affect it because nothing is infringed. DMCA 1201 still forbids it. So it's clear that it's wider than simply being about copyright and that's exactly the problem with it - being overreaching and forbidding perfectly legal things that copyright should have no business touching.

DRM proponents realize it very well, and they abuse DMCA 1201 to extend copyright law into any area they want, as long as they can slap any kind of copyright + DRM on it. It basically gives them a rogue lawmaking tool that doesn't need to involve actual legislators.

Like for example forbidding one to switch mobile carriers because it involves breaking DRM. Nothing really to do with copyright - it's about controlling the market. But they use DCMA 1201 for it.

So DMCA 1201 is utter garbage and it's not only corrupt, it's clearly easily abused.

> BTW, what you're describing with treaties has a name: it's called policy laundering.

Yep, that's exactly the origins of DMCA 1201, so I'm always surprised when anyone tries to defend such clearly corrupt law. That's basically being proponents of corruption.