Also Tim, why is it even necessary for any firm to reverse engineer FairPlay. An MP3 maker can simply negotiate its own licensing deals with music labels. So to say that the DMCA deters innovation, because it may prevent an instance of reverse engineering of a popular product/service is a bit off.

No, Noel. Tim’s point is that the technical barrier is easily overocme, as any regular reader of Ed Felten’s blog would know. That is a fact.

However, when a software engineer like Dmitry Skylarov gets arrested because he figured out how to break a copy protection scheme and present his results, we have, essentially, an example of DMCA removing our freedoms. There is no such thing as a trivial removal of the freedom of speech.

That is what DMCA is:a ‘legal’ means of removing freedoms.

You’re talking about two things: technical barriers and legal barriers. You also assume MP3 player firms have to reverse engineer iTunes for their customers to get premium content. These are not the types of arguments to set on top of a narrow reading of the case law.

When a major vendor releases an MP3 player that can play iTunes songs and doesn’t get sued by Apple (or successfully defends itself against a lawsuit by Apple), then I’ll believe you that 1201(f) is an adequate safeguard for lawful reverse engineering. The iTMS has been on the market for nearly 4 years, and as far as I know, no such product has been released, despite the fact that it would be an extremely popular feature.

I ask because many of the cases you talked about set out quite clear guidlines on why acts of reverse engineering were not protected by Section 1201(f)- 1)because the resulting product infringement the Copyright Act or 2)because the intent of the DRM system was broken by the finished product (the interoperable product enabled unauthorized uses). Fewer DMCA cases than you suggests have have declared the act of reverse engineering illegal under Section 1201.

If you want to repeal the DMCA because you think Section 1201(f) prevents reverse engineering for interoperability, your arguments don’t support that. Reverse engineering happends EVERY DAY in the industry! On the other hand, if you merely want to safeguard tinkering, your arguments are less concerned with innovation than they would be if you were worried about reverse engineering for interoperability.