Thank you for your comments, Stephen.

Re: (1) If the DMCA were modified as I suggested, it would reach far less than it reaches now. It would basically just make infringement penalties worse for those who circumvented protections on top of infringing. The DMCA would then target users more than decryption product makers. Your comment makes me think I should add a third option, one that alters the DMCA to still permit targeting circumvention tools that are accompanied with inducement to infringe (something along the lines of Grokster's approach perhaps). I don't favor this approach myself (see my next paragraph), but it's better than the current state of the DMCA.

Re: (2) Yes, as a matter of personal preference, I think the DMCA should be flat-out repealed. But I don't think that's going to happen, and we would be violating international treaties if we did so (not that this has stopped us from other legislative preferences).

Re: (3) In the context of the current rights-based IP system, yes, I think fair use is helpful. I have significant disagreements as to how some courts are handling the fourth factor of fair use, but that's probably going way beyond the scope of your question. Through this semester, I have found myself shifting towards the idea that we have it all wrong in our current copyright/patent system and that the zero-marginal cost world has really done all Professor Moglen has talked about. I am not there all the way yet, but I think about it each week. To that end, fair use is the best existing tool I know of for accomplishing the goals of mass (free) distribution until the broader system itself is revised.

Thanks again for the feedback. I will revise portions of the essay to try and address the ideas your questions raise.

-- BrianS - 20 Nov 2009