This is the same argument used to attack Linux sites that carry a program called deCSS that makes it possible to play DVD movies on Linux. It is the same argument that E-Commerce Weekly columnist Mike Godwin raised about Stephen King's recent e-book - originally available for only Windows machines. If someone wrote code to make it possible to read the book on Linux, then, as the law has been interpreted, the coder would have violated the DMCA.

In each case, the underlying use of the copyrighted material is not a violation of the copyright law. In each case, the use would either be granted, or considered "fair use." Copyright law does not limit the rights of the purchaser of a DVD movie, or an e-book, to play it on a certain machine. Nor would it limit (in my view) the right of a user to reverse-engineer a program to discover what sites that the program he has purchased is blocking. But liability under the DMCA does not depend upon whether the use of the copyrighted material is improper. The only question under the DMCA is whether the tools allow a person to get around the protection system.

The DMCA thus reaches more broadly than copyright law, and here then is the emerging conflict. Remember that slogan of copyright lawyers: There is no free-speech problem with copyright law so long as there is room for fair use. Before an act of use can constitute a copyright violation, the court must consider whether the use, in the context, is fair.

But the DMCA admits no such limitation. The question the anticircumvention provision asks is simply whether the copy protection can be avoided. Therefore, code that cracks a protection device is criminal under the DMCA even if the use of the copyrighted material that the code enables would be fair use.

There is something wrong in this. Copyright law is limited by the Constitution - it is a law regulating speech, and the First Amendment regulates laws regulating speech. Code that protects copyrights is not necessarily limited by the Constitution; code, Lessig notwithstanding, is not law, even if it functions like law.

But law that protects code that protects copyright is still law. And it, like copyright law, should be limited by the Constitution. If there is a fair-use right under copyright law, then as professor Peter Jaszi and others have argued, there should be a fair-use right under the anticircumvention provision of the DMCA. Just as free-speech rights get balanced under copyright law, so too should they be balanced under the copyright act.

But balance is unlikely when district courts believe they are protecting the morals of America's children. And balance has not yet been the norm when courts have been confronted with circumventing code. Instead, control has been the judicial norm - control built into code, backed up by a law that reaches further than copyright law itself may constitutionally reach. A law that circumvents, one might say, the protections the First Amendment was to provide.