,----[ Richard Stallman rms@gnu.org ] | Whether PlayFair would be considered legal in the US is a hard | question, given the details of what it does. I think it is safer to | host it outside the US, in countries where there is really no law like | the DMCA. `----

,----[ Anand Babu ab@gnu.org.in ] | Fighting DMCA is no easy task. `----

It never has been, as the US Supreme Court has struck down legislation as unconstitutional in only a little more than two dozen cases in the past over 200 years. But we are in good company, and I would like to share a few cases hoping that they can keep our spirits high.

Marbury v. Madison 2 L. Ed. 60 (1803) also reported at http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm is always traditionally cited for the proposition that courts have the power of judicial review - to strike down unconstitutional legislation. Chief Justice Marshall observed in his landmark judgement, "It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it".

Long and well established? Many lawyers like Alexander Hamilton were at that time hammering the concept of judicial review into judicial consciousness.

During a Revolution, North Carolina had confiscated and sold tory estates; to protect the new owners, the legislature enacted that in any action to recover confiscated land, the courts must grant a motion to dismiss the suit. Bayard brought such a suit, and Singleton made a motion for dismissal. In this case of Bayard v. Singleton (1787) instead of granting the motion, the high court of the state delayed decision and recommended a jury trial to settle the issue of ownership. The legislature summoned the judges before it to determine whether they were guilty of malpractice in office by disregarding a statute. The legislature found no basis for impeachment but refused to revise the statute. On a renewed motion to dismiss, the court held the act void, because "by the constitution every citizen had undoubtedly a right to a decision of his property by trial by jury. In defense of judicial review, the court reasoned that no statute could alter or repeal the state constitution, which was fundamental law, and submitted the case to a jury.

In the Ten Pound Act Case (1787), a court in New Hampshire ruled that an act conflicted with right to trial by jury, and the state legislature demanded impeachment of judges. The judges courageously stood by their decision, and reaffirmed it in another case also.

The past history of judicial review shows that even Judges have had to risk their offices, to boldly defend the constitution that guaranteed rights and freedoms. None of our freedoms were won easily and the fight can sometimes be long and tedious like the issue below that led to a string of cases:

Dr. Wilder Tileston, a Connecticut physician wanted to challenge the constitutionality of that state's statutory prohibition of the "use of drugs or instruments to prevent conception, and the giving of assistance or counsel in their use" and this case is now known as Tileston v. Ullman (1943). Having lost his appeal in the Connecticut Supreme Court of Errors, he endeavoured to get Federal Supreme Court review. The Court observed that Dr. Tileston `alleged that the statue, if applicable to him, would prevent his giving professional advice concerning the use of contraceptives to three patients whose condition of health was such that their lives would be endangered by child bearing, and the appellees intend to prosecute any offence against the statute.' It was also contended that the statute was violative of the XIV Amendment of the Constitution which prohibited a state from depriving any person of life without due process of law. The Court held that the proceedings in the state courts present no constitutional question which appellant has standing to assert and the appeal was dismissed.

Again in 1961, the opponents of the Connecticut statute tried challenging the law, this time with patients and a physician as plaintiffs. This was Poe v. Ullman and Buxton v. Ullman (381 US 479 [1965]), wherein, Justice Frankfurter, by a narrow majority of 5:4, held the controversy not to be fit for adjudication, as no one had in fact been injured, jailed or fined under the said law, and held the `Court cannot be umpire to debates concerning harmless, empty shadows".

The statute's opponents were not mollified and became more determined to challenge it. They opened a birth-control clinic in New Haven, advertising its existence, and the state decided to prosecute them. They finally had `standing'. This was in Griswold v. Connecticut (381 US 479 [1965]), where the Supreme Court declared the law to be an unconstitutional infringement not only of Amendment XIV, but also of Amendments I, III, IV, and IX, by way of `penumbras formed by emanations'.

Even simple pleasures of life like using a condom, listening to music, or writing code cannot be taken for granted. Sometimes legislatures have other plans for us, and there is no other alternative but to challenge their constitutional validity before the courts. When we have proper e-Governance programs in future, these legislative acts will refuse to compile returning errors and abort before getting life to start harassing people.

Regards, Ramanraj.