So this is totally bogus, again. Bonus points for the DMCA notice obviously not being written by a lawyer.
(a)(3)(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
[edited in response to correction by wtallis]
> (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
> (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
An implementation of the algorithm without the necessary key would still be a "component, or part thereof".
Phil Zimmermann asked this question in the context of export controls on "cryptography technology", i.e. the PGP software. MIT Press published the source code in 1995. But the US dropped its objections and this wasn't specifically tested in court (AFAIK, though similar questions were).
https://en.wikipedia.org/wiki/Pretty_Good_Privacy#Criminal_i...
The closest parallel was when 2600 Magazine was prevented from publishing DeCSS on their website by a court decision.
https://www.eff.org/pages/unintended-consequences-fifteen-ye...
There would be no test, it is plain and clear violation to prohibit it, just like the crytowars case, which is why the DOJ dropped it
You may think that but unfortunately in several cases either the plaintiff attempts to scare off the defendant(s) with the prospect of a court case, offering a blanket settlement to discontinue certain actions of the plaintiffs choosing, or if the plaintiff is about to lose the case they may drop it entirely to avoid setting a precedent against themselves.
You might ask how we reconcile this with Bernstein, where the first amendment arguments were doing so well. One answer is that because of the DOJ tactic you mention, Bernstein isn't binding precedent.
I think other answers are about "atmospherics": grad students asserting first amendment rights in software are more sympathetic than hacker journalists, even if both are ultimately pretty antiestablishment. Also, as someone else brought up elsewhere in this thread, the courts are probably more used to seeing government suppression of speech as a first amendment problem than suppression of speech through civil litigation by private parties. For instance, the courts surely hate the idea of "banning books", yet they're happy to issue an injunction against a book if they conclude it's defamatory after a libel trial.
So, we might have been better off if a first amendment challenge to §1201 had been raised for the first time in a criminal prosecution of an academic or mainstream journalist. Which indeed would probably never have happened because the DOJ would have been reluctant to go ahead with it. Everyone in the legal system is interested in picking cases of first impression tactically.
There's still ongoing work to challenge §1201 under the first amendment, but it's not as obvious as you suggest that it will work out.
Another comment in this thread made me check this and find out that it's actually controversial and not well-established that courts should do this. I don't know how that normally works in practice!
Certainly under most European circumvention prohibition laws there's no requirement for the distribution of the circumvention tool to be done electronically, so yes, you could definitely prohibit a book.
(And books are prohibited in the likes of the UK by courts all the time for libel at al so it wouldn't be hard to see happening.)
(*It's not that US courts can't find a book libelous; it's that the remedy in the US is monetary damages, not a sales ban).