Re: [dvd-discuss] Bunner wins DeCSS trade secret appeal

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

The question is when the courts begin to realize that by following that 
type of reason, they actually exclude the very intellectual property they 
seek to protect or create a huge artificial artiface of rulings, cases, 
circumstances and contradictions when there is a simple alternative-it ALL 
is speech. Fortas used that argument in Gideon vs. Wainwright in the right 
to counsel. 




"Peter D. Junger" <junger@samsara.law.cwru.edu>
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11/01/01 04:06 PM
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        Subject:        Re: [dvd-discuss] Bunner wins DeCSS trade secret appeal


Bryan Taylor writes:

: Hmmm.... It's not all good. It appears that the Court's reasoning is 
based on
:  a
: differentiation between source and object code. It based it's decision 
on the
: source code form of DeCSS:
: 
: <quote>
: If the source code were "compiled" to create object code, we would agree 
that
: the resulting composition of zeroes and ones would not convey ideas. 
(See
: generally Junger v. Daley, supra, 209 F.3d at pp. 482-483.) That the 
source
: code is capable of such compilation, however, does not destroy the 
expressive
: nature of the source code itself.
: </quote>
: 
: Although, i have to ask, if the object code does not convey ideas, how 
can it
: result in the improper disclosure of the trade secret?

I don't think one has to worry too much about that dictum, since the
question of executable code was not before the court (and was not before
the 6th Circuit in Junger v. Daley).  I think that Touretsky's gallery
supplies strong evidence that one cannot distinguish between object
code and source code.  Furthermore the issue under the first amendment
is not whether the publication of ideas is being expressed but whether
information is being published.  The questioning of whether the 
publication
of information is expressive is the pursuit of a red herring.  (Or 
someting like that.)

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu 
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