[dvd-discuss] Code as (commercial) speech?

["Robert S. Thau" <rst(at)ai.mit.edu>]

A little while ago, I wrote:

 >  > ... and who decides what is and is not "commercially significant"?
 > 
 > The judge.  Who will be predisposed by inclination, by social
 > contacts, and perhaps by training, to regard the activities of large
 > multinational conglomerates as "commercially significant", and the
 > activities of tinkerers in garages as commercially insignificant.

As a corrolary, if we believe that the law regulates code, and that
code is speech, then we may have here a law (the DMCA) which accords
more protection to some forms of commercial speech (i.e., commercial
software) than to the noncommercial variety.  First amendment
doctrine, as I understand it, tends to go the other way.  Is there
anything to this?

rst