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

[Michael.A.Rolenz(at)aero.org]

Probably true. Some staffer probably thought parotting the USSC language 
would make it sound better. The protection of the "Commercially 
significant" to the detrement of the "commercially insignificance" is same 
fallacy as the "greatest good for the greatest number" except that the 
greatest number is replaced with the greatest commercial interest. 

Actually, I would NOT exclude physical devices either. The device is a 
thing. It is how the device is used and by whom and for what purpose that 
is the matter for the court to decide on  a case by case basis. 
Furthermore, Given the way the law has been written, a free LINUX DVD 
player is a circumvention device. The obvious conclusion is that the law 
reduces competition and creates a closed cartel.




Wendy Seltzer <wendy@seltzer.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
08/29/01 03:44 PM
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The "commercially significant" seems to be a carry-over from the 
contributory patent infringement standard applied to copyright in the 
Betamax case.  While it might work for physical circumvention devices (at 
least those without aesthetic virtues), the test gives funny results for 
software-speech-information.  "Serious literary, artistic, political, or 
scientific purpose" (the standard when balancing speech versus obscenity) 
might still be commercially insignificant.

Yet another reason for interpreting the statutory language not to include 
code among potential circumvention "technology, product, service, device, 
component, or part thereof"-- it just doesn't fit the mold.

--Wendy

At 02:48 PM 8/29/01 -0400, Robert S. Thau wrote:
>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

--
Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html