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

["John Zulauf" <johnzu(at)ia.nsc.com>]

After writing the lengthy note below.  A simple thought occurred.  If
binary and object files do not "convey ideas" -- then why are the
plaintiff complaining that their "secrets" have been illegally obtain by
reading those files (the Xing player for instance).

Either (a) the binary and object files do not convey ideas, and
therefore any ideas generated by inspection of those files cannot
violate a "trade secret" law (b) binary and object files DO convey ideas
and therefore (if truthful) constitute protected speech.  (Need citation
for the freedom of the press consists "at least" of the ability to
publish the truth.

With (a) the plaintiffs have no case, or (b) the plaintiff have no right
to silence truthful speech...  is there any possible positive outcome
for the plaintiff's here?

Bryan Taylor wrote:
> 
> 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>

Actually, I'm encouraged.  The court is on the correct slippery slope. 
See http://cyber.law.harvard.edu/twiki/bin/view/Openlaw/IsCodeADevice . It
seems that the court has itself made relevant the capability to "convey
ideas" -- opening a whole line for the defense to lever to protect the
object and binary versions as well.

It still needs to be addressed with expert testimony that 

(a) there is no "bright line"  between source and object (or binary)...
one system's binary is another system's data (decompiler's etc..).  The
key example would be a 'C' source interpreter.  Assuming one existed,
the 'C' source is directly executable -- and therefore is it's own
object code.  Does it then convey fewer ideas?  Clearly not, thus (the
argument goes) that the "executable" nature of software (in whatever
form) cannot be germane to the question of speech.

(b)Computer scientists are regularly taught to read the bit directly
(I've certainly read enough binary wire protocol stuff to last a
lifetime.  Knowing that uninitialized memory come out as 0xDEADBEEF on
certain systems is useful, and 0x3F800000 == 1.0 shows that the bits
have real information.  ) and binaries are the same way... how else to
debug a compiler, interpreter, or linker. 

(c) "zeroes and ones" certainly DO convey ideas.  They yield (through
direct examination or de-assembler) they convey and contain (or should)
at least the exact same ideas as the executable statements of the source
from which they are created.  More expansively they contain information
regarding the optimization algorithms used by the compiler, or the
assumption in terms of scheduling or instruction use.  The "zeroes and
ones" also convey a very important piece of information -- does the
compiler work?  How else would one know?   
(d) the "zeroes and ones" may be the only expression of a given idea. 
Source code can and has been lost in the past.  The only way to recover
the ideas expressed in the source code is through the reverse
engineering of the code -- but how could those ideas be recovered if the
"zeroes and ones" don't convey them

Finally the real value is in the bits the way that the often the best
insight into a courts mind is in the footnotes.  Would the court make a
distinction between

(a) the findings of fact
(b) the finding of law
(c) the judgement based on those findings

in a court case.  While the judge contains neither the full facts nor
the full legal arguements regarding the law, it certainly contains the
practical expression of those two documents.  The court "compiles" the
facts and the law to create an "executable" for the executive branch of
government to "run".  It's functionality in the context of a deputized
enforcement agent does nothing to reduce it's fundamental speech
character.