[dvd-discuss] 2600 Loses in 2nd Circuit

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

2600 Lost. The text of the decision is here:

http://www.2600.com/news/112801-files/UniversalBrief_3.pdf

The court wrote the best explaination yet of why code, including object code is
speech. Then they applied the test for intermediate scrutiny. Here is a key
point of their argument:

"Unlike a blueprint or a recipe, which cannot yield any functional result
without human comprehension of its content, human decision-making, and human
action,
can instantly cause a computer to accomplish tasks and instantly render the
results of those tasks available throughout he world via the Internet. The only
human action required to a hieve these results can be as limited and
instantaneous as a single click of a mouse."

This is a very clear error. Their second sentence admits that it in fact does
take human action, to execute the program, while the standard of the first
sentence depends on absense of "human decision-making". 

The decision to click that mouse may involve very subtle and minute physical
motion, but so does pulling the trigger of a gun. That is what technology does
-- it allows human decisions to be implemented with minimal physical action,
but the smallness of the trigger is not the measure of who must bear
responsibility for the enormous conscious choice of if, when, and under what
circumstances to tap it. 



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