[dvd-discuss] The Grounds for Appeal

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

I can find three solid grounds for appeal:
Error 1. Constitutional Powers
Error 2. Content Neutrality / Conduct vs Functional Capability
Error 3. Narrow Tailoring

I worry that the defense spent too much time arguing "code is speech" and not
enough time arguing the finer points of intermediate scrutiny. I think enough
courts have said code is speech now to begin the analysis there. The three
points above are all part of the analysis that starts after that is
established.

Error 1. Constitutional Powers

The Court's refusal to examine the requirement of "within Consitutional
powers", as argued by the law professors brief. They gave two reasons for this.

First they said "arguments presented to us only in a footnote are not entitled
to appellate consideration" and ignored the law professors amicus for
"injecting new issues into an appeal". The O'Brien intermediate scrutiny
standard requires the appelate court to independently establish the planks of
the test, regardless of whether it was argued.  The burden for meeting
intermediate scrutiny is on the government and/or plaintiffs.

Second, the Court found the claim lacked a "properly developed record". This is
especially shocking because of their refering to "the evident legitimacy of
protection against unauthorized access to DVD movies" in [4. The Scope of First
Amendment Protection for Decryption Code]. If there is inadequate record to
*establish*, as intermediate scrutiny requires, then that is grounds to vacate
the lower court's decision and return it there to develop it. Of course, I'm
not sure what type of record is needed, since this is as pure a question of law
as I can imagine.

Error 2: Content Neutrality / Conduct vs Functional Capability

This court followed Kaplan's standard that "Restrictions on the nonspeech
elements of expressive conduct fall into the content-neutral category." But the
court did not find restrictions of "nonspeech elements of expressive conduct".
Instead they found restrictions on disseminating expression with "functional"
elements. They conflagration of functionality and  conduct oversteps the
standard set forth in O'Brien. Had O'Brien written a computer program to burn
his draft card instead of burning it himself, O'Brien would have been in the
clear.

The court agreed that "the functional capability of computer code cannot yield
a result until a human being decides to insert the disk containing the code
into a computer and causes it to perform its function". Said differently
"funcational capability cannot yield a result until a human decides to use it
to engage in conduct". But that conduct is the element required by intermediate
scrutiny and the Court admits that standing alone, the software doesn't have
it.

Error 3: Narrow Tailoring

The court recognized that the DMCA does not employ the least restrictive means
(and in fact gave examples of less restrictive means), saying "But a
content-neutral regulation need not employ the least restrictive means of
accomplishing the governmental objective. Id.  It need only avoid burdening
'substantially more speech than is necessary to further the government's
legitimate interests.' "

This flatly contradicts their finding that code is speech. The speech content
of code (even if "functional capability" is a distict nonspeech component of
code) is the "substantially more speech" in this case. They also failed to
address the component of speech resulting from fair use that becomes impossilbe
do to access restrictions, despite the fact that this point was heavily argued.



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