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Re: [dvd-discuss] Re: The Grounds for Appeal

That's a rather "wicked" argument! Code deserves no protection 
because it's functional but prayer and magical charms (as an 
aside, can comeone copyright a magical spell? A charm?) don't 
because they don't work but we give them protection anywise.

Actually, the response to the argument is "but those evil wicked 
mean and nasty hackers are violating the sanctity of intellectual 
property...they will destroy the world as we know it if we don't stop 
them now...no matter what it takes....we can't protect their speech 
because they are all bad...."

The whole notion of functional speech is an attempted 
compromise. It attempts to trade off the first amendment against 
economic interests. The fundamental problem with the notion of the 
regulation of functional speech in that form is that if censorhship 
during war where the existance or nonexistance of a country and 
the continued existance of rights may be in doubt requires great 
scrutiny, lesser economic interests surely requires the greatest 

To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Re: The Grounds for Appeal 
Date sent:      	Sat, 01 Dec 2001 18:58:03 -0500
From:           	"Peter D. Junger" <junger@samsara.law.cwru.edu>
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> Jim Bauer writes:
> : Claus Fischer <claus.fischer@clausfischer.com> wrote:
> : >Even supposing the code had functionality I flatout refuse to
> : >acknowledge that this is a reason for it losing the speech
> : >protection. The point about conduct is, conduct makes the thing :
> >lose its speech character, therefore it is non-speech and need : >not
> be protected. The alleged functionality in this example : >may at most
> be in addition to the speech quality, not changing : >the fact that
> the code is speech. Therefore code is still speech. : : : If code is
> functional, then isn't (almost) all speech also : functional?  The
> function being to communicate.
> The clearest examples of functional speech that I can think of
> are 1.) prayers and magical charms and 2.) legal instruments
> including contracts, wills, and enacted laws.
> As to category 1.) it would violate the establishment clause of 
> the Constitution to deny that prayers anc magical charms are 
> effective.  As to category 2.), if the courts were to claim that
> legal instruments are not effective, they would have to go out
> of business.  Yet surely prayer books and legal form books are
> protected by the freedoms of speech and of the press.
> --
> Peter D. Junger--Case Western Reserve University Law
> School--Cleveland, OH
>  EMAIL: junger@samsara.law.cwru.edu    URL: 
>  http://samsara.law.cwru.edu   
>         NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists