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

I like the player piano parallel.  The roll is exactly
equivilant to code and the piano is exactly equivilant
to the computer.  Moreover, it is a concrete example
that the courts are much more likely to be familiar
with than actual computer and code (which are seen
by some to be opaque and incomprehensible ... a mystique
begun by the "high priests" of the mainframe age).

Can we develop this player piano example into an argument
for the court?

-Richard M. Hartman

186,000 mi./sec ... not just a good idea, it's the LAW!

> -----Original Message-----
> From: Claus Fischer [mailto:claus.fischer@clausfischer.com]
> Sent: Friday, November 30, 2001 4:38 PM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: [dvd-discuss] Re: The Grounds for Appeal
> : 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.
> insert
> ... and not burned the draft card but published the program ...
> right? because that would have brought in the conduct again.
> ***
> 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.
> The alleged functionality may be a nice criterion to separate it from
> other kinds of speech in the eyes of the court but it does not make it
> lose its speech character in the least.
> The alleged functionality is furthermore closely related to
> the content of the speech; the idea that its functionality
> can serve as a content-neutral regulation is crazy.
> ***
> Also we should not concede that the code is functional because
> it is not. I have never seen code that was functional.
> The only thing that is functional is code being executed on a
> computer. The combination of a computer and code can be functional.
> This would be a device. The computer, without a doubt, is a device
> in its own right. The computer with the code being executed on it
> is perhaps a circumvention device. But code without a computer is
> not a device, and is not functional. Never, ever.
> Not unless we give yield to paranormal phenomena of `intelligence
> condensating into matter' or other stuff for SF movies. All very nice,
> and it may even have had some validity during the first second of
> the universe. But never since.
> Look, a piano is a device. A piano together with a music score can,
> in the right hands, be a device of driving your neighbour crazy.
> The music score is not a device and is not functional.
> Neither is the piece of paper that drives an automatic piano
> functional in its own right, and it most certainly deserves
> speech protection as a means of expressing the music.
> Taking apart the `circumvention device', namely the computer plus
> the code, does not mean that the pure speech part, the code,
> should receive the blame, and the pure device, the computer should
> receive none of it.
> A computer is by its very nature constructed as the ultimate
> circumvention device for this and lots of future copy protection
> schemes, it is the ultimately configurable circumvention device.
> Of course they can't blame the computer because of its universal
> use in daily life and because its main use is not circumvention,
> but then taking out the part that is pure information, pure speech,
> pure code and declaring it a `device' and denying it speech rights
> seems to me a bit scapegoatish :-)
> Bad luck that the computer was invented.
> Claus
> -- 
> Claus Fischer <claus.fischer@clausfischer.com>
> http://www.clausfischer.com/