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Re: [dvd-discuss] The Touretsky and Shamos debate at CMU.

On Mon, 3 Dec 2001, steve bryan wrote:

> At 11:46 am -0500 12/1/01, Scott A Crosby wrote:
> >His refutation of it is that you can easily avoid 'breaking the law' by
> >not distributing code. The law doesn't have to mold itself to your
> >convenience.
> I apologize for being slow but I don't understand how this is a
> successful refutation. The First Amendment protects speech from the
> desires and whims of minorities and majorities and the laws they
> might pass. I don't have to avoid "breaking the law"; laws have to
> avoid breaking the First Amendment. I remain mystified how the DMCA
> has not been held up to scrutiny based on conflict with the First
> Amendment.

I'll try to restate the claim, as I see it. The claim is that it doesn't
restrict the speech, but rather it restricts the form of the speech. (You
may not be able to shout 'fire' in a crouded auditorium, but you can write
it on a napkin; this example is mine.)

Thus, the law doesn't have to accept your whim of stating circumvention
software in a 'functional' format. You can still state it, but must make
sure to state it in a non-functional format.

(Though, inventing a format that will remain non-functional when
computers understand english is left to an exercise to the reader.)

> I wonder if the lawyers and judges involved in these cases understand
> the cultural crossroads at which we stand poised. If all they do is
> offer their own muddled ideas about 'functional' speech while
> upholding an abomination like the DMCA, a whole segment of society
> (the people who actually make technology work) will hold such
> sophistry and all that flows from it in utter contempt. At this point
> I suspect the only thing that restrains such a reaction is the
> expectation that once these issues reach the Supreme Court we will
> get a very different result than we've seen so far.

I read a comment on slashdot that was extremely insightful. I can't find
it again to cut&paste, but it roughly said that computer scientists and
programmers are trained to view things as abstract, to look above the
concrete details, and they expect the law to do the same. But, the law,
obviously, doesn't, and we are naive to expect it otherwise. So, I
wouldn't call this a given.

Oh, and to backup my last email, see what has happened in the past.