Re: [dvd-discuss] my debate with Michael Shamos

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

--- Dave_Touretzky@cs.cmu.edu wrote:
 
> One of the points I made in my position statement was that the
> argument that "computer code by itself doesn't DO anything", which has
> recurred recently on dvd-discuss, is similar to the old saw, "Guns
> don't kill people: people do."  Most folks do not find that a
> compelling argument against firearms regulations, and hence we have
> lots of laws controlling the sale, ownership, and carriage of
> firearms.  The problem is that putting a loaded gun in someone's hand
> leaves too thin a margin of protection for the general public.  So,
> although firearms do have lawful uses, the law permits restrictions to
> be laid on what guns people can own (no automatic weapons), and where
> they can bring them (no concealed carry without a permit, no guns on
> airplanes, etc.)

The argument is very similar to the "guns don't kill people" argument. I would
differ strongly on whether "most folks" find that a compelling argument, but I
don't want to have that argument here. Courts have been very skeptical of
attempts to pull liability back to gun makers or sellers for precisely this
reason. The debate over what can or can't be regulated is really a debate over
whether the second amendment protects a truly individual right and if so to
what.  By the way, the Fifth Circuit just weighed in on the matter in the
Emerson case and strongly rejected the "collective rights" theories. 

In the case of speech, there is no ambiguity over what the standard is. The
O'Brien intermediate scrutiny standard is very well defined. The court focused
heavily on it and any Supreme Court review will be based on it. 

The analogy to "putting a loaded gun in someone's hand" is right on target.
This act requires personalized intent. It is the same standard as in aiding and
abetting or conspiracy cases. That is where we would like to draw the line. If
I write a virus and I send it to you, then I join you in being somewhat
responsible for how you use it. Free speech is not a defense to joint malicious
action.

> I argued that if congress and the courts are justified in treating
> software like guns, there must be some "imminent peril" associated
> with software that likens it to a loaded gun.  The court's initial
> attempt at this was to count mouse clicks, but that's ridiculous.  How
> many mouse clicks will the court find are required to establish a
> "comfortable distance" from harm?  If I publish circumvention code on
> a t-shirt instead of on the Internet, and so prospective circumventers
> have to type in the code by hand, will that be enough of a safety
> margin?  I doubt it.

I agree with your "imminent peril" idea. That is very reminiscent of the "clear
and present danger" standard or the "likely to incite imminent lawless action"
standard.

The Court also completely neglects that it takes a lot more than just a click:
you have to put in the DVD, knowing full well what you intend to do with the
decrypted result. You also have to install the software. All of these acts are
essentially done in anonymity relative to Eric Corley.

> And so we will be forced to recognize the DMCA as a restriction on all
> forms of speech describing circumvention devices, not just speech that
> is compilable computer code.

I'm worried that "encryption researcher" will become like a title of nobility
that gets you a pass on liability while amatures and dabblers will be denied
the right to speak the very same words. 

> -- Dave Touretzky

Hey, thanks for your efforts in this case. If nothing else, we now at least
have a precedent that says that software, including object code IS SPEECH and
deserves at least intermediate scrutiny as opposed to no scrutiny.

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