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

[microlenz(at)earthlink.net]

"How do you get to be an encryption researcher"
"The lady of the lake, her arm covered in purest samite, held aloft 
Excaliber, signifying that I would be king of encryption researchers"
"If I told you I was king because some watery tart help up a saber 
they'd put me away"...


<or words to that effect. I don't feel like putting in Holy grail into my 
VCR....If I had a DVD I could probably find things faster but then I'd 
need DeCSS to fast forward through the MPAA PBS to make this 
fair use.>

Date sent:      	Mon, 3 Dec 2001 18:46:24 -0800 (PST)
From:           	Bryan Taylor <bryan_w_taylor@yahoo.com>
Subject:        	Re: [dvd-discuss] my debate with Michael Shamos
To:             	dvd-discuss@eon.law.harvard.edu
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 
> --- 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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