Re: [dvd-discuss] Vartuli and the digital crowbar

["D. C. Sessions" <dcs(at)lumbercartel.com>]

On Wednesday 05 December 2001 22:32, you wrote:

> This is used to say that since code can run on a computer it has, as
> a minimum, a nonspeech element (since there is communication that
> isn't protected by the First Amendment).
> 
> Later on, in explaining why the DMCA is content-neutral, the decision
> says:
> 
>   "Neither the DMCA nor the posting prohibition is concerned with
>    whatever capacity DeCSS might have for conveying information to
>    a human being, and that capacity, as previously explained, is
>    what arguably creates a speech component of the decryption code."
> 
> I read this as saying the functional aspects, or nonspeech elements,
> of code allow the code to be regulated in a content-neutral way.  This
> seems to be equivalent to saying any speech that has a nonspeech
> element can be regulated.  Isn't this reasoning essentially denying
> First Amendment protection to *all* computer programs?

No, it's applying intermediate scrutiny to all machine-readable text.

Part of the intermediate scrutiny standard is that it can't regulate
"non-speech elements" based on their meaning, but only on time,
place, and method of conveying that meaning.  Since there is no
time, place, or method difference between DeCSS in one computer
language and another [1] then all computer languages are equally
damnable.  Since there is also no time, place, or method difference
between DeCSS and (e.g.) literature searches in "friendly" query
such as the ones used at libraries, all communications using computers
are equally damnable.  Since there is no time, place, or manner
difference between one ASCII text and another, all ASCII text on
computers is equally damnable.

Thus, since there is no time, place, or manner difference between
DeCSS and the Court's Internet publication of its decision, it follows
that the Court has proven that its own decision is in violation of the law.

>                                                                                     Doesn't this
> fly in the face of the judges when earlier they say that "... computer
> programs ... can merit First Amendment protection ... "?  Or do they
> mean that computer programs that aren't functional (broken) are the
> only kind that can have protection?

The programs do merit First Amendment protection, in that you can't
look at the contents of the text to decide whether it's Mein Kampf or
a grocery list.  There's nothing there to prevent the Court from banning
everything printed on ammonium iodide-impregnated paper.

[1] Or maybe Lisp is functional but BASIC isn't.  I can go with that.

-- 
| I'm old enough that I don't have to pretend to be grown up.|
+----------- D. C. Sessions <dcs@lumbercartel.com> ----------+