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Re: [dvd-discuss] Life vs. profits -- the court thinks profits are more important

At 05:16 PM 12/19/01 -0700, John Zulauf wrote:
 >"speech may not be punished just because it makes it more
 >  likely that someone will be harmed at some unknown time
 >  in the future by an unrelated third party."
 >This is from the "Nuremberg files" case where names and address (and
 >status, killed or not) of abortion providers were filed on the internet.
 >Compare and contrast this with the DeCSS rulings in before the lower and
 >appeals courts and the Sklyarov case.  These courts seem to think that
 >actions taken by an "unrelated third party" that may infringe a
 >copyright allows the banning of the CSS related speech.
 >Here is a question -- if the addresses were instead links to mapquest,
 >would they be functional and thus subject to lower scrutiny?  Isn't an
 >address "functional" in the sense of a recipe or software?

Great hypothetical.  (no chance you were a law prof in a prior life?)

There's a real disconnect here.  Even though the Reimerdes courts both 
claimed to recognize that code is speech, they don't thoroughly 
_understand_  it as speech.  They see a program (or a hyperlink) and 
automatically  conclude that its "function" and primary purpose are to be 
acted upon, while they see an home address and think of it as a 
communication, not a direction.   They've been trained to recognize 
hateful, distasteful, and on-the-verge-of-incitement speech under the First 
Amendment rubric, but not code or algorithms.  They put the speech into 
different buckets and think that's the end of the discussion.

That's why amici tried to present so many different situations in which 
code functioned primarily as speech, and where the speech-effect worked 
only when the code could also work as a computer instruction.

Weird in the extreme.

 >It seems that when lives are on the line speech is free, but not when
 >corporate profits are risk...
 >too weird.

Wendy Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School