[dvd-discuss] Re: The Grounds for Appeal

[Claus Fischer <claus.fischer(at)clausfischer.com>]

: Had O'Brien written a computer program to burn his draft card instead
: of burning it himself, O'Brien would have been in the clear.

insert
... and not burned the draft card but published the program ...
right? because that would have brought in the conduct again.

***

Even supposing the code had functionality I flatout refuse to
acknowledge that this is a reason for it losing the speech
protection. The point about conduct is, conduct makes the thing
lose its speech character, therefore it is non-speech and need
not be protected. The alleged functionality in this example
may at most be in addition to the speech quality, not changing
the fact that the code is speech. Therefore code is still speech.

The alleged functionality may be a nice criterion to separate it from
other kinds of speech in the eyes of the court but it does not make it
lose its speech character in the least.

The alleged functionality is furthermore closely related to
the content of the speech; the idea that its functionality
can serve as a content-neutral regulation is crazy.

***

Also we should not concede that the code is functional because
it is not. I have never seen code that was functional.
The only thing that is functional is code being executed on a
computer. The combination of a computer and code can be functional.
This would be a device. The computer, without a doubt, is a device
in its own right. The computer with the code being executed on it
is perhaps a circumvention device. But code without a computer is
not a device, and is not functional. Never, ever.
Not unless we give yield to paranormal phenomena of `intelligence
condensating into matter' or other stuff for SF movies. All very nice,
and it may even have had some validity during the first second of
the universe. But never since.

Look, a piano is a device. A piano together with a music score can,
in the right hands, be a device of driving your neighbour crazy.
The music score is not a device and is not functional.
Neither is the piece of paper that drives an automatic piano
functional in its own right, and it most certainly deserves
speech protection as a means of expressing the music.

Taking apart the `circumvention device', namely the computer plus
the code, does not mean that the pure speech part, the code,
should receive the blame, and the pure device, the computer should
receive none of it.

A computer is by its very nature constructed as the ultimate
circumvention device for this and lots of future copy protection
schemes, it is the ultimately configurable circumvention device.

Of course they can't blame the computer because of its universal
use in daily life and because its main use is not circumvention,
but then taking out the part that is pure information, pure speech,
pure code and declaring it a `device' and denying it speech rights
seems to me a bit scapegoatish :-)

Bad luck that the computer was invented.

Claus

-- 
Claus Fischer <claus.fischer@clausfischer.com>
http://www.clausfischer.com/