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

[microlenz(at)earthlink.net]

That seems to be a major part of the issue. As Justice Holmes 
pointed out, that for the government to have a compelling interest 
there must be a clear and present danger-to life, freedom.  What 
has not been addressed by congress and the courts is what that 
is. 


From:           	Dave_Touretzky@cs.cmu.edu
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	[dvd-discuss] my debate with Michael Shamos
Date sent:      	Fri, 30 Nov 2001 22:51:56 -0500
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> Michael Shamos and I are both faculty members at Carnegie Mellon, and
> we both testified at the 2600 trial -- for opposite sides.  Today we
> held a debate on whether computer code should be protected speech.
> People have been anticipating this event since the Chronicle of Higher
> Education piece on our diagreement:
>   http://chronicle.merit.edu/free/v47/i48/48a04501.htm
> 
> My slides from today's debate can be viewed here:
>   http://www.cs.cmu.edu/~dst/DeCSS/Gallery/Debate
> 
> 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.)
> 
> 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.
> 
> The DoJ says it has no desire to prosecute Ed Felten for his Usenix
> paper, but it refuses to promise not to prosecute him under the DMCA
> for the *next* paper he writes, if it turns out they don't like it.
> Their reasoning is correct.  No amount of mouse clicks will be enough
> to deter people from circumventing access controls they find
> irrational and offensive.  The only effective deterrent is to punish
> the expression of IDEAS that could, with sufficient mouse clicks, be
> turned into circumvention devices.  Any lesser measure will prove
> ineffective, because computer folk are so darned inventive, as
> evidenced by all the wonderful exhibits contributed to the Gallery of
> CSS Descramblers.
> 
> 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.
> 
> -- Dave Touretzky
>