Re: [dvd-discuss] 2600's request for rehearing en banc denied

[microlenz(at)earthlink.net]

On 22 May 2002 at 13:29, Arnold G. Reinhold wrote:

Date sent:      	Wed, 22 May 2002 13:29:09 -0400
To:             	dvd-discuss@eon.law.harvard.edu
From:           	"Arnold G. Reinhold" <reinhold@world.std.com>
Subject:        	Re: [dvd-discuss] 2600's request for rehearing en banc denied
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> At 8:46 AM +0200 5/22/02, Tom wrote:
> >On Tue, May 21, 2002 at 07:38:09PM -0700, microlenz@earthlink.net wrote:
> >> > I don't think much strategic thinking was involved in MPAA's bringing
> >> > this case. They were alarmed and embarrassed by the sudden appearance
> >> > of DeCSS on the Internet and sued everyone in sight.
> >>
> >> All 39,000 other kayakers? They didn't just stick a pin in a 
> >>computer listing
> >> although if they used microsoft products to randomly select there's less
> >> randomness than can be expected.
> >
> >
> >actually, unless I'm mistaken the MPAA's case was pretty targeted. it
> >was the DVD CCA in the california lawsuit who sued everyone and his
> >dog, including someone who made T-shirts with decss printed on them.
> >
> 
> You're right, I confused the two. The only other defendants in the 
> 2600 case were Shawn Reimerdes and Roman Kazan.
> 
> At 7:38 PM -0700 5/21/02, microlenz@earthlink.net wrote:
> >> > o the defendant is a magazine, making First Amendment issues 
> >>hard to ignore
> >>>
> >>
> >>Which Judge Lewis Kaplan chose to completely ignore by showing his prejudice
> >>for the "hacker"....and that's something else to consider. To many in our
> >>judicial and legislative branch, "hacker" has replaced "certain ethnic", "
> >>certain political belief", "certain skin color" as the principle element of
> >prejudice...or soon will be.
> 
> 
> The Second Circuit did point out that the term "hacker" covers both 
> serious researchers and miscreants (p.7487). The Supreme Court has 
> often stated that attempts to restrict unpopular speech deserve 
> particular attention.  In Free Speech Coalition, the evil used to 
> justify censorship was simulated child pornography. Pedophiles are 
> way below hackers in the public mind. And again, the defendant is not 
> a hacker but a magazine that cover hackers.

Damning with faint praise....Either the court was taken in by the "hacker" 
label or else they lack the fortitude to do anything other than write up a 
record the USSC can make final judgment. In either case, they are less than 
impressive as either easily mislead or merely bookeepers. But you have a good 
point about the USSC. THe question is if the sanctity of the intellectual 
property protection arguement is enough to sway them.

> 
> I hope the Supreme Court will find the heart of this case: the 
> attempt by the lower courts to bypass well established free speech 
> jurisprudence by classifying the publication of DeCSS as conduct. 
> The whole purpose of strict  scrutiny is to allow speech that is 
> exceptionally dangerous to be regulated. Otherwise all regulation of 
> speech would be banned per se.  There is clearly a despised message 
> here: how to bypass copyright protection methods.  If Congress feels 
> that message must be proscribed, it should pass laws that can survive 
> strict scrutiny. The DMCA can't.
> 

Personally, I think the "clear and present danger" test is more clear and 
present here ;-)
> Arnold Reinhold