[free-sklyarov] Re: Rallies on Monday

Seth Finkelstein sethf at sethf.com
Sat Jul 21 10:52:50 PDT 2001


Seth David Schoen wrote:
> Unfortunately, courts already seem to have a hard enough time
> believing that electronic publication of free/open source software is
> protected by the first amendment.

	While this is true, there's a very deep issue in the
definition of "protected". The problem is better rendered that
the courts have taken the view that the protection of
(intellectual) *property rights* trumps the free-speech concerns
here. There's a very revealing paragraph in the DeCSS decision
concerning this:

"Thus, even if one accepted defendants' argument that the
anti-trafficking prohibition of the DMCA is content based because it
regulates only code that "expresses" the programmer's "ideas" for
circumventing access control measures, the question would remain
whether such code--code designed to circumvent measures controlling
access to private or legally protected data--nevertheless could be
regulated on the basis of that content.  For the reasons set forth in
the text, the Court concludes that it may.  Alternatively, even if
such a categorical or definitional approach were eschewed, the Court
would uphold the application of the DMCA now before it on the ground
that this record establishes an imminent threat of danger flowing from
                                ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
dissemination of DeCSS that far outweighs the need for unfettered
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
communication of that program.  See Landmark Communications,
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Inc. v. Virginia, 435 U.S. 829, 842-43 (1978)."

-- 
Seth Finkelstein  Consulting Programmer  sethf at sethf.com  http://sethf.com
http://www10.nytimes.com/2001/07/19/technology/circuits/19HACK.html




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