[free-sklyarov] Re: Rallies on Monday

Seth David Schoen schoen at loyalty.org
Sat Jul 21 09:27:49 PDT 2001


Declan McCullagh writes:

> That's because the DMCA only makes commercial circumvention a crime:
> 
>  (a) In general. -- Any person who violates section 1201 or 1202
>  willfully and for purposes of commercial advantage or private
>  financial gain, (1) shall be fined not more than $500,000 or
>  imprisoned for not more than 5 years or both, for the first offense
> 
> Non-commercial circumvention may, of course, be a civil offense, as 2600
> found out in the New York case brought by the movie studios.
> 
> This state of affairs creates a mild problem (to go back to the recent
> topic of discussion on cypherpunks) for those who strongly believe in
> the First Amendment when applied to nonprofit or not-for-profit speech
> but less so when it comes to speech that's part of a commercial
> transaction.
> 
> For instance, a guy ranting on Usenet, they say, should have free
> speech rights, but the tobacco companies or pharmaceutical companies
> can properly be muzzled. Let's hope Dmitry, a budding capitalist,
> doesn't fall into that same commercial-speech-can-be-regulated
> catchall.

I agree, and I fear that this is why StreamBox settled in the _Real
Networks v. Streambox_ case.  They didn't necessarily feel optimistic
that their commercial speech would be protected in the view of the
courts.  The outcome of that case is certainly troubling for this one.
For those who don't want to protest Adobe on Monday, why don't you go 
protest Real Networks?  Goodness knows they could use it. :-)

Streambox VCR is useful in some of the same ways as AEBPR, although
there are perhaps more legal uses for AEBPR and more illegal uses for
Streambox VCR.  They are both proprietary commercial software and many
people do argue that there is a free speech right to sell them (as
there is a free speech right to sell books!).  But it would be more
immediately obvious if they were free/open source.

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.

-- 
Seth David Schoen <schoen at loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5




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