[free-sklyarov] He's free.... (fwd)

adam at deprince.net adam at deprince.net
Wed Jul 25 07:03:45 PDT 2001


On Wed, 25 Jul 2001, Tom wrote:
> On Tue, Jul 24, 2001 at 03:47:29PM -0700, Seth David Schoen wrote:
> > > I guess the idea that there are tools in my home that can be used for legal and
> > > illegal uses makes the most sense in understanding the arguments here.
> > > Everything from cd burners to bongs are sold legally with the express intent
> > > being legal uses.
<snip>
>
> the point is that nothing is illegal just because illegal uses exist.

Not entirely true.  Burgler tools are an example of items that are illegal
in many jurisdictions solely because of the potential for illegal uses.

It is important to realize that the State _can_ and does regulate things
because an illegal use exists.  Cars, guns, knives are all items
regulated out of fear of illegal use.

The difference in this case is based on the _nature_ of software.  A car,
gun or knife is a physical object.  Software isn't.  Software is a
conversation recorded to a recording device (i.e. hardrive) for
consumption by another person or machine.

The stance that we need to take is:

* Programs are speech between computer programmers.

* The obscurity of the speech or language is not grounds for removal of
constitutional protection.

* The fact that a machine can understand it is not grounds for removal of
constitutional protection.

* The fact that skillfully created speeches, when followed by the
computer, give the perception that software is an object (i.e. icon on the
screen) is not grounds for removal of constitutional protection.

* The fact that the speech advocates the performance of an act that could
be in violation of the law is not grounds for removal of constituional
protection.

Grab a book on constitutional law.  You will find that (some) speech
advocating actions that might be illegal is okay, what isn't okay is
actually doing what the speech describes.  Applied here, the software is
cool, running it outside of the fair use doctrine isn't.

Lets face it.  Every other field's artistic expression is considered
constituionally protected speech.  Its about time that we asked for the
same rights for our artistic expression.

- Adam

> you can kill someone with pretty much everything (including pens), yet
> nobody would request large portions of our stuff be made illegal
> because of that - unless we're talking software, were suddenly things
> work different.
>
>
>
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