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"Citizens Against Lawsuit Abuse" is not exactly what I'd call a reliable and accurate news source. But much more importantly, they don't provide links or footnotes to any of the frivolous lawsuits they mention in their article. Most US courts now have extensive online documentation. Perhaps CALA is making that stuff up to score points.

The great power of the web is that you don't need trust -- you can prove your case by hyperlinking any major claims. Just do it!

Just like if I take an MP3 of Britney Spears and change every other byte to a zero. (*) There is no way to get back the original, but a court would very likely consider it an infringment to redistribute. We all know those are two different situations, but would, for example, Judge Kaplan agree? Remember how he ruled that DeCSS is illegal under the DMCA in spite of fair use, the Constitution, and even the defenses spelled out in the DMCA itself.

(*) One could definitely argue that the resulting file would be better than the original, and even better if the remaining bytes were turned to zeros as well. ;)

There are 2 different types of offenses, violating access control and "copy" control (measures "protecting" exclusive rights). Access control isn't really copyright, but it is part of the law. The definition there for circumvention is: "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; ".

Okay the CD copy restriction technology does not encrypt/scramble, so a "hack" won't decrypt/descramble. One can already get access to the work directly. The work just has defects designed to make accessing it difficult. No lock, just garbage that makes a CD-ROM puke. Locking content and making your content exploit a bug in CD-ROM firmware are 2 different things. Hmm, deliberately exploiting a bug, could be illegal under anti-"hacking" statues, especially if a CD-ROM damages itself trying to read it...

Next, effectively controls access: "effectively controls access to a work'' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."

Nope, the work is right there in front of you. Adding stuff to/messing with it to confuse CD-ROM's which are smart enough to see it and get hosed, whereas CD players are too dumb to care is indeed clever (albeit it detestable and unethical). That hardly qualifies as requiring special steps to get the access. MPAA did a MUCH better job with DVD by using CSS. Even a 1-byte XOR would be better, legally. The RIAA could not change the format retroactively and keep backward compatibility (which the citizens who purchase music demand - note: MPAA did not have this problem, they controlled the format BEFORE its adoption). So they do the ONLY thing they can do - which is clever tricks. You can't put a lock on something if legacy devices don't grok keys. So you look for the next best thing.

Now the copy control bypassing prohibitions: to ''circumvent protection afforded by a technological measure'' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and (B) a technological measure ''effectively protects a right of a copyright owner under this title'' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title. We could get nailed on circumvention theoretically. However the effective protection clause helps us (encryption being weak ala CSS may not, but this is different).

Does the measure protect a "right"? NO. It stops ACCESS, not COPYING. COPYING is an exclusive "right" (monopoly), not ACCESS. Copyright does not grant an ACCESS monopoly. The only access prohibition were dealt with above.

The device prohibitions depend on facilitating those violations, so if you aren't illegally circumventing, a device you use won't be considered an illegal cirumvention device.

Disclaimer: I am neither a lawyer, nor Judge Kaplan.

And is there anyone that doesn't think the RIAA would put its slowest, most detail-oriented people on the queue for submissions. Every cover band will be tossed off for not having permission to record...every bootleg will be yanked...anything with even the slightest hint of copyright will be yanked.

Oh, and just like Yahoo! and the other search engines, I'm sure the queue will have several months backup... it'll be just like ordering from a record club like BMG or Columbia House. Everything will be nice and delayed while the record companies figure out how to maximize their profits... and minimize everyone else's rights.
==

Judge Kaplan of the Southern District of New York does not believe fair use is ANY defense to a DMCA violation.

Judge Kaplan of the Southern District of New York does not believe fair use is ANY defense to a DMCA violation.

If reporting potential witness was indeed a real witness, and Connectix has indeed settled with Sony, what does it mean for bleem, which also is being sued by Sony for their Playstation(tm) emulator? What does it mean for all the other Playstation emulators out there (ePSXe [epsxe.com was down at last check], AdriPSX, etc.).

Face it; if someone thought they were going to lose in this case, they did not want to set precedent that would look good for the other side. By the other side letting them not setting a precedent, no ruling has been made.

So the next emulator to go on trial has nothing to cite from this case, and likely will drag out just as long as Sony v. Connectix has. In my personal view, the side that had the choice should have declined settlement, and they just should forced the completion of the case until a verdict or the other side resigned.

While I have no idea how long this link will last, here is the court schedule of Judge Legge, who was presiding over the case. Note that this week was supposed to mark the start of the jury trial. This just seems like someone wanted to run someone out of money until the last possible minute. I do not like this one bit.

Additionally, if you offered people 1 NQA for their old games, I imagine you would get hundreds of takers. Some of the games you get in might actually be saleable.

The text of the actual injunction is here (PDF format). Basically, it looks like the RIAA has to provide filenames, and both parties are responsible for using "reasonable measures in identifying variations of the filename(s)."

The injunction also seems to put the burden of identifying copyrighted material mostly on the RIAA, and the burden of removal mostly on Napster. Which makes it sound like Pig Latin schemes etc. may not harm Napster after all.

First I'll mention that over 100 comments have been posted so far and not one of them mentions the phrase "open access", nor the Consumers Union press release on the decision.

In its decision the court in part agrees with Time Warner's contention that the rules violate its First Amendment rights. I just finished reading the excellent Rich Media, Poor Democracy by Robert McChesney, which contains a chapter entitled "The New Theology of the First Amendment: Class Privilege over Democracy" devoted to this subject. McChesney criticizes the invokation of First Amendment rights to protect anti-democratic control of the media. He notes that if the purpose of the First Amendment is to protect citizens from the government's control of speech, it is unfortunate that it is being used as a weapon by corporations to do just that.

It's important to read The Appeals Court decision on Napster

This decision discusses Napster and contributory and vicarious copyright infringement. A key part:

We observe that Napster's actual, specific knowledge of direct infringement renders Sony's holding of limited assistance to Napster. We are compelled to make a clear distinction between the architecture of the Napster system and Napster's conduct in relation to the operational capacity of the system.

"The term 'harmful to minors' means any picture, image, graphic image file, or other visual depiction that--

(A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excertion;

(B) depicts, describes, or represents, in a patently offensive way with respect to minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.

Liza

ps The URL for the doc is pretty ugly. If it doesn't work the main 3rd Cir URL is http://pacer.ca3.uscourts.gov/, and the COPA challenge docket number is No. 99-1324.

"The term 'harmful to minors' means any picture, image, graphic image file, or other visual depiction that--

(A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excertion;

(B) depicts, describes, or represents, in a patently offensive way with respect to minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.

Liza

ps The URL for the doc is pretty ugly. If it doesn't work the main 3rd Cir URL is http://pacer.ca3.uscourts.gov/, and the COPA challenge docket number is No. 99-1324.

If he is accused of slandering an organization or institution, especially a government body, I don't even know if it can be litigated at all,

Netscape destroyed itself (this is another issue, but allow me the digression). As Cameron Myhrvold put it, "Netscape continued to change its corporate direction every six months, to the extent that nobody was quite sure what kind of company it was. Initially, Netscape was a Web browsing software company; then it was a Web server software company; then it was an intranet company; then it was an extranet company, then it was an enterprise messaging company; then it was an electronic commerce company; then it was a portal Web site company." Netscape lacked focus and by the time IE 4.0 came out, their product simply wasn't as good relative to the competition as it had been circa 1995.

With regard to your Word integration example, I believe that if Microsoft were to combine Word & Windows into an "interpenetrating design" (Judge Williams, Court of Appeals) a la Windows 95 and IE 4, then it would be lawful. If Office was simply included in the Windows box and you were charged the combined price of Windows & Office, then that would be an illegal tie.

Also, the fact that your employer forces you to use a particular system makes no comment on the inherent legality of that system ("My employer doesn't supply quality hard hats, therefore I blame the manufacturer of the inferior hard hats"...No, you blame your employer). If you're that upset about Windows, then you're free to complain to your employer; if they share your feelings, they're free to switch. MacOS is very slick and has quite a few applications (including MS Office).

Such is capitalism.

Did anyone else look at some of the other amicus curae briefs?

Theres this one by the "Center for Moral Defense of Capitalism" And this one by "The Association for Objective Law".

Ironically, these two entities were supposed to file a combined brief, but they couldn't agree on what it should say, so they filed briefs even though the court denied their motion to do so. It looks like TAFOL's brief will be considered as it's within the length limit, but
the CMDC has until today to file one about half as long as the one they've alread submitted.

With friends like these, MS dosn't need enemies.

There's mor interesting stuff. The parties have until Jan 5 to decide who will be seated at the table. It looks like the Clinton Administration will be determining who argues this appeal and not he Bush Administration.

Did anyone else look at some of the other amicus curae briefs?

Theres this one by the "Center for Moral Defense of Capitalism" And this one by "The Association for Objective Law".

Ironically, these two entities were supposed to file a combined brief, but they couldn't agree on what it should say, so they filed briefs even though the court denied their motion to do so. It looks like TAFOL's brief will be considered as it's within the length limit, but
the CMDC has until today to file one about half as long as the one they've alread submitted.

With friends like these, MS dosn't need enemies.

There's mor interesting stuff. The parties have until Jan 5 to decide who will be seated at the table. It looks like the Clinton Administration will be determining who argues this appeal and not he Bush Administration.

Did anyone else look at some of the other amicus curae briefs?

Theres this one by the "Center for Moral Defense of Capitalism" And this one by "The Association for Objective Law".

Ironically, these two entities were supposed to file a combined brief, but they couldn't agree on what it should say, so they filed briefs even though the court denied their motion to do so. It looks like TAFOL's brief will be considered as it's within the length limit, but
the CMDC has until today to file one about half as long as the one they've alread submitted.

With friends like these, MS dosn't need enemies.

There's mor interesting stuff. The parties have until Jan 5 to decide who will be seated at the table. It looks like the Clinton Administration will be determining who argues this appeal and not he Bush Administration.

Did anyone else look at some of the other amicus curae briefs?

Theres this one by the "Center for Moral Defense of Capitalism" And this one by "The Association for Objective Law".

Ironically, these two entities were supposed to file a combined brief, but they couldn't agree on what it should say, so they filed briefs even though the court denied their motion to do so. It looks like TAFOL's brief will be considered as it's within the length limit, but
the CMDC has until today to file one about half as long as the one they've alread submitted.

With friends like these, MS dosn't need enemies.

There's mor interesting stuff. The parties have until Jan 5 to decide who will be seated at the table. It looks like the Clinton Administration will be determining who argues this appeal and not he Bush Administration.

Liza

>>Isn't BT in danger of losing it's patent? I mean if enough substantial information can be shown that "hyperlinks" existed before BT pateted them, then can't BT lose the patent? Not being familliar with English law, can Prodigy sue BT for bringing a "frivilous" lawsuit?<<

Still doesn't really answer the question about whether they might lose their patent, but it seemed fair to clarify.

Common sense would seem to suggest that their getting the patent in the first place was inappropriate, though. Hopefully this case will be thrown out and/or BT sufficiently humiliated as to cut it out with this sort of thing.

The D.C. Circuit Court of Appeals has set up a web page for No. 00-5212, United States v. Microsoft, and No. 00-5213, New York, et al. v. Microsoft. The page includes a schedule and court documents.

In addition, you can join an official mailing list to be notified of submission of new pleadings or court orders.

According to James Grimaldi of The Washington Post, Microsoft intends to target District Court Judge Thomas Penfield Jackson in its 150-page appeal Monday. Others predict it is a distraction to demand recusal for Jackson's comments to news media, released after his decision.

As I mentioned in discussing another /. topic, the D.C. Circuit Court judges are exceptionally savvy about technology, and are equipped with Apple Powerbooks. Unfortunately, however, it appears that some of the judges on the panel will have to recuse themselves because they were Justice Department employees before becoming judges--and those judges had considerable antitrust experience, in contrast to the remaining judges.

Let's hope that the current popularity among some "pundits" to bash the judiciary does not carry over to politicizing and weakening the verdict all of us need in this case in order to carry out business in this new era.

The D.C. Circuit Court of Appeals has set up a web page for No. 00-5212, United States v. Microsoft, and No. 00-5213, New York, et al. v. Microsoft. The page includes a schedule and court documents.

In addition, you can join an official mailing list to be notified of submission of new pleadings or court orders.

According to James Grimaldi of The Washington Post, Microsoft intends to target District Court Judge Thomas Penfield Jackson in its 150-page appeal Monday. Others predict it is a distraction to demand recusal for Jackson's comments to news media, released after his decision.

As I mentioned in discussing another /. topic, the D.C. Circuit Court judges are exceptionally savvy about technology, and are equipped with Apple Powerbooks. Unfortunately, however, it appears that some of the judges on the panel will have to recuse themselves because they were Justice Department employees before becoming judges--and those judges had considerable antitrust experience, in contrast to the remaining judges.

Let's hope that the current popularity among some "pundits" to bash the judiciary does not carry over to politicizing and weakening the verdict all of us need in this case in order to carry out business in this new era.

Wouldn't you know. The wording of the judgement and the wording of the letter do not match at all well. Gosh. What a surprise.

The Judgement prohibits "(c) knowingly linking any Internet web site operated by them to any other web site containing DeCSS, or knowingly maintaining any such link, for the purpose of disseminating DeCSS . [my emphasis].

The implication is clear: a link to a DeCSS site for a purpose other than disseminating DeCSS (e.g. for the purpose of review of the whole issue, or of private study) is perfectly acceptable.

He's a smart guy, no doubt about it. I just wish he wasn't wrong.

He may me smart, for someone trained in law, but the average slashdotter has better reasoning skills (or integrity).

He practically called Jon Johansen a liar [1], claiming that he wrote DeCSS to pirate DVDs, and that since it was a tool of piracy, the reverse engineering provisions of the DMCA do not provide a defense, regardless of the fact that there are legitimate uses for such a tool. [2]

And the whole thing with that disease analogy[3], what the fuck was he smoking? Why couldn't he just liken it to a military "containment" policy, which is basically what he was saying: in order to protect society's (er, the studio's) interests, we must smack down these pirates and their programs where ever they surface, like the dirty little subversives they are. But I guess that wouldn't be politik, with the first amendment and all.

Kaplan may be trying to look like the impartial nice guy, be he'll always be a big fucking wanker because of this ruling. Remember, Malda, behind his words are men with the guns ready to take everything away from you because you want to watch a fucking movie on a piece of equipment not sactioned by the CCA.

[1] Universal vs. Reimerdes [pdf], p.35
[2] p.37
[3] p.61
--
Bush's assertion: there ought to be limits to freedom

Is in #760 for those interested.

-- fencepost

A lot of the DeCSS defeat has to do with Judge Kraplan. That decision only holds in the Southern District of New York by the way. Some judges actually have half a brain. :)

I asked CRC Press for some background of this case and they pointed me to this court document which concludes with the order to shut down mathworld.wolfram.com.

I received a reply from Kimberly Taylor at CRC Press, in response to mail criticizing the lawsuit against Wolfram & Weisstein. The response included reference to the decision of the court (Acrobat document) regarding the nature of the lawsuit, and why CRC is choosing to pursue it. In short, the decision of the court is to permit CRC to continue the suit against Wolfram, on the basis of copyright infringement once the MathWorld site was transferred from the original site to the WRI MathWorld site. They're also suing Weisstein for breach of contract.

The current proposal actually goes much further in violation of the First Amendment. It requires the blocking of already illegal (meaning not constititutionally protected) material, namely child pornography & obscenity, AND "harmful to minors material," which as far as the Internet is concerned, is in a legal grey area since the COPA decision in the 3rd Circuit. This proposal ALSO explicitly allows local schools and libraries to filter and block anything ELSE they consider inappropriate for minors. Everything else, no matter how offensive you or I might find it, is protected by the US Constitution, so filtering anything else will run into legal problems for the libraries and schools in question.

The current proposal also opens schools up for privacy litigation as it requires "either technological or supervisory" monitoring of students using the Internet. Maybe that works for in class use, probably a teacher should be around. But I think a lot of schools are going to feel pressure to use monitoring software...and then what happens to the records of where a minor surfed for 12 years? Who gets to see those? What if that kid is nominated to the Supreme Court 40 years later? Or goes through a messy divorce in his or her 20s? If there's a personally identifiable record kept, litigators are going to track it down and try to use it.

Liza

Slashdot keeps mangling my html. Specifically the closing "/a" tags. Let's try again.

Slashdot didn't "rip" that story. It published a link to that story. You're making the same indistinction that the MPAA and the Hon. Lewis A. Kaplan is guilty of.

And by no means does New Scientist own a copyright on the UNC researchers' results ...

And by no means does New Scientist own a copyright on the UNC researchers' results ...

Wired referred to the court as having "technical savvy" for putting details of this case up on a web site. What they don't mention is that the web site is not only running IIS, but the documents are accessed via a "microsoft.asp" page.

Larry Lessig presented oral arguments before the same court on Thursday, in Eldred v. Reno.

I sat in the front row and was impressed by the court's computer network that allowed judges to send messages back and forth to their law clerks, who sat to the side. Judge Douglas Ginsburg used his frequently, but the other judges didn't have laptops before them.

Larry was close enough to notice that the laptops were all Apple Powerbooks. Microsoft will have an interesting time there!

The 1999 annual report of the DC Circuit Court of Appeals includes a lot of information about the technological revolution in that court. See the PDF file.

This ought to show that this circuit court can handle advanced technological arguments and information and that there is no need for special courts for computer-related cases. I would have liked to have seen the case go directly to the Supreme Court for answers to some important points of law, but I for one feel this court can render a fair verdict and make the higher court's job easier.

From the DMCA: Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

Notice the similarity? The clause in the DMCA didn't save the DeCSS defendants from a permanent injunction and an order to pay court costs. Even though they claimed fair use. Why do you think the clause in this bill will fare any better? (Other than the fact California is outside Judge Kaplan's jurisdiction).

Federal Rule of Appellate Procedure 31 provides for 40 days for service of the initial brief, 30 days for service of the responsive brief, and 14 for service of a reply brief, for a total of something like three months. The story suggests Microsoft is looking for 60, 60, 30, or an additional two months in total, about half of which would go to the government.

Not particularly. Texas is part of the Fifth Circuit (helloooo Judge Jerry Buckmeyer), not the Ninth. According to the Ninth Circuit's website, they "[include] all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands."

That means that the decision only really applies to the Ninth Circuit. Now, it would provide a great prior-case background for a suit in another Circuit, but that judge is not bound by judicial law to rule the same way.

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Not particularly. Texas is part of the Fifth Circuit (helloooo Judge Jerry Buckmeyer), not the Ninth. According to the Ninth Circuit's website, they "[include] all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands."

That means that the decision only really applies to the Ninth Circuit. Now, it would provide a great prior-case background for a suit in another Circuit, but that judge is not bound by judicial law to rule the same way.

---

Despite Sony's squeals of anguish, this was settled law since 1993 and the Sega vs. Accolades decision. It's no suprise, and is based on the fundamental distinction between copyright law and patent law. Functionality can only be protected by patent, and only if it's novel, and for a much shorter time. Only the creative expression in a program is protectable by copyright, and only so far as to not interfere with the recreation of function. Sony was basically trying to extend copyright to protect function, and was quite properly kicked in the teeth by the courts.

The 9th Circuit Court of Appeals decision from February that explains this reasoning is here.

Read here:

United States Magistrate Judges

When Congress created the current three-tiered system of courts under Article III of the Constitution in 1896, United States Commissioners could be appointed by district judges to handle preliminary matters in criminal cases, like receiving bonds. In 1940, Congress expanded the duties of Commissioners to include trial of petty criminal offenses by consent. The Federal Magistrates Act of 1968 replaced the Commissioner with a position of Magistrate. In 1990, the title magistrate was changed to Magistrate Judge.

Magistrate Judges are appointed by judges of the district court for a term of eight years. They may dispose of minor criminal offenses and may hold bench or jury trials in civil actions on consent of the parties. In addition, Magistrate Judges handle preliminary proceedings in felony matters, report and recommend to the district court on dispositive matters in civil cases, act as masters when appointed, and manage and rule on nondispositive matters in civil cases.

Magistrate Judge Marcia A. Crone, the (gagging) judge in this case, is up for reappointment as of August 16, 2000. See my post below for more.

--

The judge is Magistrate Judge Marcia A. Crone of the United States District Court of the Southern District of Texas. You can see her info here.

The phone number given for her btw is #(713)250-5840. Call and complain.

She is also up for reappointment as of August 16 for a new 8 year term. Unfortunately comments were due March 15 -- conveniently well before the gag order expired & anyone in the public became aware of her egregious actions.

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The judge is Magistrate Judge Marcia A. Crone of the United States District Court of the Southern District of Texas. You can see her info here.

The phone number given for her btw is #(713)250-5840. Call and complain.

She is also up for reappointment as of August 16 for a new 8 year term. Unfortunately comments were due March 15 -- conveniently well before the gag order expired & anyone in the public became aware of her egregious actions.

--

Dr David Touretzky of Carnegie Mellon University, who testified on the 2600 case and was commended by the Court for his "lucid explication" and "candour", has a Gallery of CSS Descramblers, including an English prose version.

(4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.

Incidentally, reading Touretzky's wonderfully eloquent and stirring defence of what effectively amounts to civil disobedience, a sudden irony bludgeoned me unconscious like a baby seal: one day this somewhat clichéd story of the little guy taking on the faceless dehumanising monolith and prevailing through resourcefulness and passion will be made into a Hollywood Movie starring Robin Williams as Touretzky, that kid from Jerry Maguire as Jon Johansen, and Alanis Morisette as The American Constitution.

The tagline on the DVD (just above the Oscar garlands)? 'Information Wants to Be Free.'

When I was reading your comments, I immediately thought of the quote you use for your signature. You obviously answer your own questions. I also thought of a favorite quote from Einstein. He compared the limits of the universe and stupidity ;-)

The decision from Kaplan was an interesting read. I could see how he was struggling to find an intelligent response. I see no malice in his views. I hope the next court does a better job of looking intelligent ;-)

And another thing...

The decision that Judge Kaplan handed down strikes a disturbing blow against source code as a protected form of free expression. Dave Touretzky has constructed a gallery of CSS descramblers which demonstrates the difficulty of establishing when a piece of code is more expression than it is mechanism. Kaplan's decision even suggests that his finding might have been different if the CSS descrambler in question (DeCSS) was not trivially translatable to an executable device.

But where do we draw the line. When a judge deems that pseudo-code, or a precisely worded prose description of a circumvention algorithm is too easy to turn into an executable circumvention device, are we going to see those forms of expression restricted as well?

This is scary stuff...

(Other contenders: Supreme Court of New York for the County of New York (the state trial court in Manhattan), Delaware Chancery Court (where many major corporate disputes are heard), U.S. District Court for the Central District of California (the federal court for Silly Valley).)

While the Southern District's decisions are technically precedent only for future cases within that District -- which includes Manhattan, the Bronx, Westchester County and a couple other counties -- its decisions are enormously influential. Judges in other federal and state courts take opinions from the Southern District very seriously.

(Other contenders: Supreme Court of New York for the County of New York (the state trial court in Manhattan), Delaware Chancery Court (where many major corporate disputes are heard), U.S. District Court for the Central District of California (the federal court for Silly Valley).)

While the Southern District's decisions are technically precedent only for future cases within that District -- which includes Manhattan, the Bronx, Westchester County and a couple other counties -- its decisions are enormously influential. Judges in other federal and state courts take opinions from the Southern District very seriously.

Judge Kaplan argued that computer code is "a matter of First Amendment concern. But computer code is not purely expressive." He goes further: "society must be able to regulate the use and dissemination of code in appropriate circumstances."

In other words, computer code is more than just speech, and as the courts have ruled since 1968, when laws "are limited to the noncommunicative aspect" of some form of conduct, they do not violate First Amendment protections.

This is a theme explored somewhat in a recent article in Salon (for which Mr. Garbus was interviewed, incidentally):

"... there is still no formalized legal definition for software. Is it a product subject to the same Uniform Commercial Code that would hold Maytag responsible if a washing machine electrocuted its user? Or because it can be repeatedly upgraded and changed, is it more like an ISP -- a service that's governed by the terms of a contract between its operator and user? Or is it speech, worthy of protection for its contribution to "an open exchange of ideas?" No single statute or decision spells this out."

While code certainly has an aspect that could be deemed speech worthy of protection (as Professor Touretsky movingly testified), it has nonexpressive aspects as well. That seems to be at the heart of Judge Kaplan's decision, and you will have to work hard to get around that on appeal.

Hence my questions to you:
1. What level of Constitutional protection does software or computer code deserve? Will you continue, in appeal, to take the hard line that computer code is purely speech?
2. I know this may be somewhat out of your purview as lawyers, but do you hold out any hope for legislative remedy? If so, how would you want Congress would alter the DMCA?
3. And, finally, what possible implications does Judge Kaplan's ruling have for other cases relating to the legal status of software, such as the storm brewing over business method patents on software?

Thanks for your time.

Yours,
Adam Keiper
The Center for the Study of Technology and Society
Washington, D.C.

http://www.wpi.edu/~dpotter/decssruling .txt.

This is just the ruling gotten from http://www.nysd.usco urts.gov/courtweb/pdf/D02NYSC/00-08118.PDF in text form. (As much spacing as possible is maintained.)

Now the real point and question: Why is speech that can cause computers to perform an action not protected, but speech that can cause humans to action (and be much more dangerous) protected? Why can't those in the system recognize that computer code is really no different than propaganda or a user's manual, regardless of what the manual explains how to do? I've always thought that making those 'dangerous' instructions or 'dangerous' ideas was the whole point of free speech. And isn't the point to protect the concepts and ideas of the 'speech', not just a representation of those? Does that mean that if someone were to take the DeCSS source code, and rewrite it as a sonata, or even just specify that it should be read in iambic pentameter, and comment out single function call that it would then be legal? It seems like almost like thought crime. What would it take to once and for all make computer code protected under free speech? and could this case lead to it?