Shapiro neglects to mention that DMCA section 1203(b)(1) explicitly
denies judges the power to pass prior restraint injunctions.
He also doesn't mention that DMCA section 1201(c)(4) states that the
act does not "diminish" the free speech rights of computer users. This
would seem to me to avoid a new category of proscribed functional
circumvention speech.
Would someone like to defend the thesis that software's functional
elements allow it to be regulated? Food for thought:
- Software detached from hardware has no functional elements at all
- The merger principle implies copyright law cannot protect
"functional concepts" anyway (1st Amendment idea/expression dichotomy)
- The O'Brien standard which underpins the argument requires
"non-speech elements of conduct". Functionality is not conduct.
- The speech elements in the details of the engineering failure of a
security flaw cannot be expressed as effectively other than in code.
Thus the speech elements suffer more than "incidental limitations".
- Copyright law cannot regulate functionality, that is the exclusive
domain of patent law. Consider trademark's functionality doctrine and
the thesis of Sega v. Accolade.
- The DMCA is not an exercise of the copyright power, but rather the
commerce power and therefore loses the special status that the
copyright clause provides to balance the first amendment
- If the existence of a physical machine that can turn speech into
conduct reduces the scrutiny status of that speech, then will voice
recognition software reduce all spoken speech to intermediate scrutiny?
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Received on Sat Oct 28 2000 - 08:26:06 GMT