Re: Article - Internet Linking: The First Amendment Is Alive And Well.

Bryan Taylor's outline of the issues seems to me to be the best outline of the freespeech and copyright issues inherent in the DMCA anticircumvention  issues that I have seen on this list.

Bryan Taylor writes:

:
: --- Ross Runkel <rrunkel[_at_]willamette.edu> wrote:
: > Article - Internet Linking: The First Amendment Is Alive And Well.
: > http://www.lawmemo.com/ip/articles/linking.htm
:
: 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:
:
: 1) Software detached from hardware has no functional elements at all
:
: 2) The merger principle implies copyright law cannot protect
: "functional concepts" anyway (1st Amendment idea/expression dichotomy)
:
: 3) The O'Brien standard which underpins the argument requires
: "non-speech elements of conduct". Functionality is not conduct.
:
: 4) 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".
:
: 5) 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.
:
: 6) 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
:
: 7) 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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--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists