> I noted a couple of more, related, errors.
>
> The court purported to apply the O'Brien standard on the basis that
> the statute was ``content neutral'' when the statute only applies
> to software---which it held to be speech---that contains instructions
> that can be used to ``circumvent'' in violation of the DMCA.
It's like the court can mouth the words "software is speech" but they cannot bring themselves to really believe it deep in their bones.
They cited Kaplan's proposition that regulation on non-speech elements of conduct is inherently content neutral. I believe this is an attempt to get two-for-one via hand-waiving. The planks of the O'Brien test would hardly need to include a content neutral requirement if it followed from basic premise. This could be refuted by finding a single symbolic conduct case where the regulation failed the content neutrality test.
> The court purported to apply the O'Brien standard although the O'Brien
> standard only is applicable to ``expressive conduct,'' while the
> software in question, though it might be used ``functionally,'' was
> not expressive conduct, but rather ``pure speech'' as that term is
> defined in the Supreme Court's opinion in Bartnicki.
I thought it was amazing that the Court did not cite to Bartnicki (unless I missed it because it was buried). I certainly expected some heavy analogizing since Bartnicki deals directly with distribution of speech having an illegal flavor.
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