[Free-sklyarov-uk] a win for sanity! and free speech

[Julian T J Midgley]

On Tue, 6 Nov 2001, Peter Clay wrote:

> On Mon, 5 Nov 2001, Ian Firla wrote:
>
> > This is a Big Win! with a profound, imo, impact in Dmitry's case (not
> > least because the judgement comes from a California Appellate court):

Although I understand that the court isn't high enough up the tree to set
precedents for the USA as a whole (it might be for California - am not
certain on that either).

> I'm not sure that it is in Dmitry's case - Elcomsoft distributed the
> program in the US in compiled form, not source - but it's certainly
> advantageous in the other DVD cases still outstanding. (2600.com is not
> allowed to even _link_ to DeCSS, IIRC)

Furthermore, as Peter correctly pointed out earlier, this case concerned
trade-secrets legislation and not copyright legislation (ie. the DMCA).
I'd second Peter's suggestion that people read the actual court findings
document, since it provides a clear description of the difference between
trade-secrets and copyright legislation.  In brief, copyright legislation,
unlike trade-secret legislation, is founded in the US Constitution itself,
as an explicit time-limited exemption to the right to free speech
(effectively, anyway, IANAL).  This makes it difficult to bring
prior-restraint cases against it, except using the exemptions to the
copyright exemption to Free Speech, ie. "fair use, academic research",
etc.  Here, Felten is on much firmer ground than Dmitry.

In other words, whilst the recognition of computer source code as "pure
speech" is a victory, it's a very long way indeed from being sufficient to
overturn the DMCA, or indeed to allow anyone in the USA to feel safe
publishing the source code to circumvention software (eg. Aibohack chap).
Nor does it suddenly mean that those of us publishing the DeCSS source on
our websites are immune from civil suits brought under the DMCA in the
USA should we ever visit.

And it certainly doesn't mean (as I've seen incorrectly suggested on other
mailing lists) that Alan Cox can stop his campaign to get the world to
take seriously the threat posed by the DMCA to Open Source
development/Linux and friends.

All the best,

Julian

-- 
Julian T. J. Midgley                      http://www.xenoclast.org/
Cambridge, England.                          PGP Key ID: 0xBCC7863F
Beware the European Copyright Directive:  http://uk.eurorights.org/