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

[phil hunt]

On Tuesday 06 November 2001  3:38 pm, Julian T J Midgley wrote:
> On Tue, 6 Nov 2001, phil hunt wrote:
> > On Tuesday 06 November 2001  2:02 pm, Ian Firla wrote:
> > > Agreed. But it was Elcomsoft, not Dmitry, who were distributing
> > > the compiled source. Dmitry was the author of some thoughts,
> > > ideas, that's all.
> > >
> > > Just as the author of the DeCSS code has been proved to be
> > > violating no laws, copyrights or otherwise by writing code
> > > which could be compiled and used 'criminally'.
> > >
> > > I maintain that this is an important judgement for Dmitry.
> >
> > This is a good point: Dmitry distributed source, even if
> > Elcomsoft didn't.
>
> This may be true, but Dmitry is being prosecuted under the DMCA,
> and not trade-secret law, so the source-code is pure speech
> argument is less of a killer (although, if his lawyers argue
> "academic research", or "fair use", I agree with both Ian and you
> that Dmitry has a better chance of being found innocent than he did
> before the DeCSS "code =3D=3D pure speech" finding).

The finding said that the 1st amendment trumps trade secret law,
because there's nothing about trade secret law in the constitution.
But the constitution does specifically grant congress the right to
make copyright laws, thus the 1st amendment can't trump that.

However, what the constitution says is: (Art I sec 8 clause 8)

  To promote the Progress of Science and useful Arts, by securing for=20
  limited Times to Authors and Inventors the exclusive Right to their=20
  respective Writings and Discoveries;

To me, this allows congress to make laws saying authors have
the right to control copies of their works; it *doesn't* give
congress the right to give authors of some works the right to=20
control copies of other people's works because the 1st set of=20
authors are worried that the works of 2nd set of authors will
reduce the value of their works.

I wonder if the DMCA could be declared unconstitutional on that=20
ground?

--=20
*** Philip Hunt *** philh at comuno.freeserve.co.uk ***