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

[Edward Welbourne]

>>  1. Source code == speech (and is therefore granted 1st amendment
>>     protections)

> except when there exist exceptions to the 1st amendment protections in
> the Constitution in the form of copyright laws...

1 is still very important, and relevant to Dmitry.  Prior to the Bunner
case, various lawyers were in a position to tacitly assert:

     Source code < speech

Now, they can't.  To put it another way: if source code weren't
protectable as speech, Dmitry would be defending commercial activity
against `copyright' (well, at least, DMCA) and

     economic expediency < copyright

is a given.  Now he'll be arguing from a position that his program
(before his employers compiled it and distributed it in the States, for
which he isn't answerable) was speech and, as such, (at least) on a par
with copyright, rather than subordinate to it.

Furthermore,
> 3. 1st amendment ! > copyright legislation (by much, anyway)./
(I take  it you're using `! >' to mean `is not greater than')
is contestable.  Let me sketch:

The 1st amendment is a part of the constitution.
The constitution also makes provision for legislators to grant
exclusivity to authors and inventors.

However, the constitution does *not* give legislators *carte blanche* to
do *whatever they want* under that heading.  The whole point of the
constitution is that it restricts what legislators can do.  Whether or
not it is enacted in pursuit of the copyright clause, if legislation -
e.g. the DMCA - abrogates some other provision of the constitution, it
can be struck down on that basis.  While the constitution provides for
there to be copyright law, that law itself is *not* part of the
constitution, so has lower standing that free speech, which *is*.

The reason ancient copyright laws aren't unconstitutional, as I
understand it from the phrasing of the judgement, is that they (via fair
use, the first sale doctrine, etc.) do make adequate provision for
protecting the public's legitimate rights under the constitution.

If it were now found that those ancient copyright laws, despite those
provisions, do enable publishers to abrogate the citizens' rights,
e.g. their 1st amendment right to free speech, then copyright
legislation could be struck down - albeit the constitution's provision
for copyright and patents would entitle the legislature to formulate
replacement laws (consistent with the constitution).

So, I *think* we can assert
   free speech > the *particular provisions* made by copyright law
even though the constitution does leave
   free speech ! > the *general principle* of copyright
though, as ever, IANAL, etc.

Given that the DMCA really does make it possible for publishers to
suppress the 1st amendment rights of American citizens, as Felten can
testify, it might realistically be doomed on this point.

Then again, the constitution gurarantees rights to the U.S.A.'s
citizens, and Dmitry isn't one.  So the argument would have to be
phrased as
  a U.S. citizen could have done the same as Dmitry, this law would then
  apply to that citizen as it does here to Dmitry, with unconstitutional
  results, consequently the law being used here should be struck down,
  consequently it's not available to hassle Dmitry with
but I'm sure the lawyers can wrangle that readily enough.

	Eddy.
--
At the helpless attempt of the author to explain to a befriended
computer scientist, why programmes would not be patentable as such,
though programme-related theories with an additional technical effect
would be, he reacted bluntly: "You are completely nuts!"
This clear pronounciation caused the author to think quite a bit.
      -- Swen Kiesewetter-Kbinger, patent examiner and ex-programmer.