[Air-l] Digg user 'riot' going on now

Thu May 3 11:22:58 PDT 2007

I would strenuously object to your characterization of free speech
protections, at least in the US context. While there have been
suggestions that political speech is particularly important to protect
(this approach is often associated with Alexander Meiklejohn), it is
certainly *not* the only sort of speech protected in the United
States. The courts have made very clear that the freedom of expression
includes all ideas, not just those that are political in nature.

Under certain circumstances, where there is a compelling state
interest, these rights to expression may be limited. Copyright, libel,
and certain kinds of commercial speech are examples. No claim has been
made that repeating the "magic number" is incitement--such a claim
would find little traction. The argument is that it is part of an
anti-circumvention system, and the DMCA explicitly restricts
distribution of circumventing technologies, or parts of those
technologies.

The question becomes whether this code is expressive--whether it has
meaning. In the DeCSS case, the court ruled that programming language
is a machine, that it is not expressive. That was a patently stupid
ruling, and the fact that uttering a "magic number" can result in
criminality is equally absurd.

I have a flag on my website made up of colors that decode to the key.
Also, presumably, illegal:

http://alex.halavais.net

And--get this--if you consider the above URL a "link" (and many of
your mailreaders will make it such), this email is also illegal for
linking to a page containing the code. You are witnessing a federal
crime. (Nevermind that the New York Times and CNN committed the same
crime in the DeCSS case, and that Google has multiplied this crime a
thousand-fold by linking to sites that are publishing the code.)

Even if you take a Meiklejohnian position, uttering the number at this
point *is* political speech. I have no intention of illegally copying
DVDs, and do not encourage anyone to do so, but I am publishing the
code to the web as part of an explicit argument that the DMCA is
flawed and needs to be revisited.

Alex

On 5/3/07, Alexis Turner <subbies at redheadedstepchild.org> wrote:
>
>
> On Thu, 3 May 2007 elw at stderr.org wrote:
>
> ::The AACS key being posted is just a string of numbers, fairly short.
> ::Numbers, like letters and words, ought to fall well within the bounds of
> ::free speech.... shouldn't they?
>
> People use the idea of free speech to suggest that they can say anything they
> want, but legally this is not what free speech represents.  "Free speech" is
> related only to political speech.  There are actually certain types of speech
> that are NOT protected.  I can say the word 'jackass' for instance.  By itself
> this is okay.  I am actually NOT protected if I say 'you are a jackass' (please
> note that this is for example only and not a reflection of an actual opinion).
> 'You are a jackass' is considered an example of 'fighting words,' which are
> explicitly NOT protected by the Constitution.  This is why liable is also not
> protected.  Screaming 'Fire' in a crowded movie theater is not protected.  See
> http://supreme.lp.findlaw.com/constitution/amendment01/18.html for an
> explanation of the history of Free Speech and the specific limits on it.
>
> So, a number is okay, by itself.  But that is not the question if we want to
> talk about free speech.  The question in terms of free speech
> is, can I say '00-00-00 is the key to crack DVD copy protection?'  For that
> question, see the section on seditious speech and seditious libel - words used
> to incite criminal acts.  Among other things, it leads to subquestions like 'Am
> I inciting people to crack copy protection by stating this number, or am I
> stating a fact?'  'If I am stating a fact and someone later uses it to break the
> law, am I responsible, or are they responsible?'  'If gun manufacturers are not
> responsible for people using their wares illegally, could a parallel be drawn
> here?' 'Is there any reason I might legitimately state this number that is not
> related to crime?'  'Am I inciting or advocating?' (advocating is okay, inciting
> is not)
>
> These are thoughts on the notion of free speech as related to words.  But, as
> pointed out earlier by others on the list, they are trying to argue that the
> number in question is not a word at all.  They are arguing that the number in
> question is machine code, which, like any other business object, can be
> patented, copyrighted, and controlled.  They cannot win a free speech debate on
> its face.  They could, potentially, win others.
> -Alexis
>
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